Citation Nr: 21068535 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-59 082 DATE: November 10, 2021 ORDER Subject to the laws and regulations governing the award of monetary benefits, entitlement to an initial 10 percent rating, but no higher, for interstitial lung disease with pleural plaques is granted throughout the entirety of the appeal period. REMANDED The issue of entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities, is remanded. FINDING OF FACT For the entirety of the appeal period, the Veteran's interstitial lung disease with pleural plaques has been manifested by a DLCO score no worse than between 66 and 88 percent predicted. CONCLUSION OF LAW The criteria for entitlement to an initial 10 percent rating, but no higher, for interstitial lung disease with pleural plaques have been met for the entirety of the appeal period. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 6833. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to September 1969. This appeal to the Board of Veteran's Appeals (Board) arose from August 2015 and March 2016 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). In December 2018, the Board remanded the claims for further evidentiary development. In June 2020, the Agency of Original Jurisdiction (AOJ) recharacterized the Veteran's service-connected lung disability as interstitial lung disease with pleural plaques and awarded a compensable evaluation of 10 percent, from February 18, 2019. Because the maximum benefit was not granted, the issue of entitlement to a higher evaluation remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board acknowledges that VA treatment records, including an August 2020 VA Examination for Respiratory Conditions, have been associated with the file after the issuance of the June 2020 Supplemental Statement of the Case (SSOC). After a careful review of that the evidence, the Board finds that the additional evidence was not relevant to the severity of the Veteran's interstitial lung disease, which is the disability subject to this current appeal. The examination was specific to his nonservice connected COPD, which as explained further in this decision, is not related to his service-connected interstitial lung disease. Thus, a remand to accord the AOJ an opportunity to review the additional evidence is not warranted. Entitlement to an initial compensable rating from August 8, 2013 to December 3, 2015 for pleural plaques Entitlement to an initial compensable rating from December 4, 2015 to February 17, 2019 for interstitial lung disease with pleural plaques Entitlement to an initial rating in excess of 10 percent from February 18, 2019 for interstitial lung disease with pleural plaques The Veteran's lung disability was originally evaluated as pleural plaques prior to December 4, 2015 under hyphenated Diagnostic Codes 6899-6845. From December 4, 2015, his lung disability has been rated under Diagnostic Code 6833. According to Diagnostic Code 6845 (chronic pleural effusion or fibrosis), Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66- to 80-percent predicted, is rated 10 percent disabling. 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, is rated 30 percent disabling. 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), is rated 60 percent disabling. FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; 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, is rated 100 percent disabling. 38 C.F.R. § 4.97. According to Diagnostic Code 6833 (asbestosis), FVC of 75- to 80-percent predicted valueorDLCO (SB) is 66- to 80-percent predicted, is rated 10 percent disabling. FVC of 65- to 74-percent predictedorDLCO (SB) of 56- to 65-percent predicted, is rated at 30 percent. 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, is rated at 60 percent. FVC less than 50 percent of predicted value, 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 (right heart failure) or pulmonary hypertension, or the need for outpatient oxygen therapy, is rated 100 percent disabling. 38 C.F.R. § 4.97. At the May 2015 VA Examination for Respiratory Conditions, the Veteran reported having chronic dyspnea with any activities, chronic mildly productive cough and fatigue. The medications he used to treat his chronic obstructive pulmonary disease (COPD). Pulmonary Function Tests (PFTs) results were noted as follows: FVC was 57 percent predicted; FEV-1 was 48 percent predicted; FEV-l/FVC was 63 percent predicted. DCLO and post-bronchodilator scores were not recorded. The examiner reasoned that it was not indicated for the Veteran's condition. The Veteran had multiple respiratory conditions which included emphysema, COPD, asthma, chronic bronchitis, and pleural plaques. He did not have asbestosis. The examiner remarked that it is more likely than not that Veteran's pleural plaques are related to asbestos exposure while he was in the military. It is less likely than not that Veteran's shortness of breath and his cough are related to any asbestos exposure and more likely than not are related to his long smoking history. In a private medical record, it was noted that an April 2015 CT scan revealed calcified pleural plaques consistent with asbestos exposure and suggested basilar interstitial disease. The assessment provided was that the pleural plaques were consistent with asbestosis. See June 2015 Private Medical Record. In a February 2019 private medical record, the DLCO score was noted to be 73 percent predicted. See February 2019 Private Medical Record. At the October 2019 VA Examination, the examiner explained that the Veteran continued to have documentation of minimal to mild asbestos-related lung disease (asbestosis) as evident from calcified pleural plaques. He also had progressive COPD. The most recent PFTS document that the severe obstructive lung disease was less likely depictive of changes from his asbestos-related lung disease and at least as likely as not depicted changes from his COPD. His progression of pulmonary symptoms and hospitalization are likely reflective of his COPD and less likely as not reflective of his asbestos related lung disease. His PFTS lung volumes (FEV-1, FVC, and ratio) reflect the severity of his COPD and less likely as not reflect the severity of his asbestos related lung disease. His DLCO score reflects his asbestos related lung disease. After a thorough consideration of the evidence of the record, the Board finds that, for the entire initial rating period, the Veteran's lung disability should be rated under Diagnostic Code 6833 for asbestosis under the General Rating Formula for Interstitial Lung Disease. Medical records have shown that the presence of pleural plaques have been indicative of interstitial lung disease. In order to provide uniformity in the rating for the initial appeal period, the Board determines that the Veteran's disability should be rated under Diagnostic Code 6833 under the General Rating Formula for Interstitial Lung Disease. Furthermore, the Board finds that, for the entire initial rating period, the Veteran is entitled to a 10 percent rating under Diagnostic Code 6833 for his interstitial lung disease. The VA examiners stated that the DLCO score best represented the severity of the Veteran's interstitial lung disease. The DLCO was not taken at the May 2015 examination at the time. However, as stated previously, private medical records showed that the extensive calcified pleural plaques were indicative of interstitial lung disease. In June 2015, he was assessed to have asbestosis. Thus, in resolving reasonable doubt, the Board finds that, for the entire initial rating period, the Veteran is entitled to a compensable (10 percent) rating for his interstitial lung disease with pleural plaques. However, the evidence does not show that at any time during appeal period has the Veteran's DLCO score reached 56 to 65 percent predicted. This score is necessary for the next higher rating of 30 percent under Diagnostic Code 6833. The Board acknowledges that the Veteran has severe COPD. However, it has been determined that his COPD is unrelated to his interstitial lung disease. Therefore, assigning a separate or higher rating for COPD is not warranted in this matter. Additionally, the Board notes that the AOJ has awarded service connection for heart conditions associated with his lung disease (atrial fibrillation and chronic congestive heart failure). Therefore, any of those associating symptoms and resulting limitations are being compensated by those ratings assigned. In summation, for the entirety of the appeal period, the Veteran is entitled to a 10 percent rating, but no higher, for his interstitial lung disease with pleural plaques under Diagnostic Code 6833. REASONS FOR REMAND Service Connection OSA, to include as secondary to service-connected disabilities After a thorough review of the Veteran's claims file, the Board finds that additional evidentiary development is necessary prior to the adjudication of his claim for service connection for OSA. In the prior remand, the Board directed the AOJ to obtain an opinion addressing whether the Veteran's OSA was caused or aggravated by his service-connected disabilities, specifically his interstitial lung disease. In November 2019, the VA examiner provided negative nexus opinion. The examiner reasoned that the Veteran's current COPD limited his ability to comply with treatment with CPAP for his sleep apnea due to the requirements for supplemental oxygen. His asbestos related lung disease, however, did not impact treatment for his OSA. As stated previously, the Veteran is now service connected for atrial fibrillation and chronic congestive heart failure associated with lung disease. In a February 2021 VA treatment note, it was noted that the Veteran was hospitalized in December 2020 for hypoxic and hypercarbic failure. It furthered indicated that he had "COPD exacerbated by diastolic heart failure." He was successfully treated with oxygen and BiPAP. His history of severe OSA was noted. See August 2021 VA Medical Treatment Records (CAPRI). This evidence indicates that his now service-connected heart conditions could aggravated his OSA. Therefore, in order for the Board to make a clear and informed determination in this matter, the AOJ must obtain another opinion that specifically addresses whether the Veteran's OSA is caused or aggravated by his service-connected heart conditions. Accordingly, this matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records. The AOJ should secure any necessary authorizations. Copies of all available private and VA documents should be associated with his file. If the records are unavailable, inform him of such and of the efforts made to obtain them. He should also be notified that he may submit any such records himself. All efforts should be recorded in the claims folder. 2. Once all available, relevant medical records have been received and associated with the claims file, the AOJ should refer the Veteran's entire claims file to a medical professional of appropriate expertise to provide an addendum opinion (or, if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination) to address the nature and etiology of his OSA. The claims file and a copy of this REMAND should be made available to the examiner for review. After record review and/or examination, the VA examiner should opine, with supporting rationale: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's OSA is caused by his service-connected atrial fibrillation or his service-connected chronic congestive heart failure? (b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's OSA is aggravated (i.e., worsened beyond the natural progress) by his service-connected atrial fibrillation or his service-connected chronic congestive heart failure? In addressing these questions, the examiner should refer to the VA treatment records discussing the Veteran's heart conditions and OSA. If the examiner deems that the Veteran's OSA is not due to, or aggravated by, the service-connected atrial fibrillation and chronic congestive heart failure, the examiner should, if possible, identify the cause considered more likely and explain why that is so. If the examiner determines that the Veteran's OSA is aggravated by either of his service-connected heart conditions, the examiner should report the baseline level of severity of the condition prior to the onset of aggravation. If some of the increase in severity of OSA is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. [Causation and aggravation are independent concepts. The examiner must provide separate findings and rationales for causation and aggravation.] The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Review the record, conduct any other development deemed necessary, and readjudicate the appeal. If the benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Then, if indicated, the case should be returned to the Board for further appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination that may be scheduled may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.