Citation Nr: 21002341 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 19-02 878A DATE: January 13, 2021 ORDER Entitlement to an initial compensable rating for asbestosis with pulmonary nodules is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s asbestosis with pulmonary nodules is manifested by a Forced Vital Capacity (FVC) of 75 to 80 percent predicted or by a Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB))is 66 to 80 percent predicted. CONCLUSION OF LAW The criteria for entitlement to a compensable initial rating for asbestosis with pulmonary nodules have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.96, 4.97, Diagnostic Code 6833. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1952 to October 1953. As a matter of procedural background, the Board of Veterans’ Appeals (Board) denied the claim for an initial compensable rating in a July 2019 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 Order, the Court granted a Joint Motion for Partial Remand (JMPR), reversing the prior denial and remanding it to the Board for further development and appellate review. The claim was most recently before the Board of Veterans’ Appeals (Board) in July 2020 when it was remanded for additional development. The Board finds there has been substantial compliance with the remand directives for the claim decided herein.  Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an initial compensable rating for asbestosis with pulmonary nodules. The Veteran claims entitlement to a compensable rating for his service-connected asbestosis with pulmonary nodules. That rating has been in effect since March 24, 2014. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s service-connected asbestosis with pulmonary nodules is rated under Diagnostic Code 6833, for asbestosis. 38 C.F.R. § 4.97, Diagnostic Code 6833. Diagnostic Code 6833 provides ratings based on the results of pulmonary function tests. A 10 percent rating is warranted when the FVC is 75 to 80 percent predicted, or; the DLCO (SB) is 66 to 80 percent predicted. Id. A 30 percent rating is warranted when the FVC is 65 to 74 percent predicted, or the DLCO (SB) is 56 to 65 percent predicted. Id. A 60 percent rating is warranted when the FVC is 50 to 64 percent predicted, or; DLCO (SB) is 40 to 55 percent predicted, or; maximum exercise capacity is 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. Id. A 100 percent rating is warranted when FVC is less that 50 percent predicted, or; DLCO (SB) is less than 40 percent predicted, or; maximum exercise capacity is less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; or cor pulmonale or pulmonary hypertension, or; requires outpatient oxygen therapy. Id. Post-bronchodilator studies are required for disability evaluation purposes except when the post-bronchodilator studies are poorer than the pre-bronchodilator results, when the results of pre-bronchodilator pulmonary function tests are normal, or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4), (5). When there is a disparity between the results of different pulmonary function tests, VA must use the test result that the examiner states must accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). Coexisting respiratory conditions may not be assigned separate ratings. 38 C.F.R. § 4.96(a). The Board has reviewed the Veteran’s medical records but finds that the preponderance of the evidence weighs against finding that an increased rating for asbestosis with pulmonary nodules is warranted. A March 2014 chest scan found no pulmonary embolus, noncalcified nodules in the Veteran’s lungs as well as a calcified granuloma in the right lower lobe. He was diagnosed with asbestos-related pleural disease and stable pulmonary nodules. May 2014 pulmonary function testing found FVC of 83 percent predicted, DLCO (COR) of 85 percent predicted, Forced Expiratory Volume (FEV)-1 of 89 percent predicted, and FEV-1/FVC of 107 percent. In August 2014, the Veteran reported feeling short of breath and having chest pain when he takes a long, deep breath. In October 2014, the Veteran complained of chest pain and shortness of breath. An October 2014 private chest CT scan found evidence of prior asbestos exposure. There was no consolidation or pleural effusion. In October 2014 the Veteran was noted to have atypical chest pains and mild exertional dyspnea likely related to lung disease. In September 2015 a computed tomography (CT) relevantly was negative for acute pulmonary emboli, the lungs were grossly clear, stable subcentimeter pulmonary nodules, eccentric mural thrombus at the aortic isthmus extending inferiorly along the descending aorta. While opacification of the aorta is suboptimal, no definite evidence of intramural hematoma, ulceration, or aortic dissection. This can be further evaluated with a CTA chest aortic dissection protocol. Eccentric mural thrombus may be slightly worsened. Calcified pleural plaque suggestive of underlying asbestos exposure. In June 2016, the Veteran reported that his health had declined since his 2014 pulmonary function test, and that he now had shortness of breath with anxiety or mild exertion. A July 2016 pulmonary diagnostic study found FVC of 59 percent, DLCO (COR) of 36 percent predicted, FEV-1 of 69 percent predicted, and FEV-1/FVC of 115 percent predicted. He was found to have moderate restrictive lung disease, and there was no improvement after additional use of the bronchodilator. In October 2016 the Veteran had a LVEF of 67 percent. In a March 2017 VA treatment note, the Veteran was reported to have lower lobe pulmonary emboli with decreased thrombus burden. There was an increased size in the subpleural peripheral opacity in the left lower lobe which may represent a pulmonary infarction. Additionally, a March 2017 treatment note indicated that the Veteran was hospitalized for pulmonary emboli. In March 2017, the Veteran went to a private physician and reported a history of asbestos exposure and a pulmonary embolism. A CT scan was noted to show the pulmonary embolism was improving the clot burden. Left ventricle ejection fraction was 55 percent. In April 2017, the Veteran had normal respiratory effort, and lungs were clear and equal bilaterally. The physician wrote that the Veteran had no significant side effects of asbestos. VA treatment records show notations of pulmonary embolism. See, e.g., May 2017. In August 2017 the Veteran was noted to have chronic pulmonary embolism and COPD. The Veteran attended a VA examination in August 2017. The Veteran reported having shortness of breath, chest pain, as well as shoulder and neck pain. The Veteran’s respiratory condition did not require the use of oral or parenteral corticosteroid medication or oxygen, but he did use an inhalational bronchodilator daily. Pulmonary function testing found pre-bronchodilator results of FVC of 84 percent predicted, DLCO of 105 percent predicted, FEV-1 of 79 percent predicted, and FEV-1/FVC of 73 percent. Post-bronchodilator results were FVC of 79 percent predicted, FEV-1 of 85 percent predicted, and FEV-1/FVC of 82 percent. The examiner indicated that the test result that most accurately reflected the Veteran’s level of disability was FEV-1/FVC. The examiner wrote that the Veteran’s condition could adversely impact his level of exertion and endurance. In July 2018 the Veteran was noted to have pleural plaques due to asbestosis. An August 2018 pulmonary consultation found that a July 2018 CT chest scan showed only small nodes that did not meet radiographic size criteria to be worrisome nodes, there was no mass in the right lower lobe, and no further work up was required. The provider wrote that the calcified nodules were benign, and none of the findings contributed to the Veteran’s reported shortness of breath. At September 2018 VA examinations the examiner found that the Veteran was severely disabled, but not due to any service-connected disability. He noted that the Veteran had no respiratory compromise at rest or while walking into the office. The examiner wrote that the Veteran had a separate lung process due to recurrent pulmonary embolism (blood clots) which was unrelated to his pulmonary nodules, was being treated, and was in remission. The Veteran had no other findings on a recent CT imaging scan concerning asbestos-related disease. In February 2019 it was noted that the pleural plaques and ground glass opacities did not cause any kind of chest pain and were usual incidental findings on images done for other causes. In March 2019 the Veteran was noted to have pulmonary embolism. At an April 2019 VA examination, the Veteran reported having frequent cough and shortness of breath on exertion. He used a bronchodilator daily. Pulmonary function testing found FVC of 86 percent predicted, DLCO of 99 percent predicted, FEV-1 of 92 percent predicted, and FEV-1/FVC of 104 percent. Post-bronchodilator tests were not performed because pre-bronchodilator results were normal. The physician wrote that the Veteran’s diagnosis was asbestosis with pulmonary nodules. In June 2019 the Veteran was noted to have chest pain and shortness of breath. The provider reported that the Veteran had a history of asbestos exposure and documented pleura plaques. The provider noted that the pleura proximal usually do not cause any pain or pulmonary problems. The provider indicated that pulmonary function tests (PFTs) were ordered to evaluate pulmonary function. In October 2019 the Veteran was noted to be scheduled for a PFT. In January 2020 the Veteran’s shortness of breath came and went and was related to pain per his spouse. He was able to walk the hallway and to maintain his oxygen level above 94 percent. He had not had a recent PFT. He denied cough, fever, and night sweats. In January 2020 he was negative for new or worsening dyspnea. In June 2020, the Veteran’s spouse reported that she was concerned that the Veteran had ongoing symptoms of chest pain and shortness of breath for years that were not new. She stated that they were different and seemed a little worse and she was concerned that he needed more cardiac testing. They were advised to go to the nearest emergency room for new or worsening symptoms of palpitations, syncope or near-syncope, chest pain, dyspnea or shortness of breath and seek emergent care for any acute change in clinical status. In a September 2020 VA examination report, it was reported that the PFTs in July 2016 were “spurious.” The PFTs in May 2014 showed mild restrictive lung disease, with a normal DLCO. The PFTs in August 2017 had similar parameters with minimal obstructive and mild restrictive lung disease. The DLCO was 105 (high normal). Additionally, DLCO in April 2019 was 99, with "no impact on diffusion", per the report. The values in July 2016 showed moderate restrictive lung disease with severely reduced DLCO. The examiner reported that conditions that impact DLCO, generally do not get better, and do not fluctuate from normal to frankly abnormal and back to completely normal, without symptoms or a defining event. The Veteran had a history of pulmonary embolism in 2012 and 2017. There was no evidence of any singular pulmonary event in 2016 to account for the spurious results. The examiner found that the likelihood of the Veteran being asymptomatic with pulmonary embolisms in 2016 is near zero. It was almost medically impossible for the Veteran to go a year with undiagnosed and untreated pulmonary emboli, given his history and the depth of his medical care. Therefore, the examiner found that the records in 2016 do not reflect the Veteran's current status nor his status in 2014. The 2016 PFTs, more likely than not, do not reflect the Veteran's true respiratory status in 2016. There are no records suggestive of pulmonary embolisms in a medical community aware of the Veteran's history, as well as documented in the medical records. If an unexplained/undocumented event accounts for these DLCO and other changes, it clearly resolved or improved dramatically within one year. There was no clear explanation for the Veterans claimed increase in symptoms. Pulmonary emboli do not spontaneously resolve. The Board observes that the Veteran’s VA treatment records also show treatment for pulmonary emboli (blood clots). See, e.g., VA Treatment in March 2017 and August 2017. In March 2017, the Veteran was hospitalized for blood clots in his lungs. A March 2017 CT scan found lower lobe pulmonary emboli. The claimant was started on an anticoagulation medication to treat blood clots. The Veteran is not, however, service connected for pulmonary embolism, and there is no medical evidence indicating that the Veteran’s pulmonary emboli are symptoms of or secondary to his asbestosis with pulmonary nodules. Indeed, a September 2018 VA examiner specifically wrote that the appellant’s pulmonary embolism was a separate and unrelated condition. The Board therefore will not consider the Veteran’s symptoms or treatment related to this diagnosis when evaluating his service-connected asbestosis with pulmonary nodules. The majority of the Veteran’s VA and private treatment records show that his pulmonary function testing has not met the criteria for a compensable rating. A 10 percent evaluation for asbestosis requires an FVC of 75 to 80 percent predicted or a DLCO of 68 to 80 percent predicted. The Veteran’s pulmonary function test results were above these levels at his May 2014 testing, August 2017 testing, and April 2019 testing. The Board notes that the August 2017 test showed a post-bronchodilator result of FEV of 79 percent predicted, but the pre-bronchodilator results were 84 percent predicted, and the better result is to be used. 38 C.F.R. § 4.96(d)(5). The only test which showed worse pulmonary function tests results was the Veteran’s testing performed in July 2016. The Board acknowledges that this test showed FVC of 59 percent predicted and DLCO of 36 percent predicted. These scores are significantly worse than other test findings. In September 2020 a VA examiner considered the July 2016 examination results and noted that they were “spurious.” The pulmonary function tests in May 2014 showed mild restrictive lung disease with a normal DLCO. The pulmonary function tests in August 2017 were noted to have similar parameters with minimal obstructive and mild restrictive lung disease. The DLCO was reported as 105 and described as high normal. The DLCO in April 2019 was 99, with no impact on diffusion. The examiner stated that the July 2016 values showed moderate restrictive lung disease with severely reduced DLCO. The examiner reported that the conditions that impact DLCO generally do not get better and do not fluctuate from normal to frankly abnormal and back to completely normal without symptoms or a defining event. The examiner considered the Veteran’s history of pulmonary emboli and found no evidence of a singular pulmonary event in 2016 to account for the July 2016 test results. The examiner noted that it was almost medically impossible for the Veteran to go a year with undiagnosed and untreated pulmonary emboli, given his history and the depth of his medical care. Therefore, the examiner found that the records in 2016 do not reflect the Veteran’s current status nor his status in 2014. The 2016 PFTs, more likely than not, do not reflect the Veteran’s true respiratory status in 2016. There are no records suggestive of pulmonary emboli in a medical community aware of the Veteran's history, as well documented in the medical records. If an unexplained/undocumented event accounts for these DLCO and other changes, it clearly resolved or improved dramatically within one year. There is no clear explanation for the Veterans claimed increase in symptoms. Pulmonary emboli do not spontaneously resolve. As such, the Board finds that the July 2016 test results represent an outlier, and are not representative of the severity of his functional impairment due to the service connected asbestosis with pulmonary nodules. The Veteran has reported having shortness of breath with exertion, but both VA and private treatment records show that he has numerous other diagnoses which could contribute to this, including pulmonary emboli, coronary artery disease and hypertension. There are no indications in his medical records that the Veteran has any significant disability caused by asbestosis and pulmonary nodules, nor has he required any active treatment for this disorder other than the use of a bronchodilator inhaler. The March and April 2017 private evaluations found no side effects from asbestosis in the Veteran. His lungs were equal and clear. An August 2018 pulmonary consultation found that the CT chest scan showed only small nodes that did not meet the size criteria to be “worrisome,” and his calcified nodules were benign. The provider did not see any findings in the lungs that would contribute to the Veteran’s claims of shortness of breath. The September 2018 VA examiner found that the Veteran had no problems with respiration at rest or while walking. The evidence, when viewed in its entirety, therefore demonstrates a disability picture that is more consistent with the findings of the May 2014, August 2017, and April 2019 test results, and not with the findings of the July 2016 test results. See 38 C.F.R. § 4.2. Because the Veteran’s diagnosis has been clearly designated as asbestosis with pulmonary nodules, and because he is not service connected for any restrictive lung disease, trachea or bronchi disease, mycotic lung disease, bacterial infection of the lung, or pulmonary vascular disease, it would be inappropriate to apply any other rating criteria. See 38 C.F.R. § 4.97, Diagnostic Codes 6600-6604, 6730-6732, 6817, 6820, 6822-6824, 6834-6939, 6840-6847. Indeed, rating by analogy is not appropriate where the service-connected conditions already have a specific diagnostic code. See Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that “[a]n analogous rating... may be assigned only where the service-connected condition is ‘unlisted.’”). The Board also notes that while the August 2017 examiner indicated that the test result most indicative of the Veteran’s disability level was the FEV-1/FVC, it does not allow for a higher rating when rating asbestosis. The Board next observes that the Veteran's representative challenged the adequacy of a VA medical opinion dated in September 2020 in a December 2020 statement. The Veteran’s representative’s argues that the medical opinion is not adequate because the opinion provider is a physician of obstetrics/gynecology and unlikely to possess the expertise and experience required to fully evaluate and opine on a complex condition in the field of pulmonology. Thus, as the Veteran’s representative has challenged the competency of the medical examiner, VA must satisfy its burden of persuasion as to the examiner’s qualifications and the Board must make factual findings regarding the qualifications and provide reasons and bases for concluding whether the examiner was competent to provide the opinion. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). The Board notes that the Veteran’s representative did not identify that the opinion provider reported that he is a provider in “General Practice, Obstetrics and Gynecology.” While the physician has identified Obstetrics and Gynecology, he has also identified “General Practice” as an area of specialization. As the examiner in September 2020 is a medical doctor in General Practice, the Board finds that the examiner is competent to render the opinion provided. Based on the foregoing, the Board finds that the noncompensable rating currently assigned to the Veteran is appropriate, and that the evidence of record preponderates against a finding that the criteria for a higher rating have been met. As such, the Veteran’s claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against assignment of a higher rating. See 38 U.S.C. § 5107(b). The Veteran’s representative has also raised the issue of whether a higher evaluation is warranted on an extraschedular basis and identifies symptoms that are argued to not be accounted for in the rating criteria of the applicable Diagnostic Code, including pulmonary embolism, plural plaque thickening, shortness of breath, frequent coughing, and “ground-glass” appearance in the lungs. The Board has reviewed all evidence of record and finds that an extraschedular rating is not warranted. As noted above, the Veteran’s pulmonary emboli are not part associated with the Veteran’s service-connected disability. The Board finds that shortness of breath is contemplated in the relevant rating criteria due to the evaluation based upon pulmonary function tests. Furthermore, the Board finds that the pleural plaques and the “ground-glass” appearance in the lungs are noted to be incidental findings that do not impact did not cause any kind of chest pain. After review of the record, the Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria. See Thun v. Peake, 22 Vet. App. 111 (2008). In sum, the Board finds that the evidence does not support a rating in excess of the noncompensable rating already assigned, and the claim is denied. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.