Citation Nr: 21006157 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-25 394 DATE: February 3, 2021 ORDER Entitlement to the maximum rating of 100 percent for asbestosis from January 3, 2011 to March 15, 2016, and from March 20, 2018 to April 10, 2019 is granted. FINDING OF FACT The Veteran’s service-connected asbestosis has been manifested by pulmonary hypertension no earlier than January 3, 2011; there are no other pertinent findings in the one year prior to his increased rating claim, which was filed on June 20, 2011. CONCLUSION OF LAW The criteria for a 100 percent rating from January 3, 2011, to March 15, 2016, and from March 20, 2018, to April 10, 2019 for asbestosis are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.96, 4.97, DC 6833. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1948 to May 1968. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter for further development in January 2016, September 2016 and September 2017. The Veteran’s service-connected asbestosis is currently rated at the 60 percent level from December 10, 2008; the 100 percent level from March 16, 2016; the 60 percent level from March 20, 2018; and the 100 percent level from April 11, 2019. As the Veteran’s claim is for a non-initial rating, meaning that the claim was filed more than one year after the issuance of the rating decision which granted service connection, VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a claim for increase, when it is factually ascertainable that an increase in disability had occurred within that period. 38 C.F.R. § 3.400(o)(2). The Veteran’s claim for an increased evaluation was received on June 20, 2011; thus, the period on appeal is from June 20, 2010, to the present, which includes the one-year lookback period. As the Veteran’s asbestosis is already rated at the maximum level for two periods during that timeframe, the Board will address whether the record supports an increased evaluation for the periods in which the Veteran is assigned less than a 100 percent rating. In this case, those periods are June 20, 2010, to March 15, 2016 (currently rated at 60 percent), and March 20, 2018 to April 10, 2019 (currently rated at 60 percent). The Veteran asserts that his service-connected asbestosis warrants the maximum 100 percent evaluation for the entire rating period. See August 2017 Appellate Brief; August 2016 Appellate Brief; January 2016 VA Form 21-4138, Statement in Support of Claim; August 2015 VA Form 9; July 2015 VA Form 9; November 2012 VA Form 21-4138, Statement in Support of Claim; October 2012 Veteran Correspondence. The Veteran’s asbestosis is evaluated under the provisions of 38 C.F.R. § 4.97, DC 6833, which specifically contemplates asbestosis. As such, no other DC may be used to rate the Veteran’s disability. See Copeland v. McDonald, 27 Vet. App. 333, 337 (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). Under DC 6833, a 100 percent rating is assigned for Forced Vital Capacity (FVC) less than 50 percent predicted, 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 in oxygen consumption with cardiorespiratory limitation, or; cor pulmonale or pulmonary hypertension, or; where the condition requires outpatient oxygen therapy. 38 C.F.R. § 4.97, DC 6833. A 60 percent rating is assigned 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 in oxygen consumption with cardiorespiratory limitation. 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, the 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). Here, evidence of record shows that the Veteran manifested pulmonary hypertension during the lookback period. Pulmonary hypertension is one condition that warrants a 100 percent rating under DC 6833. See 38 C.F.R. § 4.97, DC 6833. In this regard, the November 2020 VA examiner noted that the Veteran’s medical records revealed an onset of pulmonary hypertension around 2011, and the examiner suspected it continued to the present. Private treatment records indicate a history of pulmonary hypertension as recently as September 2020. A December 2012 letter written by the Veteran’s private physician noted that an echocardiogram revealed the Veteran had pulmonary hypertension. An October 2011 private treatment record indicates a diagnosis of pulmonary hypertension revealed by an echocardiogram. A July 2011 echocardiogram report includes an impression of pulmonary hypertension. The earliest record of pulmonary hypertension in the Veteran’s file is a January 3, 2011, private treatment record. Thus, evidence of record establishes that the Veteran had pulmonary hypertension since January 3, 2011, to the present. While the November 2020 VA examiner opined that the Veteran’s pulmonary hypertension was more likely than not related to non-service-connected disabilities than his service-connected asbestosis (citing agreement with a March 2018 pulmonary consult note that opined that the Veteran’s pulmonary hypertension was caused by non-service-connected COPD, sleep apnea, and heart failure), the January 2019 VA examiner opined that the Veteran’s pulmonary hypertension was more likely than not related to his service-connected asbestosis. Specifically, the January 2019 examiner noted that the Veteran exhibited low oxygen levels in a June 2007 sleep study that necessitated the use of nighttime oxygen therapy. The examiner further opined that it was “medically reasonable” that the Veteran’s nighttime low oxygen levels were caused by asbestosis as opposed to COPD and sleep apnea. He opined that asbestosis was “the most significant and sufficient factor creating night-time oxygen desaturation.” The examiner then noted that the Veteran’s July 2011 echocardiogram revealed a left ventricular ejection fraction of 62.5% and elevated pulmonary artery pressure of 46 mm/Hg, which demonstrated the presence of pulmonary hypertension. The cause of these results, he opined, was “likely low oxygen levels that create constriction of the pulmonary blood vessels” and the cause of the low oxygen levels “in reasonable probability” was the Veteran’s service-connected asbestosis. The Board finds the January 2019 opinion regarding the etiology of the Veteran’s pulmonary hypertension to be more probative than the November 2020 opinion. The January 2019 examiner is a physician specializing in internal medicine and pulmonary disease, whereas the records of the November 2020 examiner do not indicate a relevant specialty. The January 2019 examiner provided a more detailed and thorough rationale connecting the Veteran’s pulmonary hypertension to oxygen desaturation that constricts pulmonary blood vessels which produces breathlessness on exertion. Even considering the Veteran’s other conditions, the January 2019 examiner opined that asbestosis was the single most significant cause of oxygen desaturation which, in turn, caused pulmonary hypertension. In contrast, the November 2020 examiner did not provide a supportive rationale. Thus, the Board finds that the medical evidence of record demonstrates that the Veteran’s pulmonary hypertension, which has manifested since January 3, 2011, is etiologically related to his service-connected asbestosis. As pulmonary hypertension is one condition that warrants a 100 percent rating under DC 6833 for asbestosis, and medical evidence in the form of a January 2019 etiology opinion demonstrates the Veteran’s pulmonary hypertension is related to asbestosis, a 100 percent rating is warranted within the one-year lookback from January 3, 2011, the earliest mention of pulmonary hypertension in the Veteran’s records, to March 15, 2016 (currently rated at 60 percent), and March 20, 2018 to April 10, 2019 (currently rated at 60 percent). The records do not reflect a manifestation of pulmonary hypertension in the remainder of the lookback period from June 20, 2010, to January 2, 2011, and there is also no evidence of cor pulmonale, outpatient oxygen therapy or any PFT findings for this period to support an increased rating. Thus, a rating in excess of 60 percent from June 20, 2010, to January 2, 2011, is not warranted. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.