Citation Nr: 21072213 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-20 765 DATE: December 2, 2021 ORDER Entitlement to a rating of 100 percent for service-connected pleural plaque claimed as lung condition due to asbestos exposure, since April 17, 2017, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Since April 17, 2017, the Veteran's pleural plaque claimed as lung condition due to asbestos exposure has been manifested by pulmonary hypertension. 2. The Veteran has been awarded a 100 percent disability rating for a lung disability for the entire period on appeal; there is no additional disability or disabilities separately rated at 60 percent or more; there is no other disability or disabilities that could support TDIU. CONCLUSIONS OF LAW 1. The criteria for a rating of 100 percent since April 17, 2017, for pleural plaque claimed as lung condition due to asbestos exposure have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code 6833-6602. 2. The criteria for entitlement to TDIU are not met. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 4.16, 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1951 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2018 and November 2020 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a September 2018 decision granting an increased rating of 30 percent for the Veteran's pleural plaque disability and denying a compensable rating for the Veteran's hearing loss disability. This case now returns to the Board after having been appealed to the United States Court of Appeals for Veterans Claims (Court) and remanded to the Board by a Joint Motion for Partial Remand (JMPR) in May 2019. The Board's decision granting the increased rating of 30 percent for the pleural plaque disability and denying a compensable evaluation for hearing loss was not disturbed. In the May 2019 JMPR, the Parties found that the Board erred in evaluating the disability on appeal. The Parties noted that the disability is rated under the applicable rating criteria, 38 C.F.R. § 4.97 DC 6833. The Board relied on a December 2017 VA examination where the examiner failed to administer appropriate testing as directed under the criteria, particularly diffusing capacity of the lungs for carbon monoxide (DLCO) testing and failed to adequately explain why. The Parties further noted that a June 2018 private record revealed that the Veteran had pulmonary artery hypertension which would warrant a 100 percent rating, but the Board failed to discuss whether the private treatment record could warrant a higher rating. In December 2019, the Board remanded the matter to the RO and directed additional development in compliance with the JMPR to occur regarding the claim for a rating higher than 30 percent for the lung disability. The matter last appeared before the Board in March 2021, at which time the issues were remanded to obtain outstanding treatment records and obtain an examination in compliance with prior Court and Board remand directives. Since then, numerous private treatment records have been associated with the claims and the Veteran underwent a VA examination in May 2021. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two ratings shall be applied, the higher rating 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. 38 C.F.R. § 4.97 Schedule of ratings of the respiratory system The Veteran's pulmonary disease was originally rated as zero percent disabling under 38 C.F.R. § 4.97 Diagnostic Code 6833 for pleural plaque claimed as lung condition due to asbestos exposure, effective January 4, 2012, as noted in an October 2015 rating decision and continued as such in an August 2016 rating decision. The Veteran then filed a claim for an increased rating with an intent to file date of April 17, 2017, in a September 217 claim. The condition was then evaluated under Diagnostic Code 6833-6604, for pleural plaque claimed as lung condition due to asbestos exposure, but a compensable rating was still denied in a January 2018 rating decision, which is the subject of the instant appeal. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. The Board then issued the September 2018 order granting an increased evaluation of 30 percent, which was effectuated in a February 2020 rating decision. Then, during the course of the appeal, the Veteran was granted an increased evaluation rating of 60 percent for his service-connected pleural plaque claimed as lung condition due to asbestos exposure, under Diagnostic Code 6833-6602, effective May 27, 2021, the date of his last VA examination. Diagnostic code 6833, asbestosis, is rated under the general rating formula for interstitial lung disease. The general rating formula provides for a 10 percent disability rating where the evidence shows Forced Vital Capacity (FVC) in 1 second of 75 to 80 percent predicted; or DLCO by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted. A 30 percent rating is warranted with FVC of 65 to 74 percent; or a DLCO (SB) of 56 to 65 percent predicted. A 60 percent evaluation requires 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. A 100 percent evaluation requires demonstrated evidence of an FVC of less than 50 percent of predicted value; or DLCO (SB) of less than 40 percent of 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 pulmonary hypertension or requires outpatient oxygen therapy. Under Diagnostic Code 6602, a 10 percent rating is warranted for Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted for FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is warranted for FEV-1 of 40 to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is warranted for FEV-1 less than 40-percent predicted, or; FEV 1/FVC that is less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. A note to diagnostic code 6602 states that, "in the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record." 38 C.F.R. § 4.97, Diagnostic Code 6602. Ratings under Diagnostic Codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. However, in cases protected by the provisions of Public Law 90-493, the graduated ratings of 50 and 30 percent for inactive tuberculosis will not be elevated. 38 C.F.R. § 4.96 (a). Under 38 C.F.R. § 4.96(d), pulmonary function tests (PFT's) are required to evaluate the conditions listed in diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845 except: (i) when the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less. If a maximum exercise capacity test is not of record, evaluate based on alternative criteria; (ii) when pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed; (iii) when there have been one or more episodes of acute respiratory failure; or (iv) when outpatient oxygen therapy is required. If the DLCO (SB) test is not of record, evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. When the PFT's are not consistent with clinical findings, evaluate based on the PFT's unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. Post-bronchodilator studies are required when PFT's are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. When evaluating based on PFT's, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. When there is a disparity between the results of different PFT's (FEV-1, FVC, etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. If the FEV-1 and the FVC are both greater than 100 percent, do not assign a compensable evaluation based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 1. Entitlement to a rating of 100 percent for service-connected pleural plaque claimed as lung condition due to asbestos exposure, since April 17, 2017, is granted. In a March 2021 statement, the Veteran said that the tests are very hard for someone who has difficulty breathing, that the problem is getting worse, and he was extremely dizzy and sick for a couple of hours after the October 2020 examination because he breathed so much. The Board notes that the Veteran did undergo a May 2021 VA examination, as discussed below. In his August 2021 argument, it was noted that the Veteran continues treatment of corticosteroid medications and daily inhalational bronchodilator therapy. He has significant deficits with activities of daily living. Therefore, he maintains that his disability picture is worse than currently rated. The Veteran underwent a VA examination in June 2016 at which time he was diagnosed with pulmonary pleural plaques. A June 2016 PFT test reveals a pre-bronchodilator, of FVC at 121 percent predicted, FEV-1 128 percent predicted FEV-1/FVC 71 percent predicted, DLCO at 82 percent predicted, post-bronchodilator results of FVC at 121 percent predicted, FEV-1 130 percent and FEV-1/FVC 72 percent. The examiner indicated that the Veteran does not require the use of oral or parenteral corticosteroids, inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran was provided a VA respiratory conditions examination in October 2017 where he was diagnosed with pulmonary pleural plaques. The VA examiner noted that the Veteran did not require the use of oral or parenteral corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy for his respiratory condition. PFT results from July 2016 were noted, with the examiner concluding that the results did not accurately reflect the Veteran's current pulmonary function. The July 2016 PFT results showed FVC at 121 percent predicted and DLCO at 82 percent predicted. The examiner opined that based on the high percentages of the FVC and FEV1, he was suspicious that they may not be an accurate reflection of the Veteran's pulmonary function. The examiner added that the Veteran's DLCO was 82 percent and still may not be accurate. He opined that the Veteran likely meets the criteria of being between 66 and 80 percent on DLCO. The examiner noted that the Veteran is elderly and has difficulty traveling significant distances for the PFT. In a December 2017 VA respiratory conditions examination, the Veteran reported shortness of breath for short walks and going up stairs. He reported coughing a lot and not smoking for fifty years. He was given inhalers but was not able to use them. The VA examiner noted that the Veteran's respiratory condition did not require the use of oral or parenteral corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. The examiner noted a diagnosis for asbestosis/pleural plaques. The Veteran did not have a respiratory condition that resulted in cardiopulmonary complications. PFT testing from July 2016 was noted, with the examiner adding that the results did not reflect the Veteran's current pulmonary function. The examiner opined that the FEV-1/FVC results most accurately reflect the Veteran's level of disability. PFT testing showed a FVC of 69 percent predicted. In a January 2018 addendum opinion, the examiner noted that FEV-1/FVC was used instead of FVC or DLCO as it represented the Veteran's lung function. DLCO was not evaluated on most recent PFTs from December 2017 as it was not required. The examiner noted that the most recent December 2017 PFT reflective of the Veteran's lung function revealed a post-bronchodilator FVC was indicated as 38 percent predicted, FEV-1 as 54 percent predicted. The Veteran underwent a VA examination in June 2020. The examiner diagnosed the Veteran with chronic obstructive pulmonary disease (COPD) and pleural plaques. The examiner indicated that the Veteran's respiratory condition does not require the use of oral or parenteral corticosteroid medications, oral bronchodilators, or outpatient oxygen therapy, but does require the use of inhaled medication. COPD is predominately responsible for the need of inhaled medication. The examiner remarked that due to COVID-19 the PFT was unable to be performed, if required send an addendum opinion and a PFT order will be entered. The Veteran underwent a VA examination in October 2020. PFT results reflect post-bronchodilator shows that FVC is 81 percent predicted, FEV-1 is 78 percent predicted, and FEV-1/FVC is 96 percent predicted. Post-bronchodilator DLCO is not of record. Pre-bronchodilator shows that FVC is 78 percent predicted, FEV-1 is 69 percent predicted, FEV-1/FVC is 88 percent predicted and DLCO is 72 percent predicted. A response as to whether the Veteran has a diagnosis of pulmonary hypertension anytime during the period on appeal was not provided. The examiner noted that the Veteran reported that since the June 2020 examination, he is feeling more short-of-breath with physical activity and utilizing his inhaler more for relief of symptoms. In a letter received in April 2021, Dr. R.W. indicated that the Veteran is under his care and has a medical history that includes aortic stenosis valve replacement surgery, along with pulmonary hypertension. In an April 2021 letter, Dr. D.W. indicated that the Veteran suffers from shortness of breath, chronic cough, and exertional dyspnea. The Veteran underwent a VA examination in May 2021. The examiner diagnosed the Veteran with asbestosis. The examiner indicated that the Veteran's respiratory condition requires the use of chronic low dose (maintenance) corticosteroids and requires intermittent courses or bursts of systemic (oral or parenteral) corticosteroids four or more times in the past twelve months. The examiner found that the Veteran's respiratory condition requires daily inhalational bronchodilator therapy, and that the Veteran's respiratory condition requires the daily use of oral bronchodilators. The examiner found that the Veteran does not require outpatient oxygen. Exercise capacity testing was not performed. The examiner later noted that a June 2021 chest x-ray revealed bilateral pleural plaques and calcifications. PFT results reveal post-bronchodilator recordings of FVC at 181 percent predicted, FEV-1 at 190 percent predicted, and FEV-1/FVC is 97 percent. Post-bronchodilator DLCO SB is not of record as the examiner noted that such is not indicated in the Veteran's particular case. Pre-bronchodilator was noted as FVC of 158 percent predicted, FEV-1 is 157 percent predicted, FEV-1/FVC is 92 percent predicted and DLCO was not recorded. The examiner indicated that the FVC percent predicted most accurately reflects the Veteran's level of disability. A response as to whether the Veteran has a diagnosis of pulmonary hypertension anytime during the period on appeal was not provided. The technician performing the spirometry commented that the Veteran tends to hold his breath and does not exhale completely, many attempts were made, and best effort reported. Here, the Board notes that since April 17, 2017, the VA examinations of record are inadequate as no examination contains a DLCO (SB) recording and neither has an examiner stated why the test would not be useful or valid in a particular case. Neither has a VA examiner made a finding of pulmonary hypertension, as requested by prior Court and Board remands. However, even though the examinations of record are inadequate, the Board concludes that there is sufficient evidence to resolve reasonable doubt in the Veteran's favor and therefore a remand is not necessary to obtain another medical opinion as the available evidence is sufficient for that purpose. 38 C.F.R. § 3.159 (c)(4); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). In this regard, the Board finds the private treatment records indicating that the Veteran has pulmonary hypertension to be competent, credible, and probative evidence of the existence of the disease. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that the VA medical center treatment records reveal conditions of hypertension, essential hypertension, chronic ischemic heart disease and COPD. Private treatment records also note hypertension, benign hypertension and benign essential hypertension. A December 2018, as well as other 2018 private treatment records note an assessment of hypertensive heart disease without heart failure. However, while an October 2014 private treatment record notes there is no pulmonary hypertension, June and September 2018, May 2020, and March 2021 private treatment records note that an echocardiogram did suggest mild pulmonary artery hypertension. A November 2018 private treatment record notes the Veteran is status post TAVR with known pulmonary hypertension. Based on this medical evidence, the Board finds that the private treatment records factually demonstrate that the Veteran developed pulmonary hypertension after the October 2014 treatment. Further, in light of the January 2018 addendum opinion in which the examiner noted a post-bronchodilator FVC of 38 percent, the Board finds that the Veteran meets the schedular criteria for a 100 percent rating. After affording the Veteran the benefit of the doubt as to the date of when the pulmonary hypertension manifested, the Boards finds that the Veteran meets the schedular criteria for a 100 percent rating since April 17, 2017, within one year prior to the date of claim, but at no time prior, as this is the first date as of which pulmonary hypertension is demonstrated, and as PFTs prior to that date do not support a rating of 100 percent. Based on the foregoing, and in the interest of affording the Veteran the full benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran's pleural plaque claimed as lung condition due to asbestos exposure has been manifested by pulmonary hypertension throughout the period since April 17, 2017. The medical evidence established both that the Veteran's pleural plaque claimed as lung condition due to asbestos exposure is manifested by pulmonary hypertension, and a single FVC of 38 percent. As such, the Board finds the criteria for a 100 percent rating since April 17, 2017, is warranted. 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code 6833-6602. As a 100 percent rating is the maximum allowable schedular rating, no further discussion of alternative Diagnostic Codes or extraschedular ratings is warranted. 2. Entitlement to a TDIU rating. In his August 2021 argument, the Veteran asserts that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. He asserts that he has marked interference with his daily activities and employment. He maintains that his service-connected conditions have had limited impact on his ability to work. He also believes his service-connected conditions do render him unable to perform occupational activities required to obtain or retain employment consistent with education and experience. He presents significant deficits with activities of daily living. The October 2017 VA examiner opined that the Veteran's condition does not impact his ability to work. The December 2017 VA examiner opined that the Veteran's condition impacts his ability to work as the Veteran finds difficult to exert himself without shortness of breath and fatigue that is more severe. The examiner remarked that although the Veteran can perform general activities without significant restrictions, he has very limited ability to do any physical work. In the June 2020 VA examination, the examiner opined that the Veteran's condition impacts his ability to work and noted that the Veteran is a retired carpenter, and he reports having shortness of breath which limits his physical activity, such minimal activity as tying his shoes or talking the stairs in the house. The May 2021 examiner opined that the Veteran has severe dyspnea on exertion and is only capable of performing sedentary work. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In the May 2019 JMPR, the Parties found that the Board in failing to determine whether entitlement to TDIU was reasonably raised by the record in light of the December 2017 VA examiner noting that the Veteran's respiratory condition impacted his ability to work. A grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114(s)). That statute provides for additional compensation if the Veteran is in receipt of a 100 percent rating, to include TDIU, and has additional disability ratable at 60 percent or higher. Further, under 38 C.F.R. § 4.96, there are special provisions regarding evaluation of respiratory conditions. When evaluating any claim involving complete organic aphonia, VA is to refer to 38 C.F.R. § 3.350 to determine whether the veteran may be entitled to SMC. In this case, the July 2021 rating decision demonstrates that the Veteran is service connected for tinnitus at the maximum 10 percent rating, and service connected for hearing loss at a noncompensable rating. He is not in receipt of service connection for any other disabilities. Thus, the Veteran does not have another disability or disabilities independently rated at 60 percent. He is not in receipt of an award of SMC. Further, the record does not demonstrate, and he has not been evaluated for, a claim involving organic aphonia (speech), nor does he meet any other criteria pursuant to 38 C.F.R. § 3.350 and 38 U.S.C. § 1114. If the Veteran's other service-connected conditions could support TDIU independent of his lung disability, this could satisfy the criterion of a rating of 100 percent with separate disabilities rated at 60 percent or more. However, the Board finds that there is no allegation or evidence that the Veteran's service-connected disabilities, excluding pleural plaque claimed as lung condition due to asbestos exposure, either individually or cumulatively rendered the Veteran individually unemployable, sufficient to give rise to entitlement to SMC during this timeframe. There is no evidence suggesting a TDIU could be granted for a disability other than the lung disability for which a 100 percent schedular rating has been granted. The noncompensable hearing loss and tinnitus rated at 10 percent do not meet the schedular TDIU criteria. Moreover, there is no indication that either or both have rendered him unable to secure or follow a substantially gainful occupation. Therefore, the Board concludes that TDIU is not warranted, and that SMC is not warranted. LLOYD MASON CRAMP Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.