Citation Nr: 21067482 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-60 807 DATE: November 4, 2021 ORDER A compensable disability rating for asbestosis is denied. FINDING OF FACT The Veteran did not manifest FVC of 80 percent predicted or less, DLCO (SB) of 80 percent predicted or less, a maximum exercise capacity of 20 ml/kg/min oxygen consumption or less with cardiorespiratory limitation, cor pulmonale, pulmonary hypertension, requires outpatient oxygen therapy. CONCLUSION OF LAW The criteria for a compensable disability rating for asbestosis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, General Rating Formula for Interstitial Lung Disease. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from July 1977 to August 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in May 2020, and a transcript of the hearing is of record. This matter was previously before the Board, and, in March 2021 and July 2021, the Board remanded this matter for further development. A compensable disability rating of asbestosis is denied. At issue is whether the Veteran is entitled to a compensable disability rating for asbestosis. The weight of the evidence indicates that the criteria for a compensable evaluation are not met. The Veteran first filed for service connection in June 2015, and, in May 2017, the RO granted service connection an assigned a noncompensable disability rating effective the date the claim was received. The Veteran appealed the initial disability rating. The Veteran's disability rating is assigned pursuant to the General Rating Formula for Interstitial Lung Disease. Under the General Rating Formula for Interstitial Lung Disease, a disability rating of 10 percent is assigned for Forced Vital Capacity (FVC) of 75 to 80 percent predicted or a Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted, and a disability rating of 30 percent is assigned for FVC of 65 to 74 percent predicted or DLCO (SB) of 56 to 65 percent predicted. A disability rating of 60 percent for FVC of 50 to 64 percent predicted or DLCO (SB) of 40 to 55 percent predicted or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation, and a total disability rating for FVC less than 50 percent predicted or DLCO (SB) less than 40 percent predicted, or maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or cor pulmonale or pulmonary hypertension or requires outpatient oxygen therapy. 38 C.F.R. § 4.97, General Rating Formula for Interstitial Lung Disease. The Veteran's treatment records indicate that the Veteran manifested lung symptoms throughout the period on appeal. The Veteran underwent a VA examination in May 2017. The Veteran indicated that his lung symptoms began in 2011, and that the condition had gotten progressively worse overtime. The Veteran's FVC was 81 percent of predicted. The Veteran's DLCO (SB) and exercise capacity was not measured. The Veteran was not diagnosed with cor pulmonale, pulmonary hypertension, or outpatient oxygen therapy. The Veteran testified at a personal hearing before the Board in May 2020 that the Veteran's asbestosis had gotten worse. The Veteran denied needing an inhaler, a nebulizer, or any other medication to manages his asbestosis. See Transcript. The Veteran underwent another VA examination in April 2021. The Veteran indicated that the Veteran's lung symptoms had continued to get worse. The Veteran's FVC was 73 percent predicted, and the Veteran's DLCO (SB) was 91 percent predicted. Exercise capacity was not measured. The Veteran was not diagnosed with cor pulmonale, pulmonary hypertension, or outpatient oxygen therapy. In the recent July 2021 remand, the Board made the following commend on the April 2021 VA examination. The examination results included DLCO results. The examination results, however, indicated that DLCO testing needed to be performed; despite the fact that the examination cited to the DLCO results of the May 2021 pulmonary function test. This could indicate that when the examination was initially drafted DLCO testing was required, the DLCO testing was performed, and the draft was subsequently updated after the DLCO testing was completed. Alternatively, it would indicate that the DLCO testing was somehow inadequate, and that further DLCO testing needed to be performed. Accordingly, the July 2021 Board decision remanded this matter for clarification. The Veteran provided an addendum medical opinion in September 2021. The examiner reviewed the prior pulmonary function test and indicated that the DLCO test results were adequate. The weight of the evidence indicates that the Veteran is not entitled to a compensable disability rating for asbestosis. In order to meet the criteria for a compensable disability rating for asbestosis, the Veteran needed to manifest FVC of 80 percent predicted or less, DLCO (SB) of 80 percent predicted or less, a maximum exercise capacity of 20 ml/kg/min oxygen consumption or less with cardiorespiratory limitation, cor pulmonale, pulmonary hypertension, requires outpatient oxygen therapy. The Veteran's treatment records and VA examination results do not memorialize any of these requirements. Therefore, the requirements for a compensable disability rating for asbestosis have not been met. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to a compensable disability rating for asbestosis. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a compensable disability rating for asbestosis is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, 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.