Citation Nr: 21069836 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-02 600 DATE: November 19, 2021 ORDER Entitlement to an increased disability rating higher than 30 percent for asbestosis is denied. REMANDED Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for coronary artery disease (CAD) is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's asbestosis has not been productive of Forced Vital Capacity (FVC) of 50- to 64-percent predicted, or Diffusion Capacity of the Lung to Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 40- to 55-percent predicted, or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. CONCLUSION OF LAW The criteria for entitlement to an increased disability rating higher than 30 percent for asbestosis 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 Code 6833. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from October 1975 to September 1979 and from November 1981 to June 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in November 2019 along with issues of "entitlement to service connection for an acquired psychiatric disorder" and "entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability". Subsequently, in a June 2020 rating decision, the RO granted entitlement to service connection for an acquired psychiatric disorder and TDIU. In a separate June 2020 supplemental statement of the case, the RO continued 30 percent disability rating for the service-connected asbestosis. Also, the RO denied entitlement to service connection for coronary artery disease, hypertension, and left leg disability; and returned the matters to the Board for appellate consideration. Entitlement to an increased disability rating higher than 30 percent for asbestosis. Initially the Board notes that the rating period for the issue of increased rating for asbestosis begins from July 29, 2015, date of receipt of the increased rating claim for the service-connected asbestosis. Previously, the Veteran was granted service connection for asbestosis in an October 2013 rating decision with a noncompensable disability rating. In a November 2013 rating decision, the RO increased the disability rating to 30 percent for the service-connected asbestosis. The Veteran did not file a notice of disagreement for any of these rating decisions within one year, and these rating decisions became final. Subsequently, the Veteran filed the increased rating claim for asbestosis in July 2015, which was denied in the December 2015 rating decision, and he timely appealed the matter to the Board. The Veteran asserted the increase in severity of symptoms of the service-connected asbestosis, therefore, the Board remanded the matter in November 2019 to obtain a new VA examination to ascertain the current severity of asbestosis. Hence, the Veteran was afforded a new VA examination for asbestosis in January 2020, upon which the RO continued the disability rating of 30 percent for asbestosis. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the RO substantially complied with the directives set forth in the November 2019 remand. See Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall). The Veteran asserts that he is entitled to a disability rating in excess of 30 percent for his asbestosis. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of a disability is resolved in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability rating. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the period of claim on appeal. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's asbestosis is evaluated under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6833, which specifically contemplates asbestosis. As such, no other Diagnostic Code may be employed to rate the Veteran's disability. See Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). Diagnostic Code 6833 provides that asbestosis is evaluated under the General Formula for Interstitial Lung Disease. 38 C.F.R. § 4.97, Diagnostic Code 6833. Under that formula, a 10 percent rating is warranted for Forced Vital Capacity (FVC) of 75- to 80-percent predicted, or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66- to 80-percent predicted. Id. A 30 percent rating is warranted for FVC of 65- to 74-percent predicted, or DLCO (SB) of 56- to 65-percent predicted. Id. A 60 percent rating is warranted 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. Id. A 100 percent rating is warranted 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. Id. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are used for rating purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be performed and explains why. 38 C.F.R. § 4.96(d)(4). When evaluating a disability based upon PFT results, post-bronchodilator results are used unless they are poorer than the pre-bronchodilator results. If so, the pre-bronchodilator results are used. 38 C.F.R. § 4.96(d)(5). If the DLCO (SB) test is not of record, VA may evaluate based on alternative criteria so long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2). Turning to the evidence of record from the beginning of the appeal period, the VA examiner completed a disability benefit questionnaire (DBQ) for respiratory conditions in December 2015, in which the examiner noted the diagnosis of asbestosis and chronic obstructive pulmonary disease (COPD). The examiner stated that the Veteran's asbestosis is service related, but COPD is secondary to smoking. The examiner noted that the Veteran's respiratory condition did not require the use of oral or parenteral corticosteroid medications, however, required intermittent use of inhalational bronchodilator therapy and daily use of inhalational anti-inflammatory medication. The examiner indicated that COPD is predominantly responsible for the need for the inhaled medications. The examiner noted that respiratory condition did not require the use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. The examiner indicated that PFT was performed on November 9, 2015, which revealed pre-bronchodilator FEV-1 of 69 percent predicted, FEV-1/FVC of 68 percent, and DLCO of 71 percent predicted. No post-bronchodilator results were provided. The examiner noted that the FEV-1 percentage predicted results most accurately reflected the Veteran's level of disability. The examiner noted that post-bronchodilator testing was not completed because the decreased PFT findings were secondary to COPD and further testing would not give more information on asbestosis. The examiner noted that the Veteran's respiratory condition did not impact his ability to work. In the December 2015 rating decision, the RO continued 30 percent disability rating for asbestosis based on the December 2015 DBQ, which was appealed to the Board. In the August 2019 statement, the Veteran's representative asserted that the VA examination of record was from 2015, which does not provide the current level of severity of the symptoms of the service-connected asbestosis. Therefore, the Board remanded the matter in November 2019 to afford the Veteran a new VA examination. The Board also directed the RO to associate the November 2015 PFT results with the Claims file. In the June 2020 supplemental statement of the case, the RO indicated that the November 2015 PFT results were included in the December 2015 DBQ. Pursuant to the November 2015 Board's remand, the Veteran was afforded an in-person VA examination for respiratory conditions in January 2020, during which the examiner noted the diagnosis of asbestosis, COPD, and chronic tracheobronchitis. The examiner noted that the Veteran's respiratory condition did not require the use of oral or parenteral corticosteroid medications, however, required daily use of inhalational bronchodilator therapy and inhalational anti-inflammatory medication. The examiner noted that respiratory condition did not require the use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. The examiner indicated that PFT was performed on January 6, 2020, which revealed pre-bronchodilator FVC of 69 percent predicted, FEV-1 of 60 percent predicted, and FEV-1/FVC of 80 percent. Post-bronchodilator FVC of 72 percent predicted, FEV-1 of 58 percent predicted, and FEV-1/FVC of 81 percent predicted. No post-bronchodilator or pre-bronchodilator results for DLCO were provided. The examiner stated that DCLO testing was not indicated in the Veteran's particular case. However, the examiner noted that FEV-1 percentage predicted test result most accurately reflected the Veteran's level of disability. As a functional impact, the examiner noted that the Veteran would have shortness of breath when walking more than one block and climbing up one flight of stairs. He would not be able to perform strenuous physical work activities, including heavy lifting, jogging, running. Based on the above medical evidence of record, the Board finds that the symptoms of the Veteran's asbestosis do not warrant a disability rating in excess of 30 percent throughout the appeal period because there was no 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. 38 C.F.R. § 4.97, Diagnostic Code 6833. The Board notes that the December 2015 and January 2020 VA examiners indicated that the FEV-1 results most accurately reflect the Veteran's level of disability. FEV-1 results are considered under diagnostic codes 6840 through 6845. A higher rating of 60 percent under those diagnostic codes would require a FEV-1 of 40-55 percent predicted. See 38 C.F.R. § 4.97, Diagnostic Code 6840 6845. As noted above, pre-bronchodilator FEV-1 of 69 percent predicted was noted in the December 2015 DBQ; and FEV-1 of 60 percent predicted for pre-bronchodilator and 58 percent predicted for post-bronchodilator were noted during the January 2020 VA examination. Therefore, the Board finds that a disability rating in excess of 30 percent is not warranted even based on FEV-1 test results throughout the appeal period. As far as the Veteran's statements and description of symptoms are concerned, the Board notes that during the January 2020 VA examination, the Veteran reported symptoms of shortness of breath and its impact on everyday activities. The Board acknowledges that the Veteran may sincerely believe that his asbestosis should be granted a higher rating. However, the Board finds that the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected asbestosis. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As such, while the Board accepts the Veteran's contentions with regard to the matters, he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptoms, severity, and details of clinical features of the service-connected asbestosis. Therefore, while the Board acknowledges the Veteran's reported asbestosis symptomology, the Board also finds that the Veteran is being compensated for these symptoms in his current rating. The symptoms of the Veteran's asbestosis are consistent with, at maximum, his current 30 percent rating under diagnostic code 6833. 38 C.F.R. § 4.97, Diagnostic Code 6833. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for an increased rating in excess of 30 percent for service-connected asbestosis, and the claim is denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for a left leg disability is remanded. The Veteran asserts that he has a left leg disability, and it is related to his service. The Veteran filed a claim for entitlement to service connection for a left leg disability on July 29, 2015, which is the beginning of the appeal period for this issue. In the December 2015 rating decision, the RO denied entitlement to service connection for a left leg disability. The Veteran timely appealed the matter to the Board. The Board remanded the matter in November 2019 to obtain a VA medical opinion for a left leg disability, and whether it is related to a reported left leg pain that was noted in the January 1989 service treatment record. Consequently, the Veteran was afforded a VA examination for a leg condition in January 2020, during which the Veteran alleged that his left leg condition began in 1983 after a fire incident during his service. When the condition began the symptoms were sharp pain in groin area. However, the VA examiner noted that there are no current symptoms and opined that there is no diagnosis of a left leg condition. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner stated that there was no pathology to render a diagnosis because the physical examination, including range of motion was normal. The Board finds the above January 2020 opinion inadequate because in finding no diagnosis of a left leg condition, the examiner only relied on physical examination. Whereas the Board notes that the VA treatment records clearly indicate that the Veteran has diagnosis of restless leg syndrome during the appeal period. Specifically, during the September 2016 VA treatment, the clinician diagnosed restless leg syndrome and prescribed medication to control the symptoms. Also, the March 2019 VA treatment record noted that the Veteran has lower left leg pain. The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Consequently, a remand is warranted to obtain a new VA medical opinion on the nature and etiology of the claimed left leg condition. 2. Entitlement to service connection for hypertension is remanded. The Veteran asserts that he has hypertension, and it is related to his active military service. In support of the claim, the Veteran representative submitted an Appellate Brief in October 2021, in which he referred to a medical article and argued that exposure to asbestos is an aggravating factor for the Veteran's cardiovascular and heart disease because of its inflammatory properties. The Veteran filed a claim for entitlement to service connection for hypertension in July 2015, which was denied by the RO in the December 2015 rating decision. The Veteran timely appealed the matter to the Board. The Board remanded the matter in November 2019 to obtain a VA medical opinion on the nature and etiology of hypertension and whether it is related to the Veteran's military service, including high blood pressure reading of 120/96 noted in the February 1987 service treatment record. Consequently, the Veteran was afforded an in-person VA examination for hypertension in January 2020, during which the examiner noted the diagnosis of hypertension and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, including the high blood pressure reading noted in February 1987. As a rationale, the examiner stated that the service treatment record did not show any diagnosis of hypertension. There was an elevated blood pressure reading of 120/96 on 02/02/1987. However, the Veteran was seen for second degree burn of the 3rd and 4th digits of the right hand. Pain can increase blood pressure but not necessarily the patient has hypertension. Additionally, separation exam on 02/27/1990 was normal at 104/74. The Board finds the above January 2020 opinion inadequate because the examiner did not discuss any potential relationship of hypertension with the in-service exposure to asbestos. The Board notes that VA has conceded the in-service exposure to asbestos in an April 2010 rating decision. Therefore, the Board finds that a remand is warranted to obtain an addendum opinion to ascertain the nature and etiology of the Veteran's hypertension. Furthermore, the Board notes that the January 1983 service treatment record has a notation of chest pain for four days and high blood pressure reading of 138/90. Therefore, the Board finds that a remand is also warranted to obtain an addendum opinion that addresses whether there is a potential relationship of the Veteran's diagnosed hypertension with the in-service chest pain. 3. Entitlement to service connection for coronary artery disease ("CAD") is remanded. The Veteran asserts that his coronary artery disease is secondary to the service-connected asbestosis. In the October 2021 Appellate Brief, the Veteran's representative argued that the Veteran's heart condition is due to or aggravated by the in-service exposure to asbestos. He referred to a medical article in support of the claim. The Veteran filed the claim for entitlement to service connection for coronary artery disease in July 2015, which was denied by the RO in the December 2015 rating decision. The Veteran timely appealed the matter to the Board. The Board remanded the matter in November 2019 to obtain a VA medical opinion for a heart condition as secondary to the service-connected asbestosis. Consequently, a VA medical opinion for a heart condition was obtained in January 2020, in which the examiner opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or aggravated by the service-connected asbestosis. As a rationale, the examiner stated that coronary artery disease is usually due to blockages or narrowing of coronary arteries. Atherosclerosis is the most common cause due to cholesterol plaque build ups in the arteries. Medical literatures are lacking to support or show that asbestosis can cause coronary artery disease or plaques build ups in the coronary arteries. The examiner also explained that the Veteran has multiple respiratory conditions such as asbestosis, COPD and chronic tracheobronchitis. They all present with similar symptoms of chest pain, shortness of breath, fatigues, coughing and dyspnea on exertion. Likewise, these symptoms cannot be distinguished from that of coronary artery disease without resorting to speculation. Then the examiner cited to an article, noting the risk factors of CAD, including smoking, hypertension, high cholesterol, diabetes, and sedentary lifestyle. The Board finds the above January 2020 opinion inadequate for deciding the issue on appeal because the examiner did not discuss any direct potential relationship of CAD with in-service exposure to asbestos, as alleged by the Veteran's representative. Therefore, the Board finds that a remand is warranted to obtain an addendum opinion on the nature etiology of CAD. As noted above, the in-service treatment record has notation of chest pain. Therefore, the Board finds that a remand is also warranted to obtain an addendum opinion, which addresses whether there is a potential relationship of the Veteran's diagnosed CAD with the in-service chest pain. Furthermore, in the January 2020 VA medical opinion, the VA examiner noted hypertension as a risk factor for a heart condition, therefore, if the hypertension is deemed service-connected by the VA examiner, an opinion should also be obtained whether the Veteran's hypertension has any potential causation or aggravation relationship with CAD. The matters are REMANDED for the following action: 1. Obtain a medical opinion on the nature and etiology of the Veteran's claimed left leg disability. Further in-person examination of the Veteran is left to the discretion of the clinician providing the medical opinion. If the clinician deems such examination is necessary, then an examination should be scheduled. After reviewing the claims file and copy of this remand, the examiner should address the following: (a) Provide an opinion whether the Veteran has a diagnosis of a left leg condition anytime during the appeal period from July 29, 2015 to the present. In this regard, the examiner should address the September 2016 VA treatment record, during which the clinician diagnosed restless leg syndrome and prescribed medication. See document with entry dated 02/22/2017, titled "CAPRI" page number 36 of 363. (b) If the Veteran has a diagnosed left leg condition, then provide an opinion whether the leg condition had its onset during his period of active service, or related to an in-service injury, event, or disease, including a January 1989 in-service report of left leg pain. See document with entry dated 01/09/2014, titled "STR-Medical" page number 7 of 113. 2. Obtain a medical opinion on the nature and etiology of the Veteran's diagnosed hypertension. Further in-person examination of the Veteran is left to the discretion of the clinician providing the medical opinion. If the clinician deems such examination is necessary, then an examination should be scheduled. After reviewing the claims file and copy of this remand, the examiner should address the following: (a) Provide an opinion as to whether it is at least as likely as not that the Veteran's diagnosed hypertension had its onset during his period of active service, or related to an in-service injury, event, or disease, including the in-service exposure to asbestos and/or blood pressure reading of 138/90 with chest pain noted in January 1983, and 120/96 noted in the February1987 service treatment record. See document with entry dated 01/09/2014, titled "STR-Medical" page number 16 and 40 of 113. (b) Provide an opinion as to whether the Veteran's hypertension is at least as likely as not (i) proximately due to or (ii) aggravated beyond its natural progression by a service-connected disability, including asbestosis. See document with entry dated 10/08/2021, titled "Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief)," in which the Veteran's representative referred to a medical article on relationship of cardiovascular diseases and exposure to asbestos. 3. Obtain a medical opinion on the nature and etiology of the Veteran's diagnosed coronary artery disease. Further in-person examination of the Veteran is left to the discretion of the clinician providing the medical opinion. If the clinician deems such examination is necessary, then an examination should be scheduled. After reviewing the claims file and copy of this remand, the examiner should address the following: (a) Provide an opinion as to whether it is at least as likely as not that the Veteran's diagnosed coronary artery disease had its onset during his period of active service, or related to an in-service injury, event, or disease, including the in-service exposure to asbestos and/or blood pressure reading of 138/90 with chest pain noted in January 1983, and 120/96 noted in the February1987 service treatment record. See document with entry dated 01/09/2014, titled "STR-Medical" page number 16 and 40 of 113. (b) Provide an opinion as to whether the Veteran's coronary artery disease is at least as likely as not (i) proximately due to or (ii) aggravated beyond its natural progression by a service-connected disability, including asbestosis and/or hypertension (only if hypertension is deemed service-connected by the examiner). See document with entry dated 10/08/2021, titled "Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief," in which the Veteran's representative referred to a medical article on relationship of cardiovascular diseases and exposure to asbestos. A complete rationale for the opinions rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 4. Thereafter, readjudicate the claims on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.