Citation Nr: 21013129 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-06 024 DATE: March 8, 2021 ORDER Prior to December 12, 2019, an initial rating in excess of 60 percent for asbestosis with chronic obstructive pulmonary disease (COPD) is denied. As of December 12, 2019, but no earlier, an initial rating of 100 percent for asbestosis with COPD is granted, subject to the laws and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. Prior to December 12, 2019, the Veteran’s asbestosis with COPD does not result in Forced Expiratory Volume (FEV-1) less than 40 percent predicted, or; FEV-1/ Forced Vital Capacity (FVC) less than 40 percent, 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 cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by echocardiogram or cardiac catheterization), or; episode(s) of acute respiratory failure, or requires outpatient oxygen therapy. 2. As of December 12, 2019, the Veteran’s asbestosis with COPD resulted in pulmonary hypertension as shown by echocardiogram. CONCLUSIONS OF LAW 1. Prior to December 12, 2019, the criteria for an initial rating in excess of 60 percent for asbestosis with COPD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.27, 4.96, 4.97, Diagnostic Code (DC) 6833-6604. 2. As of December 12, 2019, the criteria for an initial 100 percent rating for asbestosis with COPD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.27, 4.96, 4.97, DC 6833-6604. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1954 to May 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2014 by a Department of Veteran Affairs (VA) Regional Office (RO). In April 2019, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In August 2019 and January 2021, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to an initial rating in excess of 60 percent for asbestosis with COPD. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart, supra. Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s asbestosis with COPD has been rated as 60 percent disabling since January 22, 2013, the date of service connection. He contends that such disability is more severe than as reflected by the currently assigned rating and, thus an increased rating is warranted. The Veteran’s asbestosis with COPD is rated pursuant to DC 6833-6604. In this regard, hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. Thus, in the instant case, the hyphenated DC assigned reflects that the Veteran’s asbestosis, evaluated under DC 6833, is rated as COPD under DC 6604. Furthermore, regarding the evaluation of respiratory conditions, ratings under DCs 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under DCs 6819 and 6820 will not be combined with each other or with DCs 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the DC which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See 38 C.F.R. § 4.96. Further, under 38 C.F.R. § 4.96(d), there are special provisions for the application of evaluation criteria for DCs 6600, 6603, 6604, 6825-6833, and 6840-6845: (1) Pulmonary function tests (PFTs) are required to evaluate these conditions 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. (iv) When outpatient oxygen therapy is required. (2) 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. (3) When the PFTs are not consistent with clinical findings, evaluate based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. (4) Post-bronchodilator studies are required when PFTs 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. (5) When evaluating based on PFTs, 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. (6) When there is a disparity between the results of different PFTs (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. (7) 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. As indicated previously, while the Veteran is service-connected for asbestosis with COPD, such disability has been rated pursuant to DC 6604 pertinent to COPD as such has been shown to the predominant disability as demonstrated by VA examinations conducted during the course of the appeal. In this regard, under DC 6604, a 60 percent rating is assigned for COPD manifested by FEV-1 of 40 to 55 percent predicted, or; FEV-1/FC 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). A 100 percent rating is assigned for COPD manifested by FEV-1 less than 40 percent predicted, 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 echocardiogram or cardiac catheterization), or; episode(s) of acute respiratory failure, or requires outpatient oxygen therapy. Turning to the evidence of record, at a July 2013 VA examination, it was noted that the Veteran had COPD and emphysema, which did not require the use of oral or parenteral corticosteroid medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. However, such required the use of daily inhalational bronchodilator therapy. The Veteran did not require oxygen therapy, did not have any episodes of acute respiratory failure, and had not been diagnosed with cor pulmonale, right ventricular hypertrophy or pulmonary hypertension. X-rays showed COPD and bilateral pleural calcifications. PFTs revealed pre-bronchodilator results of FVC of 58.7 percent predicted, FEV-1 of 38.6 percent predicted, and FEV-1/FVC of 50 percent; with post-bronchodilator results of FVC of 67.6 percent predicted, FEV-1 of 38.3 percent predicted, and FEV-1/FVC of 43 percent. The examiner found that FEV-1/FVC most accurately reflected the Veteran’s level of disability. He also noted that DLCO testing had not been completed as such was not indicated in the Veteran’s particular case, and exercise capacity testing was not performed. VA and private treatment records reflect ongoing treatment for the Veteran’s respiratory disability with medications. Additionally, an echocardiogram conducted on December 12, 2019, revealed moderate pulmonary hypertension, with no significant change noted on echocardiogram in June 2020. At a February 2020 VA examination, it was noted that the Veteran had COPD and asbestosis with pleural plaques, and required systemic (oral or parenteral) corticosteroids, identified as inhalers and nebulizers as needed, and daily inhalational bronchodilator therapy and the use of inhaled medications, identified as Spiriva. Such did not require the use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. PFTs conducted in March 2020 revealed pre-bronchodilator results of FVC of 69 percent predicted, FEV-1 of 47 percent predicted, and FEV-1/FVC of 50 percent, and DLCO of 46 percent predicted; with post-bronchodilator results of FVC of 70 percent predicted, FEV-1 of 50 percent predicted, and FEV-1/FVC of 54 percent. The examiner indicated that DLCO most accurately reflected the Veteran’s level of disability, and exercise capacity testing was not performed. Based on the foregoing, the Board finds that, prior to December 12, 2019, the Veteran’s asbestosis with COPD does not result in manifestations that more nearly approximate a 100 percent rating. In this regard, at the July 2013 VA examination, the examiner found that FEV-1/FVC most accurately reflected the Veteran’s level of disability. 38 C.F.R. § 4.96(d)(6). Thus, in accordance with 38 C.F.R. § 4.96(d)(5), which requires the use of pre-bronchodilator results when the post-bronchodilator results are poorer (as in the instant case), the Veteran’s FEV-1/FVC of 50 percent does not meet the criteria for the next higher rating of 100 percent. Moreover, there is no evidence of maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or episode(s) of acute respiratory failure, and the Veteran does not require outpatient oxygen therapy. Consequently, an initial rating in excess of 60 percent is not warranted prior to December 12, 2019. However, as of such date, the Board finds that the Veteran is entitled to an initial 100 percent rating for his asbestosis with COPD as an echocardiogram conducted on such date revealed moderate pulmonary hypertension. The Board has considered whether additional staged ratings are appropriate for the Veteran’s service-connected respiratory disability; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran’s favor, which has resulted in the award of an initial 100 percent rating for his asbestosis with COPD as of December 12, 2019. However, insofar as the Board has denied an initial rating in excess of 60 percent prior to such date, the preponderance of the evidence is against such aspect of the Veteran’s claim. Therefore, the benefit of the doubt doctrine is not applicable and his initial rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.