Citation Nr: 21023249 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-23 278 DATE: April 20, 2021 ORDER Throughout the appeal period, an initial evaluation of 100 percent for asbestosis with pleural plaques to include atelectasis and pleural effusion is granted.   FINDING OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the Veteran had a diagnosis of asbestosis for the entire period on appeal. 2. During the period on appeal, the Veteran’s asbestosis with pleural plaques exhibited post-bronchodilator PFT results showed Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO) of less than 40-percent predicted, and the Veteran was prescribed outpatient oxygen therapy beginning in April 2016. CONCLUSION OF LAW The criteria for a 100 percent evaluation for asbestosis with pleural plaques have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.96, 4.97, DC 6833, 6845. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1957 to December 1960. The Veteran passed away in July 2018. The Appellant is his surviving spouse. The Appellant was recognized as the Veteran’s substitute on August 24, 2018. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2016 and February 2017, the Board remanded the case for additional development. The case returns to the Board at this time for further appellate review. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Increased Rating 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 v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Evaluation for Asbestos-Related Calcified Pleural Plaques In a November 2013 rating decision, the RO awarded the Veteran service connection for asbestos-related calcified pleural plaques with an initial noncompensable (0 percent) evaluation under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6845, effective January 2, 2013. The Veteran appealed that decision, giving rise to the instant appeal. In a June 22, 2020 rating decision, the RO awarded the Veteran an increased evaluation of 100 percent, effective October 21, 2016, and recharacterized the disability as asbestosis with pleural plaques to include atelectasis and pleural effusion. Rating Schedule For the period on appeal prior to October 21, 2016, the Veteran’s noncompensable evaluation for asbestos-related calcified pleural plaques was assigned pursuant to 38 C.F.R. § 4.97, DC 6845, which pertains to chronic pleural effusion or fibrosis. Such is rated under the General Rating Formula for Restrictive Lung Disease. This General Rating Formula provides for ratings from 10 to 100 percent based primarily on the results of pulmonary function tests (PFTs), specifically, Forced Expiratory Volume in one second (FEV-1), Forced Vital Capacity (FVC), and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)). A 10 percent rating will be assigned where there is FEV-1 of 71- to 80-percent predicted, or FEV-1/FVC of 71 to 80 percent, or DLCO (SB) of 66- to 80-percent predicted. A 30 percent rating will be assigned where there is FEV-1 of 56- to 70-percent predicted, or FEV-1/FVC of 56 to 70 percent, or DLCO (SB) of 56- to 65-percent predicted. A 60 percent rating will be assigned where there is FEV-1 of 40- to 55-percent predicted, or FEV-1/FVC of 40 to 55 percent, or DLCO (SB) of 40- to 55-percent predicted; or where there is maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating will be assigned where there is FEV-1 less than 40 percent of predicted value, or the FEV-1/FVC is less than 40 percent, or DLCO (SB) is less than 40-percent predicted; or where there is maximum exercise capacity of 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 required outpatient oxygen therapy. Note (1) provides that a 100-percent rating shall be assigned for pleurisy with empyema, with or without pleurocutaneous fistula, until resolved. Note (2) provides that, following episodes of total spontaneous pneumothorax, a rating of 100 percent shall be assigned as of the date of hospital admission and shall continue for three months from the first day of the month after hospital discharge. Note (3) provides that gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion shall be rated at least 20-percent disabling. Disabling injuries of shoulder girdle muscles (Groups I to IV) shall be separately rated and combined with ratings for respiratory involvement. Involvement of Muscle Group XXI (Diagnostic Code 5321), however, will not be separately rated. 38 C.F.R. § 4.97. For the period on appeal beginning October 21, 2016, the Veteran’s 100 percent evaluation for asbestosis with pleural plaques to include atelectasis and pleural effusion was assigned pursuant to 38 C.F.R. § 4.97, DC 6833, which pertains to asbestosis. Such is rated under the General Rating Formula for Interstitial Lung Disease. This General Rating Formula also provides for ratings from 10 to 100 percent based primarily on the results PFTs of FVC and DLCO (SB). A 10 percent rating will be assigned where there is FVC of 75- to 80-percent predicted or DLCO (SB) of 66- to 80-percent predicted. A 30 percent rating will be assigned where there is FVC of 65- TO 74-percent predicted or DLCO (SB) of 56- to 65-percent predicted. A 60 percent rating will be assigned where there is FVC of 50- TO 64-percent predicted or DLCO (SB) of 40- to 55-percent predicted; or whether there is maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 100 percent rating will be assigned where there is FEV-1 less than 50 percent of predicted value, or the DLCO (SB) is less than 40-percent predicted; or where there is maximum exercise capacity of less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation; or cor pulmonale or pulmonary hypertension; or required outpatient oxygen therapy. Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes, except when the results of pre-bronchodilator PFTs are normal, or when the examiner determines that post-bronchodilator studies should not be done and states why. When evaluating based on PFTs, post-bronchodilator results are to be used in applying the criteria in the rating schedule, unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which cases the pre-bronchodilator values should be used. When there is a disparity between the results of different PFTs (FEV-1, FVC, etc.), so that the evaluation would differ depending on which test result is use, the test result that the examiner states most accurately reflects the level of disability should be used. If the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation should not be assigned based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96(d). Discussion The Board acknowledges that there has been some confusion concerning when the Veteran had a diagnosis of asbestosis. The November 2013 and August 2016 VA examinations and a July 2014 chest CT scan found that the Veteran did not have asbestosis. However, private treatment records from December 2012, February 2013, November 2013, April 2016, and October 2016 reflect that he had a diagnosis of asbestosis, as did the December 2019 and June 2020 VA medical opinions. The June 2020 VA examiner found that, given this disparity, it puts the evidence in equipoise. The June 2020 VA examiner also found that it may be conceded that this Veteran’s private physicians would be more familiar with his history and his case; thus, their diagnosis is more sensitive and specific. The examiner’s opinion is probative as it provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran had a diagnosis of asbestosis during the entire period on appeal. Thus, the disability should be rated under 38 C.F.R. § 4.97, DC 6833 for asbestosis, rather than DC 6845 for chronic pleural effusion or fibrosis, during the entire period on appeal. The Veteran was not service connected for COPD. However, the Court has held that when a veteran has both service-connected and nonservice-connected disabilities, VA must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Court also held that when it is not possible to separate the effects of a service-connected condition from a nonservice-connected condition, 38 C.F.R. §§ 3.102 and 4.3 require VA adjudicators to resolve this doubt in the Veteran’s favor and for all intents and purposes attribute any signs and symptoms in question to the service-connected disability. In this case, the June 2020 VA examiner did not differentiate between the Veteran’s respiratory conditions, to include COPD, asbestosis, and calcified pleural plaques. The June 2020 VA examiner’s opinion concerning status of the Veteran’s respiratory diagnoses was not limited in time or scope, and the June 2020 VA examiner found that all of the Veteran’s respiratory conditions could be traced back to his in-service asbestos exposure. Therefore, for purposes of resolving this appeal, the Board finds that all of the Veteran’s respiratory symptomatology, to include his COPD symptomatology and PFT results, from the period on appeal must be attributed to his service-connected asbestosis with pleural plaques. As noted earlier, the Veteran currently is assigned a 100 percent rating for his asbestosis with pleural plaques (to include atelectasis and pleural effusion), effective October 21, 2016. This is the highest evaluation allowed under DC 6833. 38 C.F.R. § 4.97. Thus, the question of increased ratings for such disability now primarily concerns the period prior to October 21, 2016. Throughout the appeal period, the Veteran’s respiratory disability more closely paralleled the types of symptoms described in the criteria for a 100 percent rating under DC 6833. At the November 2013 VA examination, the Veteran’s post-bronchodilator PFT results included FVC of 119 percent predicted and DLCO of 34 percent predicted, and the examiner stated that the Veteran’s FVC results most accurately reflected the Veteran’s level of disability. At the October 9, 2014 VA examination, the Veteran’s post-bronchodilator PFT results included FVC that was 116 percent predicted and DLCO of 35 percent predicted, and the examiner stated that the Veteran’s DLCO most accurately reflected the Veteran’s level of disability. A VA examiner in June 2020 opined that the DLCO PFT at least as likely as not (50% or greater probability) most accurately reflected the Veteran's level of disability prior to his death. As these findings show DLCO (SB)) less than 40-percent predicted, a 100 percent disability level is more nearly approximated. The Board also notes that the record reflects that Veteran was prescribed outpatient oxygen therapy beginning in April 2016. As noted earlier, 100 percent is the highest evaluation allowed under DC 6833. 38 C.F.R. § 4.97, DC 6833. In reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Appellant’s favor, which has resulted in a 100 percent rating for the Veteran’s asbestosis with pleural plaques to include atelectasis and pleural effusion during the period on appeal. This is maximum benefit awardable, so it considered a complete grant of the benefit sough on appeal. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dawn A. Leung, 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.