Citation Nr: 21029336 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-38 582 DATE: May 13, 2021 ORDER A rating in excess of 60 percent for asbestosis prior to June 21, 2017, is denied. A 60 percent rating, but not more, for asbestosis since June 21, 2017, is granted, subject to the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran served on active duty from October 1962 to June 1965. 2. Prior to June 20, 2017, asbestosis was manifested by subjective complaints of shortness of breath upon exertion; objective findings included an FVC of, at worst, 56 percent predicted, DLCO of 92 percent at worst, no history of cor pulmonale or pulmonary hypertension, and no need for outpatient oxygen therapy. 3. Since June 21, 2017, asbestosis has been manifested by subjective complaints of shortness of breath upon exertion; objective findings include an FVC of, at worst, 53 percent predicted, DLCO of 92 percent at worst, no history of cor pulmonale or pulmonary hypertension, and no need for outpatient oxygen therapy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for asbestosis prior to June 21, 2017, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.104, Diagnostic Code (DC) 6833 (2020). 2. The criteria for a 60 percent rating, but no more, for asbestosis since June 21, 2017, have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.104, DC 6833 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In October 2020, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In November 2020, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's asbestosis has been rated under DC 6833 for the entire period on appeal. Specifically, he was in receipt of a 60 percent rating from August 15, 2016; a noncompensable rating since June 21, 2017, to October 16, 2017; a 30 percent rating from October 16, 2017 to January 3, 2018; and a 60 percent rating was restored from January 3, 2018. Under DC 6833, asbestosis is rated as follows: Forced Vital Capacity (FVC) of 75 to 70 percent predicted; or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted (10 percent); FVC of 65 to 74 percent predicted; or DLCO (SB) of 56 to 65 percent predicted (30 percent); 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 (60 percent); 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; requires outpatient oxygen therapy (100 percent). Prior to June 21, 2017 Prior to June 21, 2017, the Veteran was assigned a 60 percent rating for asbestosis. At the October 2020 Board hearing, he asserted that asbestosis had worsened as he had been hospitalized for episodes of shortness of breath. Turning to the medical evidence, an October 2016 Disability Benefits Questionnaire (DBQ) submitted by the Veteran showed diagnoses for asthma, chronic obstructive pulmonary disease (COPD), restrictive lung disease, and asbestosis, all of which were interrelated. He described symptoms including shortness of breath with exertion, which was worsening with time. FVC results were 88 percent predicted, and DLCO results were 92 percent predicted. The examiner opined that the FVC percentage most accurately reflected the Veteran's level of disability. Maximum exercise capacity testing was not performed, and there was no evidence that outpatient oxygen therapy was required. The examiner also found that the Veteran's condition did not result in cardiopulmonary complications such as cor pulmonale or pulmonary hypertension. Private treatment notes from February 2017 showed FVC of 63 percent pre/56 percent post, indicating moderate restriction associated with asbestosis. Thus, prior to June 21, 2017, the medical evidence shows that a 60 percent rating, but no higher is appropriate. Specifically, there was no evidence of an FVC less than 50 percent, DLCO less than 40 percent, any maximum exercise capacity, cor pulmonale, pulmonary hypertension, or requirement of outpatient oxygen therapy. Therefore, the medical evidence does not support a higher rating for this time period. Since June 21, 2017 From June 21, 2017, to October 16, 2017, asbestosis was rated as noncompensable. It was increased to 30 percent from October 16, 2017, to 60 percent effective January 3, 2018. After a consideration of the medical evidence, the Board finds that a 60 percent rating is warranted since June 21, 2017. A June 2017 VA examination revealed similar diagnoses for COPD, chronic bronchitis, and asbestosis. The Veteran reported hospitalization for numerous bouts of pneumonia and COPD and reported that he was most recently in the hospital in May 2017. He reported symptoms of loss of breath with exertion, heavy coughing and burning lungs. Pulmonary function testing (PFT) showed FVC of 53 percent predicted pre/88 percent predicted post. DLCO testing results were not rendered. The examiner found that the Veteran's asbestosis did not require outpatient oxygen therapy, and there was no indication that it resulted in cardiopulmonary complications such as cor pulmonale or pulmonary hypertension. Exercise capacity testing was not performed. PFT testing from October 2017 revealed FVC of 63 percent pre/73 percent post. In April 2018, additional PFT testing revealed FVC of 60 percent, indicating moderate restriction with asbestosis. At a January 2018 VA examination, the Veteran complained of shortness of breath which lead to hospitalizations for pneumonia, and steroid use for treatment. He reported that he became short of breath if walking more than 8 feet and that he used inhalers to help. He denied any ventilator use. PFT testing revealed was low and was later clarified by the February 2021 examiner that FVC was 59 percent pre/63 percent post, indicating moderate restriction. There were no cardiopulmonary complications, including cor pulmonale or pulmonary hypertension, and outpatient oxygen therapy was not indicated. Maximum exercise capacity testing was not conducted. At a February 2021 VA examination, diagnoses of asthma, COPD, and asbestosis were continued. The Veteran reported occasional hospitalization which the examiner clarified was due to reflux which sometimes aspirated into his lungs, causing pneumonia. The Veteran reported treatment twice daily with an inhaler. At that time, PFT testing was indicated to be conducted three days after receipt of a negative COVID-19 test; however, the results were not returned. However, the examiner opined that the Veteran's asbestosis continued to be characterized as moderate restriction as was previously seen. No indication of worsening was given. Exercise capacity testing was not performed, and there was no indication of a requirement for outpatient oxygen therapy, cor pulmonale, or pulmonary hypertension. The examiner opined that the Veteran's asbestosis had remained as moderately restrictive, and was best characterized by the FVC results. After consideration of the totality of the medical evidence, a 60 percent rating, but no more, is warranted since June 21, 2017. Specifically, the PFT testing, which has been opined by treatment providers to be the best characterization of his disability, was between 53 percent and 88 percent. However, notably, the most improved PFT results of 88 percent and higher were all obtained following bronchodilator use. Importantly, the use of medication cannot be considered when properly rating a disability, and pre-bronchodilator numbers must be considered. Specifically, for the entire period since June 21, 2017, asbestosis has been noted by the February 2021 VA examiner to remain largely static with moderate restriction. Thus, with FVC results of 53 percent, 63 percent, 60 percent, and 59 percent with pre-bronchodilator results, a 60 percent rating is warranted for this time period. However, the medical evidence does not support a 100 percent rating. Specifically, at no point did the Veteran's FVC fall below 50 percent, DLCO fall below 40 percent, and there was no indication of cardiorespiratory limitation, cor pulmonale, pulmonary hypertension, or a requirement of outpatient oxygen therapy as those have specifically been found to not be present. While the Veteran reported frequent hospitalizations for pneumonia, the February 2021 VA examiner opined that it was largely due to pneumonia as a result of reflux and aspiration into his lungs. Thus, it has not been related to a need for oxygen therapy which would warrant a higher rating. The Board has also considered the Veteran's lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's asbestosis has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, a rating of 60 percent, but not higher, is granted since June 21, 2017. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.