Citation Nr: 21026153 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-29 736 DATE: April 30, 2021 ORDER Entitlement to a 100 percent rating prior to June 25, 2019 for pleural plaques with chronic obstructive pulmonary disease (COPD) is granted. FINDING OF FACT Prior to June 25, 2019, the Veteran’s pleural plaques with COPD required outpatient oxygen therapy. CONCLUSION OF LAW The criteria for entitlement to a 100 percent rating prior to June 25, 2019 for pleural plaques with COPD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Code 6833. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to June 1968 and September 1968 to January 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was last remanded by the Board in October 2018 for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that on remand, a July 2020 rating decision awarded a 100 percent rating for the Veteran’s service-connected pleural plaques with COPD from June 25, 2019. Accordingly, for the period from June 25, 2019, the Veteran received a full award of the benefit sought and this period is no longer on appeal. 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 appellant working or seeking work. 38 C.F.R. § 4.2. 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. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). With the initial rating assigned with the award of service connection for a disability, “staged” ratings to reflect distinct periods when different levels of impairment were shown are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Under Diagnostic Code 6833, asbestosis is rated under the General Rating Formula for Interstitial Lung Disease. 38 C.F.R. § 4.97, Diagnostic Codes 6825-6833. Under this formula, a 30 percent rating is warranted for forced vital capacity (FVC) of 65 to 74 percent predicted or diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) of 56 to 65 percent predicted. A 60 percent 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/min oxygen consumption with cardiorespiratory limitation. A 100 percent rating is warranted 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, cor pulmonale or pulmonary hypertension; or a requirement of 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). Entitlement to a 100 percent rating prior to June 25, 2019 for pleural plaques with COPD is granted. The Veteran contends that he is entitled to a 100 percent rating for his service-connected pleural plaques with COPD, claimed as asbestosis. A July 2013 VA treatment record notes that the Veteran underwent a computerized tomography angiography (CTA) which confirmed a finding of COPD and revealed diffuse interstitial fibrosis and emphysematous changes. Calcified and noncalcified pleural plaques were also noted in the posterior lateral right lower lobe. The Veteran was afforded an in-person VA examination in July 2014. The July 2014 VA examiner noted diagnoses of COPD diagnosed in 1994 and pleural plaques diagnosed in 2012. The VA examiner noted that pulmonary function testing (PFT) was performed in June 2014 which accurately reflected the Veteran’s current pulmonary function. The VA examiner also noted that pulmonary function testing was not performed at the time of the July 2014 VA examination because the Veteran required outpatient oxygen therapy. The June 2014 pulmonary function test results revealed prebronchodilator results with an FVC of 52% , an FEV-1 of 36%, an FEV-1/FVC of 54%, and a DLCO of 47% and postbronchodilator results with an FVC of 57%, an FEV-1 of 42%, and an FEB-1/FVC of 57% with DLCO results not recorded postbronchodilator. The VA examiner noted that the Veteran’s FEV-1 test results most accurately reflected the Veteran’s level of disability. The VA examiner’s report asked the examiner to list the Veteran’s respiratory conditions and indicate which condition was predominantly responsible for the limitation in pulmonary function, if any was present. The VA examiner listed both COPD and pleural plaques but did not indicate which condition was predominantly responsible for limitation in pulmonary function. The VA examiner also determined that the Veteran’s respiratory condition impacted the Veteran’s ability to work because the Veteran reported that he could not do much and that just standing up caused him to be out of breath. An August 2014 VA addendum opinion was obtained in which the VA examiner noted that COPD caused shortness of breath and hypoxia whereas pleural plaques were typically asymptomatic. The VA examiner determined that it was at least as likely as not that the dominant condition causing the Veteran’s need for oxygen was COPD and not pleural plaques. Another VA addendum opinion was obtained in August 2014. The second August 2014 VA addendum opinion noted that the Veteran periodically used steroids and bronchodilators to decrease inflammation and increase air flow into the lungs. The VA examiner explained that pleural plaques did not require the use of steroids. The VA examiner determined that the June 2014 PFT results were indicative of changes in the Veteran’s lungs caused by his non-service- connected COPD and that it was at least as likely as not that the PFT values were the result of the Veteran’s COPD. A December 2016 VA treatment record notes that the Veteran only had 36 percent lung capacity because of his asbestosis. VA treatment records also regularly note that the Veteran was prescribed supplemental at home oxygen for the entire period on appeal. The Veteran was afforded an in-person VA examination via approved video telehealth in June 2019. The June 2019 VA examiner noted diagnoses of COPD and pleural plaques due to asbestosis. The examiner noted that the Veteran had more than one respiratory condition and that the Veteran’s pleural plaques were predominantly responsible for the need for corticosteroids or immuno-suppressive medications. The Veteran’s respiratory condition also required the use of inhaled mediations including inhalational bronchodilator therapy and inhalational anti-inflammatory medication daily and the use of outpatient oxygen therapy for more than 17 hours a day for his respiratory condition. The VA examiner further noted that the Veteran had COPD from pulmonary plaques. During the examination, the Veteran had diminished breath sounds bilaterally. Pulmonary function testing was not performed because the Veteran required outpatient oxygen therapy. The VA examiner determined that the Veteran’s respiratory condition impacted his ability to work. The VA examiner explained that the Veteran was able to perform most activities of daily living without assistance; however, the Veteran’s shortness of breath and exercise intolerance interfered with employment because the Veteran was unable to walk more than 100 feet without rest and had to sleep with oxygen when at home. A VA addendum opinion was obtained in July 2020. The VA examiner noted that the Veteran had diagnoses of COPD, pleural plaques, and interstitial fibrosis. The VA examiner relied on the August 2013 computerized tomography (CT) which revealed that the Veteran had diffuse pulmonary interstitial fibrosis and emphysematous changes. The VA examiner noted that the Veteran had interstitial fibrosis attributed to the Veteran’s asbestos exposure and pleural plaques. The VA examiner explained that the Veteran’s service-connected pleural plaques had progressed to asbestosis as evidenced by the July 2013 CT findings of interstitial fibrosis. The VA examiner noted that the Veteran’s diagnosis of pleural plaques was changed to interstitial fibrosis as diagnosed in 2013 which was a progression of the previous diagnosis of pleural plaques. The VA examiner explained that both interstitial fibrosis and COPD could result in severe shortness of breath and the need for supplemental oxygen and that the VA examiner could not determine which condition was predominantly responsible for the need for outpatient oxygen therapy. As a result, the VA examiner determined it was at least as likely as not that the Veteran’s pulmonary interstitial fibrosis was proximately due to or the result of his pleural plaques (asbestos exposure) and resulted in the Veteran’s shortness of breath and need for supplemental oxygen. Pulmonary function testing was not performed since the Veteran required outpatient oxygen therapy. The VA examiner also noted that the Veteran’s respiratory condition required the use of chronic low dose corticosteroids. The VA examiner was unable to determine whether the Veteran’s pulmonary interstitial fibrosis or COPD was predominantly responsible for the need for corticosteroids because both conditions contributed to the need for corticosteroids. The VA examiner also determined that the Veteran’s respiratory condition impacted his ability to work. The VA examiner noted that more than 5 weeks of work time was lost in the past 12 months as confirmed by medical records and that the Veteran was unable to work due to significant shortness of breath. The evidence of record has consistently shown that the Veteran had shortness of breath and required outpatient oxygen therapy during the period on appeal. However, the VA examiner’s reports have provided conflicting opinions regarding whether the Veteran’s service-connected pleural plaques caused or contributed to the Veteran’s shortness of breath or need for outpatient oxygen therapy. The July 2014 VA examiner’s report did not identify whether the Veteran’s service-connected pleural plaques or his non-service-connected COPD resulted in his respiratory symptoms and need for outpatient oxygen therapy. The August 2014 addendum opinions attributed the Veteran’s respiratory symptoms to his non-service-connected COPD and explained that pleural plaques were generally asymptomatic. The June 2019 VA examiner’s report noted, however, that the Veteran had COPD from pulmonary plaques and that the Veteran’s pulmonary plaques were predominantly responsible for his respiratory symptoms. Lastly, the July 2020 VA addendum opinion determined that it was at least as likely as not that the Veteran’s pulmonary interstitial fibrosis was due to or the result of his pleural plaques and was responsible for the Veteran’s respiratory symptoms and need for outpatient oxygen therapy. The Board affords greater probative value to the July 2020 VA addendum opinion. The July 2020 VA addendum opinion was based on a thorough review of the evidence of record. The July 2020 VA examiner cited to July 2013 CT findings of interstitial fibrosis and explained that interstitial fibrosis was a progression of the Veteran’s previously diagnosed pleural plaques. The VA examiner’s reliance on the July 2013 CT shows that the Veteran’s service-connected respiratory disability had progressed years prior. Therefore, the July 2020 findings that the Veteran’s interstitial fibrosis was a progression of the Veteran’s service-connected pleural plaques and resulted in shortness of breath and the need for outpatient oxygen therapy were applicable as early July 2013. Moreover, the record is also unclear regarding the etiology of the Veteran’s COPD. The Board notes that the Veteran was not awarded service connection for COPD; however, the June 2019 VA examiner’s report determined that the Veteran’s COPD was due to his pleural plaques and that the Veteran’s pleural plaques were the predominant disability causing his respiratory symptoms. The Board emphasizes that the July 2020 rating decision awarded the Veteran a 100 percent rating from June 25, 2019 based on the June 2019 and July 2020 VA opinions. These opinions do not show a worsening of the Veteran’s respiratory symptoms but determined that the Veteran’s service-connected pleural plaques progressed to interstitial fibrosis as early as July 2013 and was the cause of the Veteran’s shortness of breath and need for outpatient oxygen therapy. Accordingly, in affording the Veteran the benefit of the doubt the Board must grant the Veteran a 100 percent rating under Diagnostic Code 6833 due to his persistent need for outpatient oxygen therapy since February 2014 which is at least as likely as not proximately due to or the result of the Veteran’s service-connected pleural plaques that progressed to interstitial fibrosis as early as July 2013. As such a 100 percent rating is granted for the Veteran’s service-connected pleural plaques with COPD for the entire appeal period. D. SMART Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, 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.