Citation Nr: 22063823 Decision Date: 11/15/22 Archive Date: 11/15/22 DOCKET NO. 19-20 148 DATE: November 15, 2022 ORDER An effective date prior to May 31, 2017, for the award of a 100 percent initial rating for asbestosis is dismissed. An initial disability rating in excess of 10 percent for asbestosis prior to May 31, 2017, is denied. FINDINGS OF FACT 1. The Veteran's claim for an effective date prior to May 31, 2017, for the award of a 100 percent initial disability rating for asbestosis, is encompassed by his pending claim for an initial disability rating greater than 10 percent prior to May 31, 2017, for his service-connected asbestosis; therefore, there is no remaining case or controversy in the matter of the effective date for the award of a100 percent initial disability rating for asbestosis. 2. Prior to May 31, 2017, the Veteran's pulmonary function testing (PFT) results reveal that his diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) was 90 percent predicted. CONCLUSIONS OF LAW 1. The claim for entitlement to an effective date prior to May 31, 2017, for the award of a 100 percent initial disability rating for asbestosis is dismissed as moot. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5); 38 C.F.R. §§ 19.4, 20.101, 20.202, 20.2014. 2. The criteria for an initial disability rating in excess of 10 percent for asbestosis prior to May 31, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§3.321, 4.3, 4.7, 4.14, 4.96, 4.97, Diagnostic Code (DC) 6833. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1956 to February 1960. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for asbestosis with an award of 10 percent assigned from August 25, 2009, and an increased rating of 100 percent assigned from May 31, 2017. While the Veteran does not dispute the award of 100 percent assigned from May 31, 2017, he contends a rating in excess of 10 percent is warranted prior to this date. In an August 2019 decision, the Board dismissed the claim of entitlement to an effective date prior to May 31, 2017, for the award of a 100 percent initial rating for asbestosis; and denied the claim of entitlement to an initial disability rating in excess of 10 percent for asbestosis prior to May 31, 2017. In September 2019, the Board vacated its own August 2019 decision, finding that the Veteran had been denied due process of law, as the Board did not address a 90-day extension request from the Veteran's attorney prior to dismissing and denying the Veteran's claims. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. (The August 16, 2019, request for extension was not associated with the claims file at the time of the August 26, 2019, Board decision. However, the mail was in the constructive possession of VA.) The Board granted the Veteran 90 days from the September 2019 Order to Vacate to submit additional evidence and/or argument. In December 2019, the Veteran and his attorney submitted additional argument in support of his appeal. Earlier Effective Date The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. The Veteran's service-connected asbestosis is currently assigned "staged" initial disability ratings of 10 percent prior to May 31, 2017, and 100 percent from that date. Although the Veteran indicated on his February 2019 Notice of Disagreement that he was seeking an effective date prior to May 31, 2017, for the award of a 100 percent initial disability rating for asbestosis, such a claim is already encompassed by his appeal seeking an initial disability rating in excess of 10 percent prior to May 31, 2017. Notably, in this instance, it is more favorable for the Veteran to pursue an increased initial disability claim versus an earlier effective date claim; therefore, he is not prejudiced by the characterization of his claim as one for a higher initial disability "staged" rating prior to May 31, 2017. Based on the foregoing, the Board finds that there is no remaining case or controversy pertaining to the Veteran's claim for entitlement to an effective date prior to May 31, 2017, for the award of a 100 percent initial disability rating for asbestosis. Accordingly, the appeal is dismissed as moot. Increased Initial Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings for asbestosis are rated under the General Rating Formula for Interstitial Lung Disease. 38 U.S.C. § 1155, 38 C.F.R. § 4.97 (DC 6825-6833). Under this formula, a 100 percent disability rating is assigned where the evidence shows Forced Vital Capacity (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 an 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 an 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 an FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66- to 80-percent predicted. Id. VA regulations require that ratings be based on post-bronchodilator results when using the results of a PFT to evaluate a disability unless the post-bronchodilator results are poorer than the pre-bronchodilator results. In those cases, the pre-bronchodilator values are used for rating purposes. 38 U.S.C. § 1155; 38 C.F.R. § 4.96(d)(4), (5). Post-bronchodilator studies are required when PFTs 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 there is a disparity between the results of different PFTs (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 used. 38 C.F.R. § 4.96(d)(6). Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected rating, and the rating of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of a matter. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000) (noting VA must review the entire record, but does not have to discuss each piece of evidence). The Veteran's asbestosis is currently rated 10 percent disabling for the period from August 25, 2009, to May 31, 2017, when it was increased to 100 percent disabling. The Veteran and his representative contend that PFT results generally, and the FVC results in particular, from a February 2014 VA examination demonstrate that a higher rating is warranted from February 20, 2014, to May 31, 2017. See July 2019 VA Form 9, December 2019 Appellate Brief. Moreover, the Veteran's representative maintains that asbestosis is a progressive disease, and the Veteran's disability had progressed to symptoms including shortness of breath at rest as early as February 2016, at which point a 100 percent rating should have been assigned. See December 2019 Appellate Brief. The Veteran maintains he has experienced episodes of shortness of breath since service, which has steadily gotten worse over time. He reports that he has used a motorized cart to get up and down his (inclined) driveway since 2010. See December 2019 Affidavit. A review of the relevant evidence of record shows that on VA respiratory examination in 2014, the VA examiner diagnosed the Veteran with chronic obstructive pulmonary disease (COPD), chronic bronchitis, and asbestos related lung disease. A PFT was conducted, and pre-bronchodilator results demonstrated an FVC of 67 percent and a DLCO of 90 percent. There were no post-bronchodilator results, as the VA examiner found that the normal FEV1/FVC results indicated a post-bronchodilator test was not needed. The Veteran's respiratory conditions were noted to not require the use of oral or parental corticosteroid medications, inhaled medications, oral bronchodilators, or antibiotics. They also did not require outpatient oxygen therapy. After examining the Veteran, the VA examiner concluded that the DLCO test most accurately reflected the Veteran's level of disability and explained that the Veteran's nonservice-connected COPD was predominantly responsible for the limitation in FVC and FEV1, whereas asbestosis would affect DLCO predominantly and lung volume. Notably, symptoms of the Veteran's nonservice-connected COPD cannot be used to rate his service-connected asbestosis. See 38 C.F.R. § 4.14. The only other PFT conducted during the relevant period on appeal is from August 2010, which demonstrated FVC pre-bronchodilator results of 76 percent and post-bronchodilator results of 80 percent. These results are within the range contemplated by the criteria for a 10 percent rating for asbestosis. See August 2010 respiratory system VA examination report. The Board finds that the most probative evidence of record persuasively weighs against the claim of entitlement to a rating in excess of 10 percent for the period on appeal. While the PFT result from the February 2014 VA examination does indicate an FVC of 67-percent predicted, a result that would bring the Veteran's disability rating into the range for the next higher disability rating, the VA examiner specifically stated that the DLCO test most accurately reflected the Veteran's level of disability for asbestosis. The examiner also provided a well-reasoned explanation based on sound medical rationale for why the DLCO test was to be used to assess the disability level of the Veteran's asbestosis versus using the PFT results. No other examination or treatment record in the record provides any indication of an FVC result, DLCO result, or exercise capacity limitation that would qualify the Veteran for the next higher rating for asbestosis. As noted above, the Veteran's representative alleges the Veteran's respiratory disability was manifested by shortness of breath at rest (and therefore warranted a 100 percent rating) as early as February 2016. Notably, however, VA and private treatment records do not show this to be the case. A June 2014 VA primary care outpatient record note shows no cough or shortness of breath on respiratory examination. In February 2016, private treatment records show the Veteran was treated for an acute exacerbation of congestive heart failure. His symptoms at that time included shortness of breath. January 2017 and April 2017 letters from the Veteran's private physician state the Veteran had respiratory and heart disabilities with "occasional episodes" of shortness of breath and fatigue with exertion. Symptoms of the Veteran's nonservice-connected heart disability cannot be used to rate his respiratory disability. See 38 C.F.R. § 4.14. Moreover, the fact remains that ratings of respiratory disabilities involve the mechanical application of the rating criteria to the PFT findings, which in this case do not support the assignment of a higher rating. Therefore, as the most probative evidence of record persuasively weighs against a higher rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.