Citation Nr: 21015231 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-15 367 DATE: March 17, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to December 14, 2017, and 30 percent thereafter, for status post asbestos exposure with pleural and pulmonary asbestosis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to December 14, 2017, at worst, the Veteran’s Forced Vital Capacity (FVC) was 77 percent of the predicted value and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) was, at worst, 81 percent of the predicted value. 2. After December 14, 2017, the Veteran’s FVC was, at worst, 73.4 percent of the predicted value and the DLCO (SB) was, at worst, 68.4 percent of the predicted value. 3. The evidence is against finding that the Veteran’s service-connected disabilities render him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected status post asbestos exposure with pleural and pulmonary asbestosis have not been met until December 14, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.96, 4.97, Diagnostic Code 6833. 2. The criteria for a rating in excess of 30 percent for service-connected status post asbestos exposure with pleural and pulmonary asbestosis have not been met at any time during the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.96, 4.97, Diagnostic Code 6833. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1960 to April 1964. The matter was previously denied by the Board in April 2019. The Veteran appealed the Court of Appeals for Veterans Claims (CAVC). In March 2020 the CAVC approved a Joint Motion for Remand (JMR). The Board remanded the claim in September 2020 for further development. These matters were last adjudicated by the Regional Office (RO) in an October 2020 Statement of the Case. In a February 2021 brief, the Veteran’s representative waived initial RO consideration of all evidence received since the October 2020 Statement of the Case. To the extent that the record contains evidence after receipt of this waiver, the records are not relevant as they do not document findings sufficient to evaluate the Veteran’s disability under the relevant rating criteria. The Board may proceed with its appellate review. As to the matters adjudicated below, neither the Veteran nor his representative has raised any issues with VA’s duty to notify or VA’s duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. 1. Entitlement to an initial rating in excess of 10 percent prior to December 14, 2017, and 30 percent thereafter, for status post asbestos exposure with pleural and pulmonary asbestosis is denied. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. However, in the case of the Veteran’s asbestosis, “where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern.” Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration of the medical evidence since the date of the claim for increase and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119 (1999). Further, “[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation 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. The Veteran’s asbestosis is rated under Diagnostic Code 6833, which explicitly compensates for asbestosis and which applies the General Rating Formula for Interstitial Lung Disease. Under the applicable diagnostic criteria, a 10 percent rating is assigned for FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66- to 80-percent predicted. 38 C.F.R. § 4.97, Diagnostic Code (DC) 6833. A 30 percent rating is granted for FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted. Id. 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/min oxygen consumption with cardiorespiratory limitation. Id. A 100 percent rating is granted for (FVC) less than 50-percent predicted, or; (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. Pulmonary function tests (PFT’s) are required to evaluate these conditions except: (1) 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. 38 C.F.R. § 4.96(d)(1). 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. 38 C.F.R. § 4.96(d)(4). 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. 38 C.F.R. § 4.96(d)(5). The June 2010 VA examination report indicates the Veteran’s FVC was 80.5 percent of the predicted value, FEV1 was 86.8 percent predicted value, FEV1/FVC was 83 percent the predicted value, and DLCO-SB was 93.4 percent. After the bronchodilator the Veteran’s FVC was 80.3 percent of the predicted value, FEV1 was 89.1 percent of the predicted value, and FEV1/FVC was 86 percent of the predicted value. The examination reported indicated the Veteran’s activities of daily living was not affected. It was noted that he was unable to do strenuous exercise. At a March 2013 VA examination, it was noted that the Veteran’s condition was largely unchanged from the previous examination. Pulmonary function testing was performed, the Veteran’s FVC was recorded at 76.4 percent predicted pre-bronchodilator and 78.6 percent predicted post-bronchodilator. No data was recorded for DLCO. The examiner indicated the Veteran’s respiratory condition did not impact his ability to work. The March 2015 VA examination report noted the Veteran’s pulmonary condition status had not changed recently. The Veteran reported significant shortness of breath on walking about one block; however, it was noted the Veteran has significant cardiac issues. Imaging revealed extensive pleural plaque bilaterally, linear scarring in right base, and extensive pleural calcification and pleural plaques. The Veteran’s FVC was 77 percent predicted pre-bronchodilator, FVC was 76 percent predicted post-bronchodilator, and DLCO was 81 percent predicted. The December 2017 VA examination report indicates that the Veteran’s FVC was 71.4 percent predicted pre-bronchodilatory, 73.4 percent predicted post-bronchodilator and his DLCO (SB) was 68.4 percent of the predicted value. The examiner noted that cardiopulmonary exercise capacity testing was not performed because the veteran has both aortic valve stenosis and coronary artery disease, both of which are considered relative contraindications for testing. Additionally, the Veteran has a hip condition and cannot tolerate prolonged exercise. The October 2020 VA examination used PFT results from October 15, 2020, the examination itself was not in-person. The October 15, 2020 PFT results indicate the Veteran’s FVC was 75.3 percent predicted pre-bronchodilator, 73.5 percent post-bronchodilator, and DLCO was 81.6 percent predicted. The examination report noted the Veteran’s belief that his asbestosis had worsened; however, this contention is not supported by the contemporaneous objective findings. It was noted that the Veteran had recently had a CT scan which showed a thickened lining of the lungs. A biopsy of this area indicated the thickening was due to the Veteran’s concomitant heart disease and medications. The examiner noted daily use of bronchodilator and anti-inflammatory inhalers. Evidence of malignancy including mesothelioma or that the pleural disease impacted the Veteran’s physical or sedentary activities was not found at any of the VA examinations. The October 2020 examiner also found no evidence of additional complications or disability resulting from the Veteran’s service-connected post-asbestos exposure with pleural and pulmonary asbestosis. Contemporaneous records are consistent with, or no worse, than the findings documented at the VA examinations. Diagnostic code (DC) 6833 provides for a rating of 30 percent when FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted is measured. Prior to December 14, 2017 the Veteran’s FVC was, at worst, 76.4 percent and DLCO at 81 percent. The criteria for a rating of 30 percent or higher has not been satisfied during this time period. At the December 2017 VA examination, the Veteran’s FVC was 73.4 percent of the predicted value and thus warrants a rating of 30 percent. A higher rating of 60 percent is not warranted unless 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 is shown. A 100 percent rating is only granted 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. At no point during the appellate period has the evidence supported a 60 or 100 percent rating under DC 6833. The Veteran, through his representative, contends that since cardiopulmonary exercise capacity testing was not performed, it is an indication that the Veteran’s condition is severe enough to warrant a 100 percent disability rating under diagnostic code 6600. See March 2019 brief. Under DC 6600, a 100 percent rating is warranted if the FEV-1 is less than 40 percent of predicted value; or the FEV-1/FVC is less than 40 percent; or the DLCO (SB) is less than 40 percent of predicted value; 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 Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. The Board notes that the Veteran is not service connected for bronchitis under DC 6600 and there is no indication that the Veteran has a diagnosis of bronchitis. The Board may assign an analogous rating when the service-connected condition is “unlisted.” Suttman v. Brown, 5 Vet. App. 127, 134 (1993). As asbestosis is a listed condition an analogous rating under DC 6600 is not proper. Even if, for the sake of argument, the Veteran’s condition was rated under DC 6600, a 100 percent rating would not be appropriate due to cardiopulmonary exercise capacity testing not being performed. The November 2017 VA examiner did not perform cardiopulmonary exercise capacity testing because the Veteran is unable to sustain prolonged exercise due to a hip injury and because the Veteran has aortic valve stenosis and coronary artery disease, not because of the severity of the Veteran’s service connected status post asbestos exposure with pleural and pulmonary asbestosis. A higher rating under DC 6600 is not warranted. This reasoning also explains why a higher rating under DC 6833 based on maximum exercise capacity testing is not warranted. In adjudicating this matter, the Board has considered the various lay statements of the Veteran describing his subjective worsened breathing or shortness of breath on exertion. While these reports are both credible and competent, the Board affords greater weight to the objective pulmonary function tests of record, as ratings under Diagnostic Code 6833 are based on specific numerical pulmonary functioning test results. In sum, the evidence preponderates against the Veteran’s request for a rating in excess of 10 percent prior to December 14, 2017, and in excess of 30 percent thereafter, for the Veteran’s service-connected asbestosis. To this end, the Veteran’s appeal is denied. 2. Entitlement to a TDIU is denied. The Veteran contends that he is unable to work primarily due to his lung condition. He argues that he experiences shortness of breath, and fatigues easily when performing physical activities. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. § 4.16. “TDIU is to be awarded based on the ‘judgment of the rating agency.’” Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). A total disability rating typically requires either a single disability rated at 60 percent or more, or multiple disabilities rated together at 70 percent or more with at least one of the disabilities rated at 40 percent or more. 38 C.F.R. § 4.16(a). In the instant case, the Veteran is service connected for status post asbestos exposure with pleural disease and pulmonary asbestosis at 10 percent prior to December 14, 2017, and 30 percent thereafter; tinnitus at 10 percent, and 0 percent for bilateral hearing loss. The Veteran’s combined rating is 20 percent prior to December 14, 2017, and 40 percent thereafter, utilizing the combined ratings table in 38 C.F.R. § 4.25. He does not meet schedular criteria during the appellate period. In exceptional circumstances, where the Veteran does not meet the schedular TDIU criteria, a total rating may be assigned on an extraschedular basis upon a showing that he is unable to obtain or retain substantially gainful employment due solely to service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is unable to award an extraschedular TDIU in the first instance, and instead must first determine whether referral to the Director of Compensation Service is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The determination of a referral is dependent on “whether the veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Following a complete review of the record, the Board finds no plausible basis for referring the matter to the Director for a determination regarding extraschedular TDIU. The record reflects that the Veteran served as an ordnanceman during his active duty service. Following service, the Veteran was employed as a painter. See May 2010 VA examination. The evidence of record does not present exceptional circumstances necessary for referral to the Director of Compensation Service. First, VA examination opinions do not reflect that the Veteran’s service-connected disabilities render him unable to secure and following substantially gainful employment. The contrary is shown. See March 2013 VA examination; March 2015 VA examination; October 2020 VA examination (all finding no occupational impact due to asbestosis). While the December 2017 VA examiner noted that the Veteran worked 2 hours per day, there was no indication if this was solely the result of his service-connected disabilities, as they Veteran has many nonservice-connected ailments. VA audiological examiners have not found that the Veteran’s hearing impairment or tinnitus preclude the Veteran from securing or performing all forms of substantially gainful employment consistent with his education and occupational history. Review of the medical evidence does not reveal any permanent physical restrictions issued to the Veteran during the appellate period due solely to his service-connected disabilities. Finally, treatment medical records throughout the appeal reference the Veteran’s shortness of breath, but do not indicate it is of such severity as to render him unable to secure and follow substantially gainful employment. Of note, shortness of breath and fatigue is referenced throughout the medical record in connection with the Veteran’s heart conditions, for which he is not service connected. For these reasons, the Board finds the Veteran’s service-connected disabilities, alone, do not render him unable to secure and maintain substantially gainful employment during the appellate period. As such, entitlement to TDIU must be denied, and referral to the Director of Compensation Service is not warranted. M. Galante Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rekowski 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.