PNEUMOCONIOSIS, I.E., SILICOSIS, ANTHRACOSIS, ETC.

Summary

The Veteran, who served from July 1997 to December 1999 and again from December 2004 to May 2006, appeals the denial of a compensable rating for pneumoconiosis. The appeal was filed under the Appeals Modernization Act (AMA) Direct Review, limiting the evidence to that considered by the RO at the time of the May 2024 rating decision. The Board reviewed the evidence, including a March 2024 VA examination. The Veteran reported shortness of breath and coughing, but did not require medication or oxygen therapy. The VA examination showed a pre-bronchodilator FVC of 99 percent of predicted and post-bronchodilator FVC of 107 percent, with FEV-1 and FEV-1/FVC ratios also indicating normal lung function. The examiner noted that DLCO testing was not completed. The Board found that the Veteran's pneumoconiosis did not meet the criteria for a compensable rating at any point during the appeal period, as the FVC results consistently exceeded the thresholds required for any disability rating under Diagnostic Code 6832. The Board concluded that the probative evidence weighed against the claim, denying entitlement to a compensable rating for pneumoconiosis.

Rationale

FVC results consistently above 80 percent predicted; DLCO and exercise capacity testing not performed; Probative evidence weighed against a compensable rating

Full Decision Text

Citation Nr: A26039086
Decision Date: 04/27/26	Archive Date: 04/27/26

DOCKET NO. 250929-592967
DATE: April 27, 2026

ORDER

Entitlement to a compensable evaluation of pneumoconiosis is denied.

FINDING OF FACT

Throughout the period on appeal, the Veteran's pneumoconiosis did not manifest in forced vital capacity (FVC) of less than 80-percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 80-percent predicted.

CONCLUSION OF LAW 

The criteria for entitlement to a compensable rating for pneumoconiosis, for the period on appeal, 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) 6832.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1997 to December 1999 and from December 2004 to May 2006.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2024 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that was subject to an April 2025 higher level review.

The Veteran timely appealed this decision to the Board by filing a September 2025 Form 10182 and requesting the Appeals Modernization Act (AMA) Direct Review for a reevaluation of the evidence considered by the Agency of Original Jurisdiction (AOJ).  The AMA Direct Review does not allow submission of any additional evidence in support of an appeal.  38 C.F.R. § 20.301.  Therefore, the Board can only consider the evidence of record at the time of the May 2024 rating decision on appeal, which was subject to higher level review.  If evidence was received following the May 2024 rating decision, the Board did not consider it in this decision.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. § 3.2501.

1. Entitlement to a compensable evaluation of pneumoconiosis is denied.

The Veteran contends that a compensable rating for the period on appeal is warranted for his pneumoconiosis.

VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 3.321; see, generally, 38 C.F.R. Part IV.  The Board determines the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 C.F.R. § 4.10.

The degrees of disabilities are based on the average impairment of earning capacity and individual disabilities are assigned diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various percentage ratings for each disability and the criteria for specific ratings.  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14.  Where there is a question of which of two ratings should be applied, the higher rating will be assigned if the disability assessment more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Additionally, because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection.  See Fenderson, 12 Vet. App. at 126. 
 higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection.  See Fenderson, 12 Vet. App. at 126.  In increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In such claims, VA considers the level of disability for the period beginning one year prior to the claim for a higher rating.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400 (o)(2); Hart, 21 Vet. App. at 509.

When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, with the Veteran prevailing in either event, or whether the weight of the probative evidence is against the claim, in which case the claim is denied.  See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); (holding that a Veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

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 pneumoconiosis and is rated under DC 6832.

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.

Turning to the evidence of record, the Veteran was provided with a VA examination in March 2024.  He described frequent shortness of breath and coughing.  He utilized over the counter allergy medication.  The Veteran did not require the use of oral or parenteral corticosteroid medications.  He also did not require the use of inhaled medications, oral bronchodilators, antibiotics, or oxygen therapy.  The pre-bronchodilator PFT results were as follows: FVC was 99 percent of predicted, FEV-1 was 112 percent of predicted, and FEV-1/FVC was 
 100 percent disabling.  38 C.F.R. § 4.97.

Turning to the evidence of record, the Veteran was provided with a VA examination in March 2024.  He described frequent shortness of breath and coughing.  He utilized over the counter allergy medication.  The Veteran did not require the use of oral or parenteral corticosteroid medications.  He also did not require the use of inhaled medications, oral bronchodilators, antibiotics, or oxygen therapy.  The pre-bronchodilator PFT results were as follows: FVC was 99 percent of predicted, FEV-1 was 112 percent of predicted, and FEV-1/FVC was 113 percent.  The post- DLCO results were not provided.  The post-bronchodilator results were as follows: FVC was 107 percent of predicted, FEV-1 was 125 percent of predicted, and FEV-1/FVC was 117 percent.  The examiner found that the Veteran's FVC results most accurately showed his level of disability.  The examiner noted that DLCO testing had not been completed as spirometry testing had been performed rather than a pulmonary function test.  It was noted that the Veteran was rendered short of breath with little exertion, limiting his ability to stand, walk, climb, crouch, and crawl. 

After reviewing the probative evidence of record, the Board finds that a compensable rating for pneumoconiosis at any time during the period on appeal is not warranted.  At no point during the Veteran's VA examination or VA treatment records was there any indication that the Veteran had an FVC less than 80-percent predicted.  As previously noted DLCO and exercise testing was not performed.  The Board notes that post-bronchodilator results are to be utilized in applying the evaluation criteria in the Rating Schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results.  The pre-bronchodilator values are to be used for rating purposes in those instances.  38 C.F.R. § 4.96 (d)(5).  Here, the post-bronchodilator findings for FVC was 107 percent and did not meet the criteria for a compensable rating during the period on appeal.  There is no competent evidence showing contradictory findings.

In summary, the probative evidence of record goes against a finding that the Veteran's pneumoconiosis did not meet the criteria for a compensable rating.  Therefore, there is no benefit of the doubt to resolve in the Veteran's favor and a compensable rating throughout the appeal period is denied.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

 

 

H.M. WALKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	AK

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.