Citation Nr: 21029524 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-63 109 DATE: May 13, 2021 ORDER Entitlement to an initial compensable rating for service-connected asbestosis is denied. REMANDED Entitlement to an initial compensable rating prior to November 15, 2018, and an initial rating in excess of 10 percent from November 15, 2018, for service-connected bilateral hearing loss is remanded. Entitlement to an effective date earlier than November 12, 2014, for the grant of service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran's service-connected asbestosis has been manifested by a post-bronchodilator/pre-bronchodilator FVC (forced vital capacity) higher than 80 percent of predicted value, and by a DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) higher than 80 percent of predicted value; maximum exercise capacity of 15 ml/kg to 20 ml/kg or less in oxygen consumption with cardiorespiratory limitation, or cor pulmonale or pulmonary hypertension, or the Veteran requiring outpatient oxygen therapy have not been shown. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for service-connected asbestosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.96, 4.97, Diagnostic Code 6833. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from January 1970 to March 1971. This appeal comes to the Board of Veterans' Appeals from June 2015 and December 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge for the issue regarding an increased rating for asbestosis. A transcript of the hearing is of record. In August 2019, the Board remanded the issue of an increased rating and earlier effective date for bilateral hearing loss for the issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). Also, the Board remanded the issue of an increased rating for asbestosis for a new VA examination. All remand directives were complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In April 2020, the RO issued an SOC for the issue of an increased rating and earlier effective date for bilateral hearing loss. The Veteran perfected his appeal by filing a VA Form 9 in May 2020. He did not request a hearing before the Board. 1. Entitlement to an initial compensable rating for service-connected asbestosis. 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. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Evidence to be considered in an appeal from an initial disability rating is not limited to current severity but will include the entire period of the disorder. Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Currently, the Veteran's service-connected asbestosis is rated at 0 percent under 38 C.F.R. § 4.97, Diagnostic Code 6833. The Board finds that a rating in excess of 0 percent is not warranted. Under Diagnostic Code 6833, asbestosis is to be rated under the General Rating Formula for Interstitial Lung Disease (General Rating Formula). The General Rating Formula provides as follows: A 100 percent evaluation is assigned for FVC less than 50 percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (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 or pulmonary hypertension, or; requires outpatient oxygen therapy. A 60 percent evaluation is assigned 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 30 percent evaluation is assigned for FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted. A 10 percent evaluation is assigned for FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66- to 80-percent predicted. 38 C.F.R. § 4.97, Diagnostic Codes 6825-6833. A maximum exercise capacity test need not be conducted in any case. See 38 C.F.R. § 4.96 (d)(1) (providing that regarding certain diagnostic codes pertaining to respiratory conditions, including Diagnostic Code 6833, if a maximum exercise stress test is not of record, the disability is to be evaluated based on alternative criteria). Post-bronchodilator pulmonary function test (PFT) results are to be used when applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, the pre-bronchodilator values are to be used for rating purposes. 38 C.F.R. § 4.96 (d)(5). When there is a disparity between the results of different PFT's (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is to be used. 38 C.F.R. § 4.96 (d)(6). The Veteran was afforded VA examinations for his service-connected asbestosis in May 2015, November 2018, and on February 10, 2021 and February 22, 2021. The VA examinations in May 2015, November 2018, and on February 10, 2021 are adequate for adjudication purposes because the examiners reviewed the Veteran's pertinent medical history, documented his current complaints, and rendered findings and diagnoses consistent with the remainder of the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board accords significant probative weight to these VA examinations. Furthermore, the February 10, 2021 VA examiner addressed the Veteran's concerns about his November 2018 being inadequate because he was given a breathing treatment. The examiner explained that it was mandatory as part of the PFT that the Veteran got breathing capacities before and after administering albuterol. Though a PFT was not performed at the later February 2021 VA examination on account of the COVID-19 pandemic, a remand is not warranted for a new VA examination because the Board finds the February 10, 2021 examination to accurately reflect the Veteran's current disability picture. In May 2015, the Veteran was afforded a VA examination for his respiratory conditions. The Veteran was diagnosed with asbestosis and reported experiencing frequent coughing and shortness of breath. His asbestosis did not require him to use oral or parenteral corticosteroid medications. The Veteran did not have to use inhaled medications, oral bronchodilators, antibiotics, or attend outpatient therapy for his respiratory condition. During his May 2015 VA examination, the Veteran had a PFT performed. Pre-bronchodilator results were as follows: FEV-1 at 108 percent predicted, FVC at 94 percent predicted, FEV-1/FVC at 113 percent, and DLCO at 115 percent predicted. Post-bronchodilator results were as follows: FEV-1 at 111 percent predicted, FVC at 93 percent predicted, and FEV-1/FVC at 118 percent. The VA examiner noted that the FEV-1/FVC test result most accurately reflected the Veteran's current pulmonary function. The Veteran did not perform an exercise capacity test. The VA examiner concluded that the Veteran's asbestosis did not impact his ability to work. In November 2018, the Veteran was afforded a VA examination for respiratory conditions. He was diagnosed with asbestosis. The Veteran's current symptoms included shortness of breath and lightheadedness on minimal exertion. The Veteran did not require the use of oral or parenteral corticosteroid medications. He also was not required to use inhaled medication, oral bronchodilators, antibiotics, or attend outpatient oxygen therapy for his respiratory condition. The VA examiner noted that the Veteran had a chest x-ray, which revealed calcified pleural-based plaque, which might be from prior asbestosis exposure or exudative pleural effusions. During the November 2018 VA examination, the Veteran had a PFT performed. Pre-bronchodilator results were as follows: FVC at 86 percent predicted, FEV-1 at 94 percent predicted, FEV-1/FVC at 68 percent predicted, and DLCO at 123 percent predicted. Post-bronchodilator results were as follows: FVC at 95 percent predicted, FEV-1 at 117 percent predicted, and FEV-1/FVC at 83 percent predicted. The VA examiner noted that the FEV-1/FVC percent most accurately reflected the Veteran's level of disability. An exercise capacity test had not been performed. The Veteran's respiratory condition impacted his ability to work in that it caused shortness of breath and lightheadedness on minimal exertion. On February 10, 2021, the Veteran was afforded a VA examination for respiratory conditions. The Veteran was diagnosed with asbestosis. Currently, the Veteran's symptoms included shortness of breath, fatigue, and dizziness with exertional activities, such as walking for longer than 5 minutes. The Veteran's respiratory condition did not require the use of oral or parental corticosteroid medications. He did not have to use inhaled medications, oral bronchodilators, antibiotics, or attend outpatient oxygen therapy. During the February 10, 2021 VA examination, the Veteran had a PFT performed. Pre-bronchodilator results were as follows: FVC at 84 percent predicted, FEV-1 at 64 percent predicted, and FEV-1/FVC at 76 percent predicted. Post-bronchodilator results were as follows: FVC at 80 percent predicted, FEV-1 at 61 percent predicted, and FEV-1/FVC at 77 percent predicted. The VA examiner noted that the FVC percent predicted most accurately reflected the Veteran's level of disability. DLCO testing was not completed because it was not indicated in the Veteran's particular case. The Veteran did not have multiple respiratory conditions. Exercising capacity testing was not performed. The VA examiner noted that the Veteran's respiratory condition impacted his ability to work. The VA examiner opined that the Veteran would have difficulty performing light activities, such as walking for longer than 5 minutes due to the shortness of breath, fatigue, and dizziness. He would need to be allowed frequent breaks to assess the ability to continue. The VA examiner noted that that Veteran stated that his November 2018 examination was inadequate because he was given a breathing treatment. However, the VA examiner stated that it was mandatory as part of the PFT that the Veteran got breathing capacities before and after administering albuterol. This was simply the way the test was performed, which was why there were values for pre and post testing. The testing aimed to measure if the abnormalities found on the baseline breathing test were reversed with administration for a bronchodilator. Since VA ordered a PFT, the same examination would be administered and was adequate based on PFT requirements and standards. On February 22, 2021, the Veteran was afforded another VA examination for his asbestosis. The Veteran reported that he was unable to walk for extended periods of time due to shortness of breath and dizziness. He had increased episodes of coughing. He had fatigue and weakness with activity and exertion. The Veteran had frequent episodes of bronchitis and pneumonia for the past few years. The last episode of bronchitis was two weeks ago, he had antibiotics and cough syrup. Currently, the Veteran reported no medical treatment/medications. His condition did not require the use of oral or parenteral corticosteroid medications. He was not required to use inhaled medications, oral bronchodilators, antibiotics, or have outpatient oxygen therapy. However, a PFT had not been performed because of the COVID-19 pandemic emergency. It was medically contraindicated to perform a PFT. Exercise capacity testing had not been performed. The VA examiner reported that the Veteran's asbestosis impacted his ability to work. He lost 2 to 4 weeks from his job in the last 12 months. The Veteran was limited in his ability to be physically active. He was unable to engage in prolonged walking, repeated lifting or any activity that caused significantly increased respiratory demand, working in temperature extremes, and working around allergens and strong smells at any time given the frequent episodes of shortness of breath. After a review of the medical and lay evidence of record, the Board finds that a rating in excess of 0 percent is not warranted for the Veteran's service-connected asbestosis. The Veteran's symptoms include shortness of breath, fatigue, and dizziness with exertional activities, such as walking for longer than 5 minutes. The Veteran had frequent episodes of bronchitis and pneumonia for the past few years. On his May 2015 VA examination, the Veteran's pre-bronchodilator results were FEV-1 at 108 percent predicted, FVC at 94 percent predicted, FEV-1/FVC at 113 percent, and DLCO at 115 percent predicted. Post-bronchodilator results were FEV-1 at 111 percent predicted, FVC at 93 percent predicted, and FEV-1/FVC at 118 percent. The VA examiner noted that the FEV-1/FVC test result most accurately reflected the Veteran's current pulmonary function. On his November 2018 VA examination, the Veteran's pre-bronchodilator results were FVC at 86 percent predicted, FEV-1 at 94 percent predicted, FEV-1/FVC at 68 percent predicted, and DLCO at 123 percent predicted. Post-bronchodilator results were FVC at 95 percent predicted, FEV-1 at 117 percent predicted, and FEV-1/FVC at 83 percent predicted. The VA examiner noted that the FEV-1/FVC percent most accurately reflected the Veteran's level of disability. On his February 10, 2021 VA examination, the Veteran's pre-bronchodilator results were FVC at 84 percent predicted, FEV-1 at 64 percent predicted, and FEV-1/FVC at 76 percent predicted. Post-bronchodilator results were FVC at 80 percent predicted, FEV-1 at 61 percent predicted, and FEV-1/FVC at 77 percent predicted. The VA examiner noted that the FVC percent predicted most accurately reflected the Veteran's level of disability. In determining the most appropriate rating, the Board used the test result that the examiner stated most accurately reflected the level of disability because the level of evaluation would differ depending on which test result was used. See 38 C.F.R. § 4.96(d)(6). Additionally, the Board used the post-bronchodilator pulmonary function results, unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the Board used the pre-bronchodilator results. See 38 C.F.R. § 4.96(d)(5). Thus, the findings do not show FVC at 80 percent or less predicted or DLCO at 80 percent or less predicted. Additionally, there are no findings in the record of maximum exercise capacity of 15 ml/kg to 20 ml/kg or less in oxygen consumption with cardiorespiratory limitation, or cor pulmonale or pulmonary hypertension, or the Veteran requiring outpatient oxygen therapy. The Board has considered the Veteran's lay statements in support of his claim for an increased rating for his service-connected asbestosis. However, the Board concludes that the medical findings are of greater probative value than the Veteran's allegations regarding the severity of his condition. The nature and extent of the Veteran's disability have been addressed during the appeal period, and the medical findings directly address the criteria under which this disability is evaluated. For the foregoing reasons, there is no basis on which the Veteran can attain the next higher disability rating of 10 percent, as the preponderance of the evidence is against the claim. Therefore, the provisions of 38 U.S.C. § 5107(b) and 38 C.F.R. § 4.3 regarding reasonable doubt are not applicable and the claim must be denied. REASONS FOR REMAND 1. Entitlement to an initial compensable rating prior to November 15, 2018, and an initial rating in excess of 10 percent from November 15, 2018, for service-connected bilateral hearing loss is remanded. The Veteran was last afforded a VA examination for his bilateral hearing loss in November 2018. On his January 2019 notice of disagreement (NOD), the Veteran complained that he could not hear anything without his hearing aids. The Board finds this to be evidence that the Veteran's hearing has worsened since his last VA examination. Therefore, on remand, the Veteran should be afforded a new VA examination to determine the nature and severity of his bilateral hearing loss. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Also, VA treatment records show that the Veteran is receiving outpatient treatment through Community Care for his bilateral hearing loss. However, these treatment records do not appear to be of record. A remand is warranted for these medical records to be obtained. 2. Entitlement to an effective date earlier than November 12, 2014, for the grant of service connection for bilateral hearing loss is remanded. The Board finds that the earlier effective date claim is intertwined with the increased rating claim for bilateral hearing loss currently being remanded. Therefore, this issue should also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain VA outpatient treatment records from Community Care with regard to the Veteran's treatment for his bilateral hearing loss. Only if necessary, a VA Form 21-4142, Authorization for Release of Information, should be completed and returned by the Veteran to assist in obtaining the Veteran's records from Community Care. 2. After the above development has been completed, schedule the Veteran for a VA examination to determine the nature and severity of his service-connected bilateral hearing loss. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected bilateral hearing loss. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the applicable criteria, 38 C.F.R. § 4.85. 3. After the above development has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to an effective date earlier than November 12, 2014, for the grant of service connection for bilateral hearing loss. If the issues on appeal remain denied, the RO should issue a supplemental statement of the case (SSOC) and give the Veteran and his representative an opportunity to respond. (Continued on next page) If necessary, return the case to the Board for further appellate review. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.