Citation Nr: 21028756 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-49 786 DATE: May 12, 2021 ORDER Prior to January 12, 2016, entitlement to an initial compensable rating for asbestosis with chronic obstructive pulmonary disease (COPD), for substitution benefit purposes, is denied. From January 12, 2016 to March 23, 2018, entitlement to a 10 percent rating, but no higher, for asbestosis with COPD, for substitution benefit purposes, is granted. From March 24, 2018, forward, entitlement to a 60 percent rating, but no higher, for asbestosis with COPD, for substitution benefit purposes, is granted. FINDINGS OF FACT 1. Prior to January 12, 2016, the Veteran's service-connected asbestosis with COPD has been manifested by a Forced Vital Capacity (FVC) of no worse than 92 percent predicted; Diffusion Capacity of the Lung to Carbon Monoxide by the Single Breath Method (DLCO (SB)) has never been shown to be 80 percent or less predicted. 2. From January 12, 2016 to March 23, 2018, the Veteran's service-connected asbestosis with COPD has been manifested by an FVC of no worse than 80 percent predicted and DLCO (SB)) has never been shown to be 71 percent or less predicted. 3. Resolving reasonable doubt in the Veteran's favor, from March 24, 2018, the Veteran's service-connected asbestosis with COPD has been manifested by an FVC no worse than 59 percent predicted and DLCO (SB) has never been shown to be less than 55 percent predicted. 4. At no point during the appeal period does the evidence show that the Veteran has a maximum exercise capacity of less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, cor pulmonale, or pulmonary hypertension. CONCLUSIONS OF LAW 1. Prior to January 12, 2016, the criteria for a compensable rating for asbestosis with COPD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, 4.97, Diagnostic Code 6833. 2. From January 12, 2016 to March 23, 2018, the criteria for a 10 percent rating, but no higher, for asbestosis with COPD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, 4.97, Diagnostic Code 6833. 3. From March 24, 2018, the criteria for a 60 percent rating, but no higher, for asbestosis with COPD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, 4.97, Diagnostic Code 6833. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1955 to February 1959. He died in July 2019. The appellant is the Veteran's surviving spouse. The Board of Veterans' Appeals (Board) notes that the appellant has appropriately been recognized as the substitute-claimant in this case. 38 U.S.C. § 5121A; see August 2020 AMA Notification Letter. This matter comes before the Board on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Board remanded the matter on appeal for additional development. As there has been substantial compliance with the remand, the Board proceeds with the appeal herein. Stegall v. West, 11 Vet. App. 268, 271 (1998) As the Veteran has not claimed nor has the record raised inability to work due to the service-connected disability on appeal, TDIU is not raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to an initial compensable rating prior to January 21, 2019 and in excess of 10 percent thereafter for asbestosis with COPD. The Veteran's current evaluations for asbestosis with COPD, Diagnostic Code 6833, is rated under the General Rating Formula for Interstitial Lung Disease. 38 U.S.C. § 1155, 38 C.F.R. § 4.97 (DCs 6825-6833). Under this formula, a 100 percent disability rating is assigned where the evidence shows 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; that outpatient oxygen therapy is required. Id. A 60 percent disability rating is assigned where the evidence shows 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 30 percent disability rating is assigned where the evidence shows FVC of 65 to 74 percent predicted, or; DLCO (SB) of 56 to 65 percent predicted. Id. A 10 percent disability rating is assigned where the evidence shows FVC of 75 to 80 percent predicted, or; DLCO (SB) of 66 to 80 percent predicted. Id. When evaluating based on PFTs, post-bronchodilator results are used 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. When there is disparity between the results of different PFT's so that the level of evaluation would differ depending on which test result is used, the Board uses the test result that the examiner states most accurately reflects the level of disability. See 38 C.F.R. § 4.96(d)(5), (6). Factual Background A March 2015 private treatment record noted the Veteran's diagnoses of COPD, bilateral pulmonary interstitial fibrosis, and bilateral asbestos pleural disease. See April 2015 Medical Treatment Record Non-Government Facility. The reviewing provider noted the Veteran's progressively worsening shortness of breath with exertion and that he was limited to walking about 100 yards before stopping. In an October 1, 2015 VA examination, the examiner noted diagnoses of COPD and asbestosis and noted his recent PFT was consistent with his diagnoses. See October 2015 C&P Exam. During examination, the Veteran reported daily shortness of breath that was worse with activity as well as excessive mucous production and wheezing at night. He reported he had to stop every 100 yards to catch his breath. The examiner noted the Veteran used Albuterol puffer for a couple months but did not get significant improvement, so he stated he had not used any medication since. The examiner noted that in a recent PFT study, the therapist stated the Veteran did not know how to properly use the puffer. A March 2015 PFT showed FVC of 92 percent predicted, FEV-1 of 95 percent predicted, FEV-1/FVC of 102 percent, and no DLCO (SB) score. The examiner noted the FVC percentage most accurately reflects the Veteran's level of disability. See also January 2017 CAPRI. A January 12, 2016 PFT showed FVC of 80 percent predicted, FEV-1 of 75 percent predicted, FEV-1/FVC of 70 percent, and DLCO (SB) score of 71. See February 2016 Medical Treatment Record Non-Government Facility. In a disability benefits questionnaire received in February 2016, the private examiner noted the FVC percentage most accurately reflected the Veteran's level of disability. See February 2016 Disability Benefits Questionnaire (DBQ) Veteran Provided. In a June 14, 2017 VA examination, the examiner noted diagnoses of COPD and asbestosis and noted the Veteran's reports of shortness of breath in the shower and walking limitation of 100 yards. See July 2017 C&P Exam. The examiner noted a June 2017 PFT showed FVC of 81 percent predicted, FEV-1 of 75 percent predicted, FEV-1/FVC of 93 percent, and DLCO (SB) score of 103 percent predicted. The examiner noted the DLCO (SB) score most accurately reflected the Veteran's level of disability. See also January 2017 CAPRI. A March 24, 2018 PFT showed FVC of 59 percent predicted, FEV-1 of 53 percent predicted, FEV-1/FVC of 89 percent, and DLCO (SB) score of 55 percent predicted. See May 2019 Medical Treatment Record Non-Government Facility. A January 21, 2019 private treatment record noted the Veteran's total lung capacity and DLCO improved compared to his last study in May 2018, although still mildly impaired. A January 2019 PFT showed FVC of 61 percent predicted, FEV-1 of 63 percent predicted, FEV-1/FVC of 102 percent, and DLCO (SB) score of 73 percent predicted. See May 2019 Medical Treatment Record Non-Government Facility. Analysis Prior to January 12, 2016, the evidence above does not show an FVC of 80 percent predicted or DLCO (SB) of 80 percent predicted or less. The evidence also does not show that the Veteran has a maximum exercise capacity of less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, cor pulmonale, or pulmonary hypertension during this initial period on appeal. Therefore, a compensable rating for the Veteran's asbestosis with COPD prior to January 12, 2016 is not warranted. From January 12, 2016 to March 23, 2018, the evidence shows an FVC of at worst 80 percent predicted as well as a DLCO (SB) of at worst 71 percent predicted. As the evidence during this period on appeal does not show an FVC of 74 percent predicted or less, or DLCO (SB) of 65 percent predicted or less, as required for a rating greater than 10 percent, a 10 percent rating, but no higher, for the Veteran's asbestosis with COPD from January 12, 2016 to March 23, 2018 is warranted. From March 24, 2018, the Board finds that a 60 percent rating for asbestosis with COPD is warranted based on March 24, 2018 PFT results. In March 24, 2018, the Veteran's PFT results indicated an FVC of 59 percent predicted and a DLCO (SB) of 55 percent predicted. The Board acknowledges that there was some improvement in a subsequent January 21, 2019 PFT. However, the January 2019 PFT showed a FVC of 61 percent predicted and DLCO (SB) score of 73 percent predicted. The evidence of record appears to provide conflicting determinations of whether FVC or DLCO most accurately reflects the level of disability. Considering the similar percentage predicted under FVC in both March 2018 and January 2019, the Board resolves reasonable doubt in the Veteran's favor, and will assign a 60 percent rating, but no higher, from March 24, 2018. As for a rating greater than 60 percent, the evidence does not show that the Veteran had an FVC of less than 50 percent predicted, or DLCO (SB) less than 40 percent predicted; nor does it show a maximum exercise capacity of less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, cor pulmonale, pulmonary hypertension, or that the Veteran requires outpatient oxygen therapy due to his pulmonary asbestosis. Therefore, a 60 percent rating, but no higher, for the Veteran's asbestosis with COPD from March 24, 2018 is warranted. J. TUNIS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Cheng, 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.