ASBESTOSIS

Summary

The veteran, who served from January 1965 to May 1969, appeals the denial of an initial compensable disability rating for asbestosis prior to December 23, 2018, and the grant of a 30 percent rating for asbestosis from that date forward. The Board found that prior to December 23, 2018, the veteran's asbestosis did not meet the criteria for a compensable rating, as pulmonary function tests showed FVC and DLCO results above the thresholds required for any rating. The Board noted that the veteran failed to report for a scheduled VA examination in January 2022 and subsequently indicated he would not attend any further examinations, which the Board considered substantial compliance with prior remand orders. Based on the available evidence, including a December 2018 VA examination report with an addendum opinion, the Board determined that the veteran's asbestosis met the criteria for a 30 percent disability rating from December 23, 2018, due to a DLCO of 61-75 percent predicted. The Board found that a higher rating was not warranted as the criteria for 60 or 100 percent were not met, and no evidence of cor pulmonale, pulmonary hypertension, or need for oxygen therapy was present. The appeal for an initial compensable rating prior to December 23, 2018, was denied, while the appeal for a 30 percent rating from December 23, 2018, was granted.

Rationale

Prior to Dec 23, 2018, FVC was no worse than 83% predicted.; Prior to Dec 23, 2018, DLCO was never shown to be 80% or less predicted.; No evidence of maximum exercise capacity limitation or cardiorespiratory issues.

Full Decision Text

Citation Nr: 22048857
Decision Date: 08/26/22	Archive Date: 08/26/22

DOCKET NO. 15-15 982
DATE: August 26, 2022

ORDER

Entitlement to an initial compensable disability rating for asbestosis prior to December 23, 2018 is denied.

Entitlement to a 30 percent disability rating, but no higher, for asbestosis is granted from December 23, 2018,  subject to the payment of monetary benefits. 

FINDINGS OF FACT

1. Prior to December 23, 2018 the Veteran's service-connected asbestosis was manifested by a Forced Vital Capacity (FVC) of no worse than 83 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 December 23, 2018 the Veteran's asbestosis was manifested by (DLCO (SB)) of 61-75 percent predicted.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial compensable disability rating for asbestosis have not been met prior to December 23, 2018. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6833.

2. The criteria for a 30 percent disability rating, but no higher, for asbestosis from December 23, 2018 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6833.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1965 to May 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

This case was previously remanded by the Board in September 2017, March 2019, and June 2021.

The Board acknowledges that no new VA examinations have been provided to the Veteran since the prior Board remand. In August 2021 VA telephoned Veteran, and he indicated he would report for a VA examination. The Veteran failed to report to a scheduled January 2022 VA examination.

In April 2022, the Veteran told a VA representative via telephone that he would not attend any scheduled asbestosis examination. Veteran was informed that VA will make a decision based on evidence of record.

As VA has offered the Veteran new examinations, and the Veteran declined, the Board finds that substantial compliance with the prior remand has been accomplished. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the Veteran's claim with the available evidence. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised.

The Veteran's disability is rated as noncompensable pursuant to Diagnostic Code 6833 for asbestosis. This code is rated under the general rating formula for interstitial lung disease. The general rating formula provides for a 10 percent disability rating where the evidence shows FVC of 75 to 80 percent predicted; or DLCO (SB) of 66 to 80 percent predicted. A 30 percent disability rating is warranted with FVC of 65 to 74 percent; or a DLCO (SB) of 56 to 65 percent predicted. A 60 percent evaluation requires 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
compensable pursuant to Diagnostic Code 6833 for asbestosis. This code is rated under the general rating formula for interstitial lung disease. The general rating formula provides for a 10 percent disability rating where the evidence shows FVC of 75 to 80 percent predicted; or DLCO (SB) of 66 to 80 percent predicted. A 30 percent disability rating is warranted with FVC of 65 to 74 percent; or a DLCO (SB) of 56 to 65 percent predicted. A 60 percent evaluation requires 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. A 100 percent evaluation requires demonstrated evidence of an FVC of less than 50 percent of predicted value; or DLCO (SB) of less than 40 percent of predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiac or respiratory limitation; or cor pulmonale (right heart failure) or pulmonary hypertension or requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6833.

Note (5) further provides that when evaluating based on pulmonary function tests, the post-bronchodilator results must be used in applying the evaluation criteria unless the post-bronchodilator results are poorer than the pre-bronchodilator results. In that case, the General Rating formula mandates use of the pre-bronchodilator results for rating purposes. 38 C.F.R. § 4.96, Note (5).

Where there is a disparity between the results of the various pulmonary function test results, the test result that an examiner states most accurately reflects the claimant's level of disability is to be used. 38 C.F.R. § 4.96 (d)(6).

The Board acknowledges the private treatment records submitted during the course of the claim, including the June 2010 PFT report. However, that evaluation was not performed during the appeal period.

A November 2011 VA respiratory conditions examination report shows the examiner noted that the asbestosis did not require the use of oral or parenteral corticosteroid medications. Inhaled medications, oral bronchodilators, and antibiotics were not required. The examiner noted that oxygen therapy was not required. 

Pre-bronchodilator PFT results showed FEV-1 was 84 percent predicted and FVC was 91 percent predicted, FEV-1/FVC was 92 percent predicted, and DLCO was 95 percent predicted. Post-bronchodilator PFT testing showed FVC was 91 percent predicted, FEV-1 was 99 percent predicted, and FEV-1/FVC was 74 percent predicted. The examiner noted that FEV-1/FVC was the test result that most accurately reflected the Veteran's level of disability. The examiner noted that the Veteran had multiple respiratory conditions, including asbestosis and chronic obstructive pulmonary disease (COPD). Exercise capacity testing was not performed.

A June 2015 VA respiratory conditions examination report shows the examiner noted that the asbestosis did not require the use of oral or parenteral corticosteroid medications. Inhaled medications, oral bronchodilators, and antibiotics were not required. The examiner noted that oxygen therapy was not required. The Veteran was scheduled for pulmonary function testing, but the procedure was canceled by the Veteran.

A December 2018 VA respiratory conditions examination report shows the examiner noted that the asbestosis did not require the use of oral or parenteral corticosteroid medications. Inhaled medications, oral bronchodilators, and antibiotics were not required. The examiner noted that oxygen therapy was not required.

Pre-bronchodilator PFT results showed FEV-1 was 95 percent predicted and FVC was 83 percent predicted, FEV-1/FVC was 112 percent predicted, and DLCO was 94 percent predicted. Post-bronchodilator testing was not completed. The examiner noted that FVC predicted was the test result that most accurately reflected the Veteran's level of disability secondary to asbestosis. The examiner noted that the Veteran had multiple respiratory conditions, including asbestosis and chronic obstructive pulmonary disease (COPD). COPD was the condition predominantly responsible for the limitation of pulmonary function. Exercise capacity testing was not performed.

An addendum opinion to the December 2018 VA examination was added on December 26, 2018. The addendum opinion appears to be commenting on pulmonary function testing conducted on December 23, 2018. The report showed a DLCO of 61-75 percent predicted. The examiner stated that they now believe the decreased DL
ilator testing was not completed. The examiner noted that FVC predicted was the test result that most accurately reflected the Veteran's level of disability secondary to asbestosis. The examiner noted that the Veteran had multiple respiratory conditions, including asbestosis and chronic obstructive pulmonary disease (COPD). COPD was the condition predominantly responsible for the limitation of pulmonary function. Exercise capacity testing was not performed.

An addendum opinion to the December 2018 VA examination was added on December 26, 2018. The addendum opinion appears to be commenting on pulmonary function testing conducted on December 23, 2018. The report showed a DLCO of 61-75 percent predicted. The examiner stated that they now believe the decreased DLCO is the best indicator of the severity of the Veteran's condition.

The December 23, 2018 report shows differential diagnosis includes but is not limited to: Low DLCO with normal spirometry: Chronic pulmonary emboli, congestive heart failure, connective tissue disease with pulmonary involvement, dermatomyositis/polymyositis, inflammatory bowel disease, interstitial lung disease (early), primary pulmonary hypertension, rheumatoid arthritis, systemic lupus erythematosus, systemic sclerosis, Wegener granulomatosis (also called granulomatosis with polyangiitis).

Based upon the December 23, 2018 VA report, the Board finds that the Veteran's asbestosis meets the criteria for a 30 percent disability rating but no higher under Diagnostic Code 6833 from December 23, 2018. Here, the December 23, 2018 report shows that the Veteran's DLCO (SB) was 61-75 percent predicted which meets the criteria for a rating of 30 percent disability rating under Diagnostic Code 6833. Although the December 23, 2018 report provides a differential diagnosis which includes pulmonary hypertension, a differential diagnosis means that there is more than one possibility for someone's diagnosis. A diagnosis of pulmonary hypertension is not shown. 

A disability rating in excess of 30 percent from December 23, 2018 is not warranted for the service-connected asbestosis, as at no time was the Veteran's 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 shown. Cor pulmonale (right heart failure), or right ventricular hypertrophy, pulmonary hypertension, or use of outpatient oxygen therapy have not been shown.

A compensable disability rating prior to December 23, 2018 is not warranted. Prior to December 23, 2018 the evidence does not show an FVC of 80 percent or less predicted or DLCO (SB) of 80 percent or less predicted. The evidence also does not show that the Veteran had a maximum exercise capacity of less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation. Cor pulmonale (right heart failure), or right ventricular hypertrophy, pulmonary hypertension, or use of outpatient oxygen therapy have not been shown. Therefore, a compensable disability rating for the Veteran's asbestosis is not warranted prior to December 23, 2018.

For the foregoing reasons, the Board finds that a 30 percent disability rating, but no higher, is warranted for the Veteran's service-connected asbestosis from December 23, 2018. To this extent, the appeal is granted.

 

 

Carole R. Kammel

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. St. Laurent, 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.