Citation Nr: 21027129 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-07 627 DATE: May 4, 2021 ORDER For the period on appeal prior to May 23, 2018, a 10 percent rating for interstitial lung fibrosis/pulmonary fibrosis is granted. Beginning May 23, 2018, a rating of 30 percent, but no higher, for asbestosis and interstitial lung fibrosis (previously rated as interstitial lung fibrosis/pulmonary fibrosis) is granted. From October 8, 2020, a rating excess of 30 percent for asbestosis and interstitial lung fibrosis is denied. FINDINGS OF FACT 1. For the period on appeal prior to May 23, 2018, pulmonary function tests (PFTs), post-bronchodilator, showed Forced Expiratory Volume at one second to Forced Vital Capacity (FVC/FEV-1) greater than 80 percent predicted and Forced Vital Capacity (FVC) of 76 percent predicted. 2. From May 23, 2018, post-bronchodilator FVC/FEV-1 was greater than 80 percent predicted and FVC was between 65 and 74 percent predicted. CONCLUSIONS OF LAW 1. For the period on appeal prior to May 23, 2018, the criteria for a 10 percent rating for interstitial lung fibrosis/pulmonary fibrosis have been met. 8 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.97, Diagnostic Code 6845 (2020). 2. From May 23, 2018, the criteria for a 30 percent rating, but no higher, for asbestosis and interstitial lung fibrosis have been met. 8 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code 6833 (2020). 3. From October 8, 2020, the criteria for a rating in excess of 30 percent for asbestosis and interstitial lung fibrosis have not been met. 8 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code 6833 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In September 2020, the Board remanded this matter for additional evidentiary development. 1. Entitlement to a compensable initial rating for interstitial lung fibrosis / pulmonary fibrosis for the period on appeal prior to October 8, 2020 2. Entitlement to an initial rating in excess of 30 percent for asbestosis and interstitial lung fibrosis from October 8, 2020 Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Service connection for interstitial lung fibrosis/pulmonary fibrosis was established in a November 2015 rating decision that is the subject of this appeal and assigned an initial noncompensable rating under 38 C.F.R. § 4.97, Diagnostic Code 6845, effective July 31, 2015 (date of claim). A January 2021 decision assigned a 30 percent rating under 38 C.F.R. § 4.97, Diagnostic Code 6833, effective October 8, 2020 (date of pulmonary function test). The Veteran's lung condition has been evaluated under the General Rating Formulas for restrictive lung disease and interstitial lung disease. Under the formula for restrictive lung disease, a 10 percent rating is warranted where the forced expiratory volume in one second (FEV-1) is 71- to 80-percent of predicted value, or; the ratio of (FEV-1) to forced vital capacity (FEV-1/FVC) is 71 to 80 percent, or; diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO) (SB) is 66- to 80-percent of predicted value. A 30 percent rating is warranted where FEV-1 is 56- to 70-percent of predicted value, or; FEV-1/FVC is 56 to 70 percent, or; DLCO (SB) is 56- to 65-percent predicted. A 60 percent rating is warranted where FEV-1 is 40- to 55- percent predicted, or; FEV-1/FVC is 40 to 55 percent predicted, or; DLCO (SB) of 40- to 55- percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardio respiratory limit). A 100 percent rating is warranted for FEV-1 less than 40 percent of predicted value, 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 Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6845. Under the formula for interstitial lung disease, a 10 percent rating is warranted where FVC is 75 to 80 percent predicted; or DLCO (SB) is 66 to 80 percent predicted. A 30 percent rating is warranted where FVC is 65 to 74 percent; or DLCO (SB) is 56 to 65 percent predicted. A 60 percent rating is warranted where FVC is 50 to 64 percent predicted; or DLCO (SB) is 40 to 55 percent predicted; or maximum exercise capacity is 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 100 percent rating is warranted where FVC is less than 50 percent of predicted value; or DLCO (SB) is less than 40 percent of predicted; or maximum exercise capacity is less than 15 ml/kg/min oxygen consumption with cardiac or respiratory limitation; or cor pulmonale (right heart failure) or pulmonary hypertension or requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6833. In every instance where the schedule does not provide a zero percent evaluation fora 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. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are done for disability evaluation purposes except when pre-bronchodilator PFT results are normal, or the examiner determines they should not be done and explains why. 38 C.F.R. § 4.96(d)(4). When evaluating based on pulmonary function tests, 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). When there is a disparity between the results of different PFTs such that the level of evaluation would differ depending on which test result is used, the regulations instruct use of the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). If the FEV-1 and the FVC are both greater than 100 percent, then a compensable evaluation cannot be assigned based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96(d)(7). The Veteran seeks a higher initial rating for his service-connected pulmonary condition, asserting, in essence, that his condition has worsened, he is physically deteriorating, and the current rating does not reflect the severity of his condition. See November 2015, December 2015 and February 2016 statements, and September 2019 Board hearing testimony. In his November 2015 and February 2016 statements, he further asserted that he has lung scarring due to in-service asbestos exposure. During the September 2019 Board hearing, he stated that his symptoms, including breathing difficulties, have worsened in the past few years and that he uses his prescribed inhaler more frequently. He stated his symptoms are worse during physical activity, such as climbing stairs, and during the winter months because of breathing in the cold air; and that he is not prescribed steroids or use an oxygen tank. After reviewing the evidence of record, the Board finds that a rating in excess of those currently assigned is not warranted at any point during the appeal period. During a September 2015 VA examination, the examiner diagnosed pulmonary fibrosis. She did not diagnosis any other respiratory condition. The examiner noted that the Veteran did not require the use of oral or parenteral corticosteroid medication, antibiotics or oxygen therapy for his respiratory condition but required the use of daily inhaled medications and oral bronchodilator therapy. Pulmonary function testing revealed the following spirometry and lung function values: pre-bronchodilator -- FVC 75 percent predicted, FEV-1 85 percent predicted, FEV1/FVC 113 percent predicted, and DLCO 98 percent predicted; and post-bronchodilator -- FVC 76 percent predicted, FEV-1 89 percent predicted, and FEV1/FVC 116 percent predicted. The examiner indicated that FEV-1/FVC most accurately reflected the Veteran's level of disability. Diagnostic testing included a February 2015 chest x-ray and a February 2015 computed tomography (CT) scan, which showed findings consistent with interstitial lung fibrosis with bronchiectasis. There were no other significant findings. The Veteran reported his respiratory condition did not impact his ability to work. An April 2017 pulmonary function test showed FVC 67 percent predicted; FEV-1 78 percent predicted; total lung capacity 73 percent; and DLCO 103 percent predicted. A June 2017 PFT showed FVC 65 percent predicted; FEV-1 75 percent predicted; total lung capacity 72 percent; and DLCO 103 percent predicted. The clinician noted there were no significant changes compared to the prior study in 2015. The clinician noted a January 2017 noncontrast chest CT showed mild peripheral interstitial abnormalities with mild lower lobe bronchiectasis; that February 2017 PFTs showed a mild restrictive defect, normal DLCO and a negative bronchodilator challenge; and that the pulmonary process that is occurring is mild and slow/stable as his lung function testing and CT scans have not changed in 2 years. The Veteran reported activities, such as planting a tree and climbing stairs cause shortness of breath, but he can walk one mile on flat ground without issues and enjoys golfing 18 holes, driving a cart between holes. An April 2018 VA treatment record noted that the Veteran's pulmonary function was stable to slightly improved and imaging, including a chest CT, demonstrated stable findings. The Veteran endorsed stable dyspnea, denied recent exacerbations and reported he can walk one-half mile before becoming short of breath, walk 20 minutes on a treadmill and plays golf. During a May 23, 2018 VA examination, the examiner remarked that the pulmonary fibrosis had changed and was a progression of the previous VA diagnosis. She did not diagnosis any other respiratory condition. The Veteran reported increased shortness of breath with activity. The examiner noted that the Veteran did not require use of oral or parenteral corticosteroid medication, oral bronchodilators, antibiotics, or oxygen therapy for his respiratory condition but required the use of daily inhalational anti-inflammatory medication. Pulmonary function testing revealed the following spirometry and lung function values: pre-bronchodilator -- FVC 70 percent predicted, FEV-1 75 percent predicted, and FEV1/FVC 108 percent predicted; and post-bronchodilator -- FVC 70 percent predicted; FEV-1 78 percent predicted; and FEV1/FVC 111 percent predicted. The examiner noted the FVC of 70 percent was unchanged with Albuterol treatment. The examiner indicated that FEV-1/FVC most accurately reflected the Veteran's level of disability; therefore, DLCO was not completed as it was not indicated in this case. New diagnostic testing included a May 2018 chest x-ray, which was normal. There were no other significant findings. The Veteran reported that his respiratory condition impacted his ability to work in that it causes greater shorter of breath when he walks more than a few blocks. An October 2018 pulmonary function test showed FVC 66 percent predicted; FEV-1 87 percent predicted; FEV1/FVC 87 percent predicted; total lung capacity 75 percent; and DLCO 102 percent predicted. The clinician noted the Veteran has done very well since their first encounter a year prior and pulmonary function is stable. An April 2019 pulmonary function test showed FVC 64 percent predicted; FEV-1 75 percent predicted; and FEV1/FVC 86 percent predicted. The Veteran reported feeling slightly worse compared to 6 months prior and endorsed a cough, worse at night, and that his dyspnea is stable. He reported that his prescribed medications have improved his dyspnea. The clinician noted a slight worsening of symptoms and slight decline in pulmonary function, with no clear trigger, although the Veteran's birds remain in the house; that the degree of interstitial lung disease is very minimal and the pulmonary function tests are still largely normal with regards to gas exchange. A November 2019 VA treatment record reflects that the Veteran reported that his exertional shortness of breath is progressing, his cough is more frequent and he becomes more readily winded. Pulmonary function test showed FVC 61 percent predicted; FEV-1 72 percent predicted; and FEV1/FVC 86 percent predicted; and DLCO 84 percent predicted. The clinician noted a slight decline in pulmonary function tests over the last several visits, correlating to the Veteran's worsening symptoms, but that radiographically the degree of interstitial lung disease is minimal and largely unchanged, with no clear triggers for progressive fibrotic disease, except for perhaps the Veteran's cockatiel. A December 2019 VA treatment record notes that a transbronchial biopsy of the lung showed no significant histologic abnormality. A January 2020 VA treatment record indicates a panel of clinicians indicated a recent bronchoscopy noted vocal cord immobility but that flexible laryngoscopy today showed normal vocal cord and cord mobility laterally; and that it was reasonable to consider a steroid trial. A subsequent January 2020 VA treatment record shows that the Veteran preferred to avoid steroids at that time given that his dyspnea and cough have been stable for a few weeks to months. During a January 2021 VA examination, the examiner diagnosed asbestosis and interstitial lung fibrosis/pulmonary fibrosis related to in-service asbestos exposure. She indicated the Veteran did not have any scars related to the pulmonary condition. The Veteran reported that his lung condition is progressively worsening, and that increased tiredness causes him to shake and feel dizzy. The examiner noted that the Veteran did not require use of oral or parenteral corticosteroid medication, antibiotics, or oxygen therapy for his respiratory condition but required the use of daily inhalational bronchodilator therapy and daily inhalational inflammatory medication. Pulmonary function testing performed on October 8, 2020 revealed the following spirometry and lung function values: pre-bronchodilator -- FVC 64 percent predicted, FEV-1 74 percent predicted, FEV1/FVC 115 percent predicted, and DLCO 102 percent predicted; post-bronchodilator -- FVC 65 percent predicted, FEV-1 77 percent predicted, and FEV1/FVC 117 percent predicted. The examiner indicated that the FVC percentage predicted most accurately reflected the Veteran's level of disability. After reviewing the evidence of record, to include the September 2015 and May 2018 VA examination reports, VA treatment records and the Veteran's statements, the Board finds that the criteria for a 10 percent rating have been met during the period of the appeal prior to May 23, 2018 and that a 30 percent rating is warranted from that date. The Board acknowledges that the September 2015 and May 2018 VA examiners indicated that FEV-1/FVC most accurately reflects the Veteran's level of disability. However, the January 2021 VA examiner found that FVC most accurately reflects the Veteran's level of disability. The Board further notes that the rating criteria for interstitial lung disease utilizes FVC for rating purposes, and that is the disability for which the Veteran is service connected. Thus, the Board will resolve all doubt in the Veteran's favor and utilize the post-bronchodilator FVC values throughout the appeal as a VA examiner found that test to be most representative of his disability and that test is more favorable. In this regard, on the September 2015 VA examination, post-bronchodilator FEV-1/FVC was 116 predicted, which warrants a noncompensable rating. On that same examination, post-bronchodilator FVC was 76 percent predicted, which warrants a 10 percent rating under Diagnostic Code 6833. As FVC was not less than 75 percent predicted and FEV-1/FVC was not less than 80 percent predicted, a higher rating is not warranted prior to May 1, 2018. The Board acknowledges that the Veteran's FVC measured 67 and 65 percent predicted during April and June 2017 VA treatment. However, testing during VA treatment does not reflect post-bronchodilator values and is not adequate for rating purposes. In this regard, post-bronchodilator values are utilized for rating pulmonary disabilities. See 38 C.F.R. § 4.96(d). Thus, a higher rating based on PFTs during VA treatment which do not include post-bronchodilator values is not warranted. Beginning May 23, 2018, the Board finds that a 30 percent rating is warranted for the Veteran's interstitial lung fibrosis/pulmonary fibrosis. On that date, VA examination showed post-bronchodilator FVC of 70 percent predicted, which warrants a 30 percent rating under the General Rating Formula for Interstitial Lung Disease. However, a rating higher than 30 percent is not warranted at any point from May 23, 2018. At that time the Veteran's FEV-1/FVC was measured as 111 percent predicted during the May 2018 VA examination. At no point has FEV-1/FVC been measured as less than 81 percent predicted. Moreover, the Veteran's post-bronchodilator FVC has been measured, at worst, as 65 percent predicted, as indicated in the January 2021 VA examination report based on PFT testing performed on October 8, 2020; thus, the objective evidence does not support a rating in excess of the current 30 percent initial rating. Further, notwithstanding that the FEV-1/FVC an FVC percentages have been indicated by the VA examiners as the most accurate reflection of his disability, at no point has DLCO (SB) been measured as 55 percent predicted or less, or has maximum exercise capacity been measured as 20 ml/kg/min or less oxygen consumption with cardiorespiratory limitation, to warrant a 60 percent or higher rating. The Board acknowledges that the Veteran's FVC measured less than 65 percent predicted during April and November 2019 VA treatment visits. However, as noted above, the PFTs at that time did not include post-bronchodilator testing, and are not adequate for rating purposes. The Board has considered the Veteran's statements that his pulmonary disability is worse than currently evaluated and that his symptoms have progressively worsened, including his fatigue and shortness of breath. The Veteran is competent to report symptoms and observations relating to his disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, he has not been shown to have the medical training required to objectively evaluate his level of disability. See Layno v. Brown, 6 Vet. App. 465 (1994). Further, while the Veteran asserted on appeal that he has lung scarring due to his asbestos exposure, the Board finds such assertions are not consistent with the medical evidence. In this regard, the January 2021 VA examiner specifically noted that there were no scars related to his pulmonary disability. Regardless, the Veteran's pulmonary disease is rated based on functional respiratory impairment, not the presence or absence of lung scarring for pulmonary disease. The Board finds the medical evidence, including the January 2021 VA examination report, are more probative and persuasive as to severity of the pulmonary disability than the lay statements. As a final matter, the Veteran does not meet the schedular requirements for a total disability rating based on individual unemployability. While he reported his pulmonary condition impacts work, he had not alleged that he is unemployable due to the service-connected condition. Moreover, the record reflects that he is able to walk a half mile to a mile, can walk on the treadmill for 20 minutes, and plays 18 holes of golf utilizing a golf cart. Such does not reflect an inability to work. Accordingly, referral for extraschedular consideration of a total disability rating based on unemployability is not warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009) is not warranted. In sum, the Board finds that a 10 percent rating is warranted during the period on appeal prior to May 23, 2018, and that a 30 percent rating, but no higher, is warranted from that date. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.