Citation Nr: 21063708 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-61 201 DATE: October 15, 2021 ORDER Entitlement to an initial compensable rating for service-connected interstitial lung disease (ILD) with asbestos-induced pleural plaques is denied. FINDING OF FACT The Veteran's service-connected interstitial lung disease with asbestos-induced pleural plaques is manifested by no more than a mild disability without a significant effect on his total lung diffusing capacity. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for service-connected interstitial lung disease with asbestos-induced pleural plaques have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Codes 6833, 6845. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the United States Navy from November 1965 to October 1968. This case comes before the Board of Veteran's Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In December 2018, the Board denied the Veteran's claim for a compensable rating for service-connected interstitial lung disease with asbestos-induced pleural plaques. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2019 Order, the Court granted a Joint Motion for Partial Remand (JMPR), which partially vacated and remanded the Board's December 2018 decision. Also in December 2018, the Board remanded the issue of entitlement service connection for emphysema. The AOJ issued a Statement of the Case (SOC) in March 2019 denying service connection for emphysema. The Veteran did not file a substantive appeal within 60 days from the date that the SOC was mailed, and thus, the underlying October 2014 rating decision became final as to the emphysema claim. 38U.S.C. §7105; 38C.F.R. §20.302. The Veteran has not been awarded service connection for his emphysema, and the remaining issue on appeal is whether he is entitled to an initial compensable rating for interstitial lung disease, with asbestos-induced pleural plaque. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Chronic pleural effusion or fibrosis, diagnostic code 6845, are evaluated under the General Rating Formula for Restrictive Lung Disease (diagnostic codes 6840 through 6845). A 100 percent rating is assigned for a forced expiratory volume in one second (FEV-1) less than 40 percent of predicted value, or; the ratio of FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption(with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. A 60 percent rating is assigned for an FEV-1 of 40-to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40-to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 30 percent rating is warranted for an 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 assigned for an 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. Alternatively, the "primary disorder" may be evaluated; here, the primary ILD could be rated under Code 6833, but such standards are less friendly top the Veteran, with higher thresholds, and so Code 6845 remains applied. 38 C.F.R.§4.97, General Rating Formula for Restrictive Lung Disease. Applicable to Code 6845 in this instance, post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator tests should not be done and states why. 38 C.F.R. § 4.96(d)(4). When there is a disparity between the results of different PFTs (FEV-1, FVC, etc.), so that the level of evaluation would differ depending on which test result is used, the rater must use the test result that the examiner states most accurately reflect the level of disability. 38 C.F.R. § 4.96(d)(6). In September 2014, the Veteran was afforded a VA respiratory examination. He was diagnosed with emphysema and ILD, asbestos-induced pleural plaque. The Veteran had increased shortness of breath with intermittent bouts of bronchitis that was treated with antibiotics and tapers of prednisone. A February 2014 PFT showed that he had moderately severe obstructive disease. A March 2014 CT was repeated and showed no significant change in bilateral emphysematous, bullae, and bilateral noncalcified pleural plaques. The Veteran indicated that nothing improved with his routine use of inhaled corticosteroid. His condition required intermittent courses or bursts of systemic (oral or parenteral) corticosteroids 2 times in the past 12 months. His respiratory condition required the used of daily inhaled medications and oral bronchodilators. His respiratory condition in the past 12 months required 4 to 12 courses of doxycycline, but did not require oxygen therapy. The PFT showed pre-bronchodilator results of 91 percent for FVC, 62 percent for FEV-1, less than 60 percent for FEV-1/FVC, and 86 percent for DLCO. Post-bronchodilator was 108 percent for FVC, 71 percent for FEV-1, and 65 percent for FEV-1/FVC. The examiner noted that FEV-1/FVC was the most accurate test result to reflect his level of disability. The examiner opined that the Veteran's (nonservice-connected) emphysema was the predominant cause for the limitation in his pulmonary function. The examiner opined that the Veteran's condition impacted his ability to work. An October 2014 VA medical opinion found that the Veteran's PFT results were more related to his moderately severe obstructive disease/emphysema and not to his history of asbestos exposure. References were made to pleural plaques on CT scan that were related to asbestos exposure as well some ILD, which was another lung problem that could be caused by asbestos exposure. However, it was not possible to quantify the degree to which his asbestos-related disease affected his PFT results. A June 2015 statement from a pulmonary and sleep medicine physician indicated that the X-ray findings were "more likely than not" due to asbestos exposure in service. It was noted that recent CT scans revealed clear evidence of asbestos-related lung disease with calcified pleural plaques and some ILD, which was another lung problem that can be caused by asbestos exposure. In September 2016, an acceptable clinical evidence (ACE) examination was obtained, meaning the conclusions were based solely on the file contents. The Veteran had diagnoses of emphysema and ILD. The Veteran's condition required intermittent courses or bursts of systemic (oral or parenteral) corticosteroids 1 time in the past 12 months. The examiner noted that the Veteran's emphysema was predominantly responsible for the need of corticosteroids or immuno-suppressive medication. He used inhalational bronchodilatory therapy and inhalational anti-inflammatory medication daily. His condition did not require the use of oral bronchodilators. He used antibiotics for 10 days prescribed in January 2016 for acute bronchitis exacerbation of emphysema. His condition did not require outpatient oxygen therapy. An April 2016 PFT showed pre-bronchodilator results of 78 percent for FVC, 53 percent for FEV-1, 50 percent for FEV-1/FVC and 59 percent for DLCO. Post-bronchodilator was 117 percent for FVC, 61 percent for FEV-1, and 39 percent for FEV-1/FVC. The examiner noted that FVC results most accurately reflected the Veteran's level of disability. The examiner remarked that the Veteran's emphysema was the primary cause of his abnormal PFT results and his respiratory impairment. He noted that in the absence of emphysema it was not likely that the Veteran would have significant dyspnea, but mild dyspnea might be expected. He indicated that all of the Veteran's medications were prescribed for emphysema. The examiner explained that bronchodilators were not indicated or helpful in treating asbestosis; obstructive lung disease was not considered a manifestation of asbestosis. In an October 2020 statement, the Veteran reported that he removed asbestos while working on older submarines in the dry docks. He noted that he sucked up Agent Orange while in Vietnam and he still had problems today. He indicated that he was now on oxygen therapy. A May 2021 PFT showed pre- bronchodilator results of 122 percent for FVC, 64 percent for FEV-1, and 52 percent for FEV-1/FVC. Post-bronchodilator was 130 percent for FVC, 68 percent for FEV-1, and 52 percent for FEV-1/FVC. Dr. OS noted that that there was a moderate ventilatory defect on an obstructive basis with the percentage predicted FEV1 of 64 percent. The Veteran's airway obstruction could be due to COPD, asthma, or another obstructive process. He noted that there was no significant response to inhaled bronchodilator. In April 2021, the Veteran was afforded a VA respiratory conditions examination. The Veteran was diagnosed with emphysema, benign or malignant neoplasm or metastases of respiratory system, and ILD, asbestosis induced pleural plaques, and interstitial fibrosis. He reported that even minimal activity made him out of breath. For example, he could not get dressed without having to pace himself and he had to take deep breaths. He noted that walking short distances caused him to be out of breath. His condition did not require the use of oral or parenteral corticosteroid medications. His condition required the use of inhaled medications. He used inhalational bronchodilatory therapy daily for his condition. He condition did not require the use of oral bronchodilators or antibiotics. He was required outpatient oxygen therapy for his condition. However, it was not continuous oxygen therapy. He had a benign neoplasm. He did not have any residuals conditions or complications due to his neoplasm. The examiner opined that his condition impacted his ability to work. The examiner noted that due to COVID-19, it was medically contraindicated to perform PFTs at this time as it could pose harm to the Veteran. The examiner noted that FEV-1 accurately reflected the Veteran's level of disability. The examiner indicated that based on the PFTs of record, emphysema was predominately responsible for limitation of the pulmonary function. She explained that there was an overlap in the symptomatology for his ILD with asbestos-induced plaque and nonservice-connected emphysema. She indicated that it was difficult to distinguish which of his symptoms were attributable to which condition. However, there were some differences in the typical symptomatology for ILD, which was a restrictive disease, compared to emphysema, which was an obstructive lung disease (OLD). She noted that treatment records from 2014 to the present showed that he had symptoms of shortness of breath with exertion, cough producing mucus, fatigue, increased A/P diameter chest, wheezing, scarring in lungs with development of bullae on lung scans, exacerbation with viral illness, and improvement of spirometry flow rates with administration of bronchodilator. She noted that his symptoms were consistent with both ILD and OLD include shortness of breath with exertion, fatigue, and exacerbation with viral illness. His symptoms that were consistent with only pulmonary emphysema include cough that produces mucus, increased A/P diameter chest, wheezing, improvement of flow rates with administration of bronchodilator, and scarring of lungs with development of bullae on lung scans. For ILD with asbestos-induced plaques, one would expect his cough to be dry and hacking rather than mucus producing, his lung sounds would more likely be crackles rather than wheezes, and his flow rates would not improve with administration of bronchodilator. His recent May 2021 PFT demonstrated that his FVC was normal, FEV1 was moderately reduced, and FEV1/FVC was reduced, which was consistent with airway obstructive pattern (emphysema) rather than an airway restrictive pattern (ILD). His thorax CT clearly showed calcified pleural plaques that were findings consistent with asbestos related interstitial lung disease which had already been established to be service connected, but his symptomatology was most consistent with his diagnosis of pulmonary emphysema which was not service connected. Upon a review of the evidence, the Board finds that the Veteran's service connected ILD disability does not warrant a compensable rating. The evidence demonstrated that his ILD disability manifested by no more than a mild disability without a significant effect on his total diffusing capacity. Although the Veteran's September 2014 and May 2021 PFTs did manifest results that fall within the criteria for a higher rating, the VA examiners opined that the results were reflective of the Veteran's nonservice-connected emphysema, and not ILD. All VA examiners have opined that the Veteran's emphysema was predominately responsible for his limitation of the pulmonary function. In particular, the April 2021 VA examiner provided a detailed rationale and opinion addressing which symptoms were attributable to his service-connected ILD and nonservice-connected emphysema. She explained that while it was difficult to distinguish which of his symptoms were attributable to which condition, there were some differences in the typical symptomatology for ILD compared to emphysema. Symptoms of both ILD and OLD included shortness of breath with exertion, fatigue, and exacerbation with viral illness. His symptoms that were consistent with only pulmonary emphysema included cough that produces mucus, increased A/P diameter chest, wheezing, improvement of flow rates with administration of bronchodilator, and scarring of lungs with development of bullae on lung scans. For ILD with asbestos-induced plaques, one would expect his cough to be dry and hacking rather than mucus producing, his lung sounds would more likely be crackles rather than wheezes, and his flow rates would not improve with administration of bronchodilator. However, his treatment records from 2014 to the present, showed that his PFTS were consistent with airway obstructive pattern rather than an airway restrictive pattern. She concluded that his symptomatology was most consistent with his diagnosis of pulmonary emphysema which was not service connected. Importantly, the use of oxygen therapy is associated with emphysema. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 465. He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him and his medical records during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. The Board finds these records to be more probative than the Veteran's subjective observations. As such, the April 2021 VA examiner's opinion attributing the Veteran's respiratory function to his nonservice-connected emphysema rather than his ILD is the most probative evidence. The VA examiner reviewed the Veteran's files, performed a physical examination, took the Veteran's lay statements into account, and provided reasons and bases for her conclusions. In summary, the preponderance of the evidence is against the claim for a compensable rating for service-connected connected interstitial lung disease with asbestos-induced pleural plaques, and there are no doubts to be resolved. 38 U.S.C. § 5107(b). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.