Citation Nr: 21008510 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-11 579 DATE: February 17, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for calcified pleural plaques, residuals of asbestos exposure, is denied. FINDING OF FACT The Veteran’s calcified pleural plaques, residuals of asbestos exposure has been manifested by a post-bronchodilator FVC (forced vital capacity) no lower than 76 percent of predicted value, and by a DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) no lower than 80 percent of predicted value. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for calcified pleural plaques, residuals of asbestos exposure have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 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 from August 1964 to July 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision. A March 2015 rating decision assigned a 10 percent disability rating for the Veteran’s service-connected calcified pleural plaques, residuals of asbestos exposure, effective June 27, 2012. In August 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. The Veteran’s claim for an increased rating was remanded by the Board in June 2019 and August 2020 for further development. Entitlement to a disability rating in excess of 10 percent for calcified pleural plaques, residuals of asbestos exposure, is denied. The Veteran maintains that the severity of his service-connected calcified pleural plaques, residuals of asbestos exposure requires a higher disability rating. For the reasons discussed below, a higher disability rating is not warranted. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not “duplicative or overlapping with the symptomatology” of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran’s calcified pleural plaques, residuals of asbestos exposure has been rated as 10 percent disabling under Diagnostic Code 6833 for asbestosis. 38 C.F.R. § 4.97. Under Diagnostic Code 6833, asbestosis is to be rated under the General Rating Formula for Interstitial Lung Disease (General Rating Formula). Id. The General Rating Formula provides as follows: A 100 percent evaluation is assigned for Forced Vital Capacity (FVC) less than 50 percent of predicted value, 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/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale (right heart failure) or pulmonary hypertension, or; requires outpatient oxygen therapy. A 60 percent evaluation 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/min oxygen consumption with cardiorespiratory limitation. A 30 percent evaluation is assigned for FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65- percent predicted. A 10 percent evaluation is assigned for FVC of 75- to 80-percent predicted value, or; DLCO (SB) of 66- to 80-percent predicted. Id. A maximum exercise capacity test need not be conducted in any case. See 38 C.F.R. § 4.96(d)(1) (providing that with regard to certain diagnostic codes pertaining to respiratory conditions, including Diagnostic Code 6833, if a maximum exercise stress test is not of record, the disability is to be evaluated based on alternative criteria). Post-bronchodilator studies are required when Pulmonary Function Tests 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. 38 C.F.R. § 4.96(d)(4). When evaluating based on Pulmonary Function Tests, 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. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different Pulmonary Function Tests (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), 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. 38 C.F.R. § 4.96(d)(6). To evaluate the Veteran’s respiratory disability, he was afforded an August 2013 VA Respiratory Conditions (Other than Tuberculosis and Sleep Apnea) Disability Benefits Questionnaire. The examination report states that he has diagnoses of chronic obstructive pulmonary disease and pleural plaques. The examination report states that the Veteran does not require outpatient oxygen therapy. There is no indication that the Veteran has cor pulmonale or pulmonary hypertension or requires outpatient oxygen therapy. In terms of pulmonary function testing (conducted in 2011), the Veteran had an FVC of 75 percent predicted pre-bronchodilator, 76 percent predicted post-bronchodilator, and a DLCO of 89 percent predicted post-bronchodilator. The August 2013 examination report states that the Veteran’s chronic obstructive pulmonary disease is predominately responsible for the limitation in pulmonary function. The Veteran’s respiratory status regarding his pleural plaques is stable and unchanged and any current respiratory symptomatology is due to his chronic obstructive pulmonary disease secondary to tobacco abuse and morbid obesity causing obstructive sleep apnea. A September 2013 VA pulmonary function test states that the Veteran had an FVC of 77 percent pre-bronchodilator, 88 percent post-bronchodilator, and a DLCO of 80 percent predicted. The Veteran was afforded an October 2019 VA Respiratory Conditions (Other than Tuberculosis and Sleep Apnea) Disability Benefits Questionnaire. The examination report provides that the Veteran has a diagnosis of asbestosis. The Veteran has wheezing if he does not use his pulmonary medication and he currently takes albuterol and Spiriva daily and guaifenesin daily for chronic cough. The examination report states that the Veteran does not require outpatient oxygen therapy. In terms of pulmonary function testing, the Veteran had an FVC of 76 percent predicted pre-bronchodilator, 79 percent predicted post-bronchodilator, and a DLCO of 85 percent predicted pre-bronchodilator. Regarding functional impact, the Veteran has difficulty during cold and wet weather. The Veteran’s VA treatment records do not demonstrate that he underwent additional pulmonary function testing. VA treatment records provide that pulmonary function tests do not show significant airway disease. The above evidence shows that the Veteran’s calcified pleural plaques, residuals of asbestos exposure has not been manifested by an FVC of 74 percent or lower, or a DLCO (SB) of 65 percent or lower. Thus, the criteria for a rating of 30 percent or higher under the General Rating Formula based on FVC or DLCO (SB) results are not satisfied. See 38 C.F.R. § 4.97, Diagnostic Code 6833. The remaining criteria for a rating of 30 percent or higher under the General Rating Formula are not satisfied. A maximum exercise capacity test is not of record. As noted above, one is not required to evaluate the Veteran’s respiratory disability. See 38 C.F.R. § 4.96(d)(1)(i). The evidence does not show that the Veteran has cor pulmonale or pulmonary hypertension, or that he requires outpatient oxygen therapy due to his asbestosis. Accordingly, the criteria for a 30 percent rating or higher under the General Rating Formula are not satisfied. See id. The evidence contained in the Veteran’s claims folder demonstrates that he coughs, and he has fatigue, wheezing, and shortness of breath. He also has dyspnea on exertion, particularly when walking quickly on for longer distances. However, the Veteran also has chronic obstructive pulmonary disease, which has not been service connected. The August 2013 VA examiner found that the Veteran’s chronic obstructive pulmonary disease was predominately responsible for the limitation in pulmonary function secondary to tobacco abuse and morbid obesity causing obstructive sleep apnea. Regardless, the Board has given the Veteran the benefit of the doubt and attributes all PFT results to his service-connected asbestosis. See Mittleider v. West, 11 Vet. App. 181 (1998); To the extent that the Veteran may have the above symptoms and associated limitations due to his calcified pleural plaques, residuals of asbestos exposure as opposed to nonservice-connected chronic obstructive pulmonary disease, this is contemplated and compensated by the schedular criteria for rating asbestosis. These criteria are largely based on the results of pulmonary function tests, whose purpose is to measure such effects. Cf. Doucette v. Shulkin, 28 Vet. App. 366, 369, 371 (2017) (holding that criteria for hearing loss, which are based solely on numerical results of audiological testing, contemplate the functional effects of hearing loss in “various contexts,” as these are “precisely the effects that VA’s audiometric tests are designed to measure”). There is no indication that the Veteran’s calcified pleural plaques, residuals of asbestos exposure is more severe than what is captured by the rating criteria, or that it otherwise constitutes such an exceptional or unusual disability picture as to render application of the schedular criteria impractical. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008); aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Accordingly, the Board finds that referral of this case for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun, 22 Vet. App. at 114. In sum, the Veteran’s calcified pleural plaques, residuals of asbestos exposure has not met or more nearly approximated the criteria for a disability rating in excess of 10 percent at any point during the pendency of this claim. Because the preponderance of the evidence weighs against a higher rating, the benefit-of-the-doubt rule does not apply and a disability rating in excess of 10 percent for calcified pleural plaques, residuals of asbestos exposure is denied. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App.at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.