Citation Nr: 21024649 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 11-21 425 DATE: April 23, 2021 ORDER An increased rating in excess of 30 percent, from February 27, 2015 to February 24, 2021 for asbestosis, is denied. An increased rating of 100 percent for asbestosis, from February 25, 2021, is granted. FINDINGS OF FACT 1. The Veteran’s February 25, 2015 results showed FVC was 69 percent predicted; FEV-1 was 60 percent predicted; FEV-1/FVC 57 percent; and DLCO was 96 percent predicted, and post-bronchodilator results were FVC with 72 percent predicted; FEV-1 with 64 percent predicted, and FEV-1/FVC with 59 percent. 2. With regard to the February 2015 pulmonary function testing (PFT) results, the FVC was the most accurate test for the Veteran’s asbestosis and post-bronchodilator results were not medically necessary or required by regulation. 3. The Veteran’s January 2021 VA examination PFT results, dated February 25, 2021, showed a DLCO of 22.4 percent predicted. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 30 percent, from February 27, 2015 to February 24, 2021, for asbestosis are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.31, 4.96, 4.97, Code 6604, 6833. 2. The criteria for an increased rating to 100 percent for asbestosis from February 25, 2021 are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.31, 4.96, 4.97, Code 6604, 6833. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1963 to September 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2010 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In February 2015, the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In June 2020, the Court of Appeals for Veterans Claims (Court) vacated and remanded the Board’s May 2019 decision, that denied entitlement to a rating in excess of 30 percent disabling for the Veteran’s service-connected asbestosis. In November 2020, the Board remanded this matter consistent with the June 2020 Joint Motion for Remand (JMR) to obtain the full PFT results and schedule the Veteran for a new VA examination. See BVA Decision received 11/17/2020. Since the Board finds that there has been substantial compliance, as explained below, with its remand directives, this matter is ready for adjudication.   An increased rating in excess of 30 percent from February 27, 2015 to February 24, 2021 for asbestosis is denied. An increased rating of 100 percent for asbestosis from February 25, 2021, is granted. The Veteran has contended that his asbestosis has worsen and that an increased rating is warranted. See Hearing Testimony received 2/06/2015 at page 2. By way of history, the Veteran appealed a September 2010 rating decision that denied a compensable rating for asbestosis. In an August 2017 Board decision, the Veteran was granted a rating of 30 percent prior to February 27, 2015 and this matter, a rating in excess of 30 percent after February 27, 2015, was remanded. In May 2019, the Board denied a rating in excess of 30 percent after February 27, 2015. See BVA Decision received 5/03/2019. That decision was vacated in a June 2020 Court JMR. See Remand BVA or CAVC received 6/22/2020. In November 2020, this matter was remanded consistent with the JMR for full PFT Results to include a post-bronchodilator DLCO and a new VA examination. See BVA Decision received 11/17/2020 at pages 2-3. As the prescribed development has occurred, the Board is ready to decide the claim. The Veteran's asbestosis was originally evaluated under the rating criteria for asbestosis. More recently, the rating criteria for chronic obstructive pulmonary disease (COPD) have also been utilized since VA examiners have been unable to distinguish between the symptoms of his service-connected asbestosis and his non service-connected COPD. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Asbestosis is evaluated under the General Rating Formula for Interstitial Lung Disease. Under this formula, a 10 percent rating is warranted if Forced Vital Capacity (FVC) is 75 to 80 percent predicted; or, Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66 to 80 percent predicted. A 30 percent disability rating is warranted for FVC of 65 to 74 percent predicted, or; DLCO (SB) of 56 to 65 percent predicted. A 60 percent disability rating is warranted 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. A maximum schedular 100 percent disability rating is warranted for FVC less than 50 percent of predicted value, or; 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 (right heart failure) or pulmonary hypertension, or; if outpatient oxygen therapy is required. 38 C.F.R. § 4.97, Code 6833. Under the rating criteria for COPD (Diagnostic Code 6604), Forced Expiratory Volume in one second (FEV-1) that is less than 40-percent predicted, or; a ratio of FEV-1/FVC of 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, or right ventricular hypertrophy, or; pulmonary hypertension, or; episodes of acute respiratory failure, or if outpatient oxygen therapy is required, then a 100 percent rating is appropriate. 38 C.F.R. § 4.97, Code 6604. COPD with a FEV-1 of 40- to 55-percent predicted, or; a FEV-1/FVC 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 oxygen consumption (with cardiac or respiratory limitation) is evaluated as 60 percent disabling. A FEV-1 of 56- to 70-percent predicted, or a FEV-1/FVC of 56 to 70 percent, or DLSO (SB) of 56 to 65 percent predicted, is evaluated as 30 percent disabling. If COPD has FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or DLSO (SB) of 66 to 80 percent predicted is evaluated as 10 percent disabling. There are special provisions for the application of the rating criteria for certain diagnostic codes, including DC 6600, 6603, 6604, 6825-6833, and 6840-6845. 38 C.F.R. § 4.96(d). Pulmonary function testing (PFT) is required to evaluate these conditions, except when the results of maximum exercise capacity test are of record and are 20 ml/kg or less; when pulmonary hypertension cor pulmonale or right ventricular hypertrophy has been diagnosed; or when there have been one or more episodes of acute respiratory failure. 38 C.F.R. § 4.96(d)(1). If DLCO (SB) results are not of record, such conditions are evaluated based on alternative criteria as 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). When PFTs are not consistent with clinical findings, conditions are evaluated based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. 38 C.F.R. § 4.96(d)(3). 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. 38 C.F.R. § 4.96(d)(4). When evaluating based on PFTs, post-bronchodilator results are to be used unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case, the pre-bronchodilator results are used for rating purposes. 38 C.F.R. § 4.96(d)(5). These rating codes do not contain provisions for a zero percent evaluation. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. An increased rating in excess of 30 percent from February 27, 2015 to February 24, 2021 for asbestosis is denied. On remand, the Board directed that the complete February 2015 PFT results including the post-bronchodilator DLCO was to be obtained. In a November 2020 addendum/clarifying opinion, the November 2020 VA examiner stated that a post-bronchodilator DLCO was not done in February 2015 because the pre-bronchodilator was normal, 96% predicted. See C&P Exam received 11/23/2020 at pages 2-3. The Board finds that the rationale from this VA staff physician for the omittance of the post-bronchodilator results is adequate as it explains why such results were not previously associated with the claims file and this aligns with the applicable regulation, 38 C.F.R. § 4.96(d)(4). Therefore, the Board finds that the results of the February 2015 VA examination are complete and reliable. The results of the February 2015 PFT were as follows: Pre-bronchodilator results showed FVC was 69 percent predicted; FEV-1 was 60 percent predicted; FEV-1/FVC 57 percent; and DLCO was 96 percent predicted. The post-bronchodilator results were FVC with 72 percent predicted; FEV-1 with 64 percent predicted, and FEV-1/FVC with 59 percent. Accordingly, given that the January 2019 VA examiner, a staff physician, opined that the FVC was the most accurate test epidemiologically for the Veteran’s condition, a rating in excess of 30 percent is not warranted since his FVC was 69 percent predicted which entitles him to a 30 percent rating. See C&P Exam received 11/28/2018 at page 2; see also C&P Exam received 1/15/2019 at page 3-4. Accordingly, the Board finds the preponderance of the evidence is against a finding that of a rating in excess of 30 percent from February 27, 2015 to February 25, 2021 is warranted. 38 C.F.R. § 4.96 (d)(4). An increased rating of 100 percent for asbestosis is granted from February 25, 2021. The Veteran received a new VA examination in January 2021. The January 2021 VA examiner diagnosed the Veteran with COPD and asbestosis. The examiner noted the Veteran required intermittent use of Albuterol, and that his current symptom was shortness of breath. See C&P Exam received 3/09/2021 pages 2-3. A chest x-ray revealed the presence of pleural plaque consistent with asbestosis. A PFT was performed in February 2021, and the results were as follows: Pre- bronchodilator: FVC: 82 percent predicted; FEV-1: 62 percent predicted; FEV-1/FVC: 59 percent; and DLCO: 22.4 percent predicted; and Post-bronchodilator: FVC: 101 percent predicted; FEV-1: 67 percent predicted; FEV/FEVC: 51 precent. Id. at page 11. The examiner indicated that the FVC percent predicted was the test result that most accurately reflects the Veteran’s level of disability. However, no rationale was included. Exercise compacity testing was not performed. Based on the January 2021 VA examination, the Board finds that the Veteran is entitled to a 100 percent rating. Under 38 C.F.R. § 4.96(d)(2), the DLCO (SB) is to be used when available. Here, the Veteran’s DLCO (SB) results entitle him to a 100 percent rating since the result, 22.4 percent predicted, is less than 40 percent predicted and therefore meets the criteria for a 100 percent rating. 38 C.F.R. § 4.96(d)(2); DC 6604. The Board acknowledges the Veteran’s representative’s contention of remanded for a new examination and opinion in the April 2021 brief due to the February 2021 diagnostics, but since it finds that a 100 percent rating is warranted from February 2021 a remand is unnecessary. Accordingly, the Board finds that a 100 percent (maximum schedular) rating from February 25, 2021, the date that the Veteran met the criteria for a 100 percent rating, is warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, 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.