Citation Nr: 22014232 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 18-31 099 DATE: March 11, 2022 ORDER Entitlement to an initial rating in excess of 30 percent for interstitial lung disease (asbestosis), prior to November 15, 2021, is denied. FINDINGS OF FACT 1. Prior to November 15, 2021, the Veteran's interstitial lung disease (asbestosis) did not manifest in forced vital capacity (FVC) between 50 to 64 percent of predicted value, or worse; did not manifest in Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 40 to 55 percent predicted, or worse; and did not manifest in maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption, or worse, with cardiorespiratory limitation. 2. Prior to November 15, 2021, the Veteran's use of nighttime oxygen with his continuous positive airway pressure (CPAP) machine was for the treatment of obstructive sleep apnea with chronic hypoxic respiratory failure during sleep; this use of oxygen was not prescribed for or required for the treatment of his interstitial lung disease (asbestosis). CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 30 percent for interstitial lung disease (asbestosis), for the period prior to November 15, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6833. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1958 to January 1962. The matter is on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) regional office (RO), which granted service connection for asbestosis and awarded an initial rating of 30 percent. The Veteran timely appealed, seeking an increased rating. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge of the Board of Veterans' Appeals (Board) in January 2021. A transcript of that hearing has been associated with the claims file. The Board remanded the case in May 2021 for a new examination to determine the severity of the Veteran's interstitial lung disease (asbestosis). The Board finds there has been substantial compliance with its remand directive, as the requested development has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an initial rating in excess of 30 percent for interstitial lung disease (asbestosis), prior to November 15, 2021. The Veteran was awarded an initial rating of 30 percent disabling for his asbestosis, effective to the date of his claim, October 4, 2016. During the pendency of his appeal of the initial rating decision, a January 2022 VA rating decision increased his asbestosis rating to 100 percent, effective November 15, 2021. As this represents less than a full grant of the benefits sought on appeal, the case has returned to the Board. The question for the Board is whether the Veteran is entitled to a rating in excess of 30 percent from the date of the grant of service connection (October 4, 2016), to the date of the recent VA examination (November 15, 2021). Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson, 12 Vet. App. 119; Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Codes 6825 through 6833 are rated under the General Rating Formula for Interstitial Lung Disease. The interstitial lung diseases include Diagnostic Code (DC) 6825 (diffuse interstitial fibrosis, i.e., interstitial pneumonitis, fibrosing alveolitis), DC 6826 (desquamative interstitial pneumonitis), DC 6827 (pulmonary alveolar proteinosis), DC 6828 (eosinophilic granuloma of lung), DC 6829 (drug-induced pulmonary pneumonitis and fibrosis), DC 6830 (radiation-induced pulmonary pneumonitis and fibrosis), DC 6831 (hypersensitivity pneumonitis, i.e., extrinsic allergic alveolitis), DC 6832 (pneumoconiosis, i.e., silicosis, anthracosis, etc.), and DC 6833 (asbestosis). The Veteran has been diagnosed with asbestosis and is rated under DC 6833. The General Rating Formula for Interstitial Lung Disease provides that a Forced Vital Capacity (FVC) of 75 to 80 percent predicted value, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted, is rated 10 percent disabling. FVC of 65 to 74 percent predicted, or; DLCO (SB) of 56 to 65 percent predicted, is rated 30 percent disabling. 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, is rated 60 percent disabling. FVC less than 50 percent of predicted value, 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 (right heart failure) or pulmonary hypertension, or; requires outpatient oxygen therapy, is rated 100 percent disabling. 38 C.F.R. § 4.97. In connection with his initial claim for service connection, the Veteran was afforded a VA Respiratory Conditions (Other than Tuberculosis and Sleep Apnea) examination and a pulmonary function test in January 2017. He was diagnosed with interstitial lung disease, asbestosis. FVC was 65 percent of predicted. DLCO was not performed. The examiner indicated the Veteran's respiratory condition did not require outpatient oxygen therapy. At the January 2021 Board hearing, the Veteran testified that his asbestosis symptoms had worsened since his January 2017 VA examination. He testified he "sleep[s] with oxygen." See January 2021 Hearing Transcript. In a May 2021 remand, the Board directed a new VA examination to ascertain the current severity of the Veteran's asbestosis. Accordingly, the Veteran underwent another VA Respiratory Conditions (Other than Tuberculosis and Sleep Apnea) examination in November 2021, which consisted of a records review and a telephone interview with the Veteran. The VA examiner confirmed the Veteran's diagnosis of interstitial lung disease, asbestosis. The examiner noted the Veteran experienced shortness of breath, lack of energy, and was unable to perform yard work or other heavy physical activity, but could perform sedentary work. Spirometry results from testing conducted in November 2021 (and noted on the November 2021 VA examination) indicated the Veteran's FVC of 68 percent predicted. The VA examiner indicated the Veteran required outpatient oxygen therapy for his respiratory condition, then also marked the box "yes" as to whether the Veteran required "continuous oxygen therapy" (defined next to the question as being greater than 17 hours per day). Based on this finding that the Veteran required "outpatient oxygen therapy," the RO increased the Veteran's rating to 100 percent effective the date of the VA examination. After reviewing the probative evidence of record, the Board finds that an increased evaluation for asbestosis at any time prior to November 15, 2021 is not warranted. First, the criteria for a 60 percent evaluation under DC 6833 are not met prior to November 15, 2021. The Board has extensively reviewed the Veteran's available medical records. Spirometry testing as noted above has been commensurate with an evaluation of 30 percent disabling. The Veteran's FVC at both the January 2017 VA examination and in November 2021 fell within the criteria for a 30 percent rating. DLCO testing has not been conducted nor has maximum exercise capacity been evaluated. Therefore, based on the criteria of DC 6833, FVC is the test on which the Board will rely. The findings do not meet the criteria for a 60 percent evaluation. The Board further finds that the Veteran did not meet the criteria for a 100 percent rating prior to November 15, 2021. Again, the Board notes that the Veteran's FVC results are commensurate with the criteria for a 30 percent rating. Regarding whether the Veteran required outpatient oxygen therapy to treat his asbestosis prior to November 15, 2021, the Veteran's VA records reflect the use of oxygen associated with the treatment of his obstructive sleep apnea, a non-service-connected condition. No medical records indicate that the Veteran's asbestosis requires oxygen therapy; rather, the oxygen is associated with treatment of the Veteran's sleep apnea and is used at night with his CPAP machine. An October 2016 letter from the Veteran's private treating physician at Kaiser Permanente states that the Veteran is being treated for restrictive lung disease, asbestosis, and "obstructive sleep apnea with chronic hypoxic respiratory failure." This phrasing indicates that the hypoxia (i.e., low oxygen) is associated with the sleep apnea. Furthermore, the Veteran's VA medical records throughout the period on appeal similarly and repeatedly reflect the Veteran is on oxygen for treatment of sleep apnea at night. See, e.g., October 2018 medical record ("CPAP and oxygen supplies switched over to VA from Kaiser PCP... Veteran wears 2L oxygen bleed in with CPAP"); July 2019 medical records (noting, "obstructive sleep apnea. Is on CPAP with O2"; also noting Veteran "had a sleep study done at [Kaiser Permanente] over a year ago... has been on oxygen at night... will place home oxygen orders for nighttime use"; July 2021 medical record reflecting order of "oxygen adapter for O2 bleed in through PAP"). While it is possible the use of oxygen for treatment of sleep apnea may also improve the Veteran's management of his asbestosis symptoms, this is a medical conclusion that is not reached nor discussed in the medical records, and it would be improper for the Board to attempt to draw its own medical conclusion in that regard. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board cannot ascribe medical treatment for one condition as medical treatment for another, even if the latter condition could, if warranted, utilize the same type of treatment as the former. While it may be true that the Veteran "sleeps with oxygen" at night, the General Rating Formula for Interstitial Lung Disease assigns an evaluation of 100 percent if the diagnosis warranting an evaluation under that formula, itself, "requires outpatient oxygen therapy." Here, the evidence persuasively supports a finding that the Veteran's asbestosis did not require outpatient oxygen therapy prior to November 15, 2021. Accordingly, an evaluation of 100 percent is not warranted prior to November 15, 2021. In summary, the probative evidence of record persuasively supports a finding that the Veteran's asbestosis did not meet the criteria for a rating in excess of 30 percent prior to November 15, 2021. Therefore, there is no benefit of the doubt to resolve in the Veteran's favor and an increased initial rating in excess of 30 percent prior to November 15, 2021, is denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.