Citation Nr: 21003412 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 19-15 149 DATE: January 21, 2021 ORDER Entitlement to an initial 10 percent rating for pleural plaques, also claimed as asbestosis, is granted. FINDINGS OF FACT 1. From July 13, 2012 to August 29, 2013, the Veteran’s lung disability resulted in pre-bronchodilator Forced Vital Capacity (FVC) 76 percent predicted value respectively, post-bronchodilator findings were FVC 85 percent predicted; Forced Expiratory Volume (FEV)1 pre-bronchodilator was 73 percent predicted. Pre-bronchodilator FEV1-FVC was 96 percent predicted and 95 percent predicted post-bronchodilator. 2. From August 29, 2013 to May 6, 2019, the Veteran’s lung disability resulted in pre-bronchodilator FVC 74 percent predicted, post-bronchodilator findings were FVC 84 predicted; FEV1 pre-bronchodilator was 70 percent predicted. Pre-bronchodilator FEV1-FVC was 74 percent predicted and 93 percent predicted post-bronchodilator. 3. From May 6, 2019, the Veteran’s lung disability resulted in pre-bronchodilator FVC 75 percent predicted, post-bronchodilator findings were FVC 94 percent predicted; FEV1 pre-bronchodilator was 71 percent predicted. Pre-bronchodilator FEV1-FVC was 93 percent predicted and 89 percent predicted post-bronchodilator. 4. The Veteran is service connected for a lung disability of pleural plaques, also claimed as asbestosis, effective August 23, 2012. 5. Resolving reasonable doubt in the Veteran’s favor, an initial rating for a lung disability more closely approximates a 10 percent rating. CONCLUSION OF LAW The criteria for an initial compensable lung disability rating of 10 percent, and no more, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.20, 4.97, Diagnostic Code 6845. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the Vietnam Era, serving in the Navy from February 1965 to February 1967. This matter comes before the Board of Veterans’ Appeals from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for pleural plaques due to asbestos exposure and assigned an initial rating of 0 percent disabling. In an August 2018 Notice of Disagreement, the Veteran expressed disagreement with the initial disability rating assigned. In a September 2019 Board decision, this matter was remanded to obtain a VA examination to determine the nature and etiology of the Veteran’s pleural plaques. In December 2019, the Veteran was afforded a VA examination regarding his lung conditions, and thus, the Board finds that its remand instructions were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A proper rating of a Veteran’s disability contemplates its history and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. §§ 4.1, 4.2. In determining the appropriate evaluation, many different statutes, regulations, and case law applicable to VA govern. When after careful consideration of all available data, a reasonable doubt arises regarding the degree of disability, such doubt must be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied so that decisions will be equitable and just. 38 C.F.R. § 4.6. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran seeks a higher initial rating for pleural plaques currently rated as 0 percent disabling under Diagnostic Code (DC) 6833, which is the rating criteria for asbestosis. This Veteran does not have asbestosis. See, e.g., VA examination, December 2019. However, pleural plaques are not a disability that appears in the Rating Schedule. Therefore, the condition is rated under a related disease in which function, anatomy and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Veteran’s pleural plaques manifested with pleural calcifications, and scattered interstitial fibrosis consistent with asbestos exposure, were assigned an initial rating of 0 percent under DCs 6599-6514. The RO apparently rated the condition as analogous to sinusitis. However, as will be discussed below, the Board finds that the Veteran’s service-connected disability should be evaluated under the rating criteria for restrictive lung disease in light of the findings shown on VA examination in December 2019. As the examiner did not adequately differentiate the respiratory symptoms and noted that FEV-1 more accurately reflects the level of the Veteran’s disability, the Board finds that the rating criteria of Diagnostic Code 6845 more accurately evaluates the service-connected disability and the condition should be rating under that criteria. The General Rating Formula for Restrictive Lung Diseases applies to all restrictive lung diseases (Diagnostic Codes 6840 through 6845), including chronic pleural effusion or fibrosis, which is rated under 6845. Under Diagnostic Code 6845, a 30 percent rating is warranted when testing shows FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted. A 10 percent rating is warranted when testing shows FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted. The Board also notes that DC 6833 rating asbestosis, which also relies primarily on pulmonary function test (PFT) results. The General Rating Formula for Interstitial Lung Disease (Rating Formula) provides a 10 percent rating where FVC is 75 to 80 percent predicted or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO) is 66 to 80 percent predicted. A 30 percent rating is warranted if FVC is 65 to 74 percent predicted or the DLCO is 56 to 65 percent predicted. 38 C.F.R. § 4.97, DC 6825 to 6833. When PFTs are not consistent with clinical findings, evaluations should generally be based on the PFTs. Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes with some exceptions; when evaluating based on PFTs. Post-bronchodilator results are to be used unless they are poorer than the pre-bronchodilator results, then pre-bronchodilator values should be used for rating purposes. When results of different PFTs (FEV-1, FVC, etc.) are disparate, the test which the examiner states will provide the most accurate reflection of the disability level should be used. 38 C.F.R. § 4.96(d). The evidence shows that in addition to the service-connected pleural plaques due to asbestos exposure, the Veteran has been diagnosed with chronic obstructive pulmonary disease (COPD) in July 2013 and December 2019 VA examinations, however, he is not service-connected for COPD. The September 2013 examiner stated that PFTs were reflective of COPD rather than asbestosis because DLCO did not indicate active asbestosis. However, the 2013 examiner noted pleural plaques were present and were seen on X-ray. The 2019 VA examiner was asked to indicate which symptoms were attributable to pleural plaques alone. The 2019 examiner noted that the Veteran complained of shortness of breath (SOB)—with and without exertion and must take frequent breaks at work. See December 2019 VA examination, pg. 11. The examiner noted that the Veteran has multiple respiratory conditions and used bronchodilator inhalers on an intermittent basis as needed. See id. at pg. 4. The examiner noted that the Veteran had been exposed to asbestos, as well as smoke during a boiler room fire, while in service onboard the USS Intrepid. See id. at pg.8. The examiner noted that June 2019 computerized tomography (CT) showed calcified plaques and lung scarring; X-ray findings from May 2013 also showed calcified spots in the Veteran’s lungs. The examiner noted that calcified pleural plaques were consistent with prior asbestos exposure. See id. The examiner stated that FEV-1 values were the best predictor of the Veteran’s lung disability. See id., Section 4D, at pg. 10. The 2019 examiner indicated that she reviewed the Veteran’s C-file. The examiner indicated that there were multiple respiratory conditions and that according to PFTs COPD is predominantly responsible for limitation in pulmonary function. The examiner concluded that the results of a May 2019 PFT were “consistent with COPD” and that a “diagnosis of COPD is separate and unrelated from the service-connected diagnosis [pleural plaques].” Id. at pg. 12. The examiner did not note that pleural plaques were interstitial lung disease, which includes but is not limited to asbestosis, diffuse interstitial fibrosis, fibrosing interstitial pneumonitis etc. See Respiratory Conditions Disability Benefits Questionnaire (DBQ), Section I: Diagnosis, Section 1B, Note, pg. 2. The examiner did not differentiate between the symptomatology of calcified pleural plaques or lung nodules versus those of COPD. The examiner did not explain the reasoning behind the conclusion that the PFT results reflect COPD alone except to state that COPD is an “unrelated diagnosis.” To the extent that the examiner stated that PFTs reflect COPD alone, the Board finds it conclusory. Upon review of the record, the Board finds that the Veteran indicated that his lung symptoms began after exposure to heavy smoke in a boiler room fire while in service, asbestos exposure in service, and that he has complained of fatigue at work, SOB as well as pleuritic or chest wall pain. These lay statements regarding chest wall pain were not addressed in the 2019 opinion. The opinion noted that a history of smoking but did not note that the Veteran stopped smoking in 2005. Meanwhile, the examiner did not differentiate between COPD and pleural plaques symptoms. The examiner did not address the March 2020 findings that the Veteran has scattered pulmonary nodules that measure 2-3 mm in size, which are related to asbestos exposure. See VA Treatment records, March 9, 2020. To the extent that the examiner did not adequately explain the difference in symptomology, nor address lay statements regarding pleuritic chest pain, the Board finds the 2019 opinion to be inadequate to separate the effects of the service-connected versus non-service- connected disability. When it is not possible to separate effects of a service-connected and nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet App. 181 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so)). Therefore, the question is whether the Veteran’s signs and symptoms are severe enough to warrant a compensable rating. A July 2012 a VA consultation report indicated a pre-bronchodilator FVC was 76 percent predicted; post-bronchodilator FVC was 85 percent and FEV-1 81 percent. Pre-bronchodilator FEV1-FVC was 96 percent predicted and 95 percent predicted post-bronchodilator. His DLCO was 96 percent predicted. The examiner noted that FEV1-FVC test most accurately reflected the level of disability. In August 2013, PFT indicated that the Veteran’s FVC was 74 percent and FEV-1 was 70 percent pre-bronchodilator. Post-bronchodilator readings demonstrated an FVC of 84 percent, FEV-1 of 79 percent. Pre-bronchodilator FEV1-FVC was 74 percent predicted and 93 percent predicted post-bronchodilator. His DLCO was 85 percent predicted. In May 2019, PFT indicates that the Veteran’s lung disability resulted in pre-bronchodilator FVC 75 percent predicted, post-bronchodilator findings were FVC 94 percent predicted; FEV1 pre-bronchodilator was 71 percent predicted. Pre-bronchodilator FEV1-FVC was 93 percent predicted and 89 percent predicted post-bronchodilator. The 2019 examiner noted that the Veteran’s lung disability affected his ability to work and that he was working part time at a golf course where he was able to make use of a cart instead of walking. See 2019 VA Examination, pg. 3. The examiner stated that the Veteran should be restricted to sedentary work only. See Individual Employability Statement for Respiratory DBQ, pg.1. The Veteran indicated in his 2019 examination that he is currently working part time. Thus, the Board will not address the issue of entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU). The Board has considered whether staged ratings are appropriate for the Veteran’s service-connected pleural plaques. However, the Board finds that his PFTs have been relatively stable throughout the appeal period and staged ratings are not warranted. See VA treatment records 2012-2019. In assessing the severity of the disability, the Board has considered the Veteran’s assertions regarding his symptoms to include SOB with and without exertion, fatigue, chest pain and difficulty breathing. Where there is a mismatch between symptoms and PFTs, PFTs are to be used alone. However, the examiner indicated that symptoms were consistent with PFTs. See December 2019 Examination. While pleural plaques are rated based on PFTs, such contemplates the difficulty resulting from decreased lung capability, which includes the Veteran’s breathing difficulties. As such, the Board accepts the Veteran’s statements regarding his symptoms as well as medical evidence of lung function, such as FEV-1. The Board notes that the 2019 examiner stated FEV-1 more accurately reflects the level of the Veteran’s disability. Throughout the period on appeal the Veteran’s FEV-1 values were between 71 and 81 percent and pre-bronchodilator findings were 74 percent predicted, at worst, while post-bronchodilator FEV values were between 84 and 94 percent predicted; pre-bronchodilator FEV1-FVC were between 74 and 96 percent predicted and between 89-95 percent predicted post-bronchodilator. DLCO values were not below 80 percent predicted. See July 2012, August 2013, May 2019 VA examinations. Thus, after careful consideration of the record, a reasonable doubt arises regarding the severity of the Veteran’s disability. Such doubt must be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Therefore, the Board finds that a 10 percent initial compensable rating under Diagnostic Code 6845, and not more, more closely approximates the Veteran’s level of disability. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, Associate 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.