Citation Nr: 18132218
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 17-52 316
DATE:	September 6, 2018
ORDER
The reduction in the rating for the Veteran’s asbestos related pleural plaques was not proper.
A 60 percent rating for asbestos related pleural plaques is granted.
FINDINGS OF FACT
1. A March 2017 rating decision reduced the evaluation for the Veteran’s asbestos related pleural plaques from 10 percent to noncompensable effective June 1, 2017, after meeting all due process requirements in executing such a reduction.
2. The Veteran’s asbestos related pleural plaques did not show actual improvement under the normal circumstances of life and work.
3. The Veteran’s asbestos related pleural plaques are productive of pre-bronchodilator Forced Vital Capacity (FVC) of 50.6 percent predicted.
CONCLUSIONS OF LAW
1. The reduction in the rating for the Veteran’s asbestos related pleural plaques from 10 percent to noncompensable was not proper.  38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.105, 3.344, 4.97 Diagnostic Code (DC) 6833. 
2. Throughout the appeal period, the criteria for a 60 percent evaluation for asbestos related pleural plaques have been met.  38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. § 3.102, 4.97 DC 6833.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Navy from July 1958 to July 1961.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran presented sworn testimony at a hearing before the undersigned in July 2018.  
1. The reduction in the rating for the Veteran’s asbestos related pleural plaques was not proper.
The Veteran contends that the reduction of his rating for asbestos related pleural plaques was improper as his condition has worsened.  See May and June 2017 notices of disagreement; October 2017 VA Form 9; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
In February 2016, the RO proposed to reduce the Veteran’s evaluation for asbestos related pleural plaques from 10 percent to noncompensable.  The reduction was accomplished in a March 2017 rating decision, and made effective June 1, 2017.  The RO complied with the procedural safeguards regarding the manner which the Veteran was given notice of and the implementation of the reduction.  See 38 C.F.R. § 3.105. 
A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his ability to function under the ordinary conditions of life and work.  See Faust v. West, 13 Vet. App. 342, 349 (2000).  VA has the burden of establishing that the disability has improved.  A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue.  See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).  In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated).  Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992).
The Veteran’s asbestos related pleural plaques is evaluated under 38 C.F.R. § 4.97, DC 6899-6833.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and 99.  See 38 C.F.R. § 4.27.  The hyphenated diagnostic code in this case indicates that an unlisted disease under Diagnostic Code 6899 is the service-connected disorder, while the residual condition (to which the Veteran’s service-connected asbestos related pleural plaques is rated by analogy) is asbestosis, which is evaluated under 38 C.F.R. § 4.124a, DC 6833.
DC 6833 provides that a 10 percent disability rating will be awarded where Pulmonary Function Tests (PFTs) show Forced Vital Capacity (FVC) of 75- to 80-percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66- to 80-percent predicted.  A 30 percent disability rating is warranted when PFTs show FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted.  A 60 percent disability rating is warranted when PFTs show FVC of 50- to 64-percent predicted, or; DLCO 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 disability rating is warranted when PFTs show FVC less than 50-percent predicted, or; DLCO 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; requires outpatient oxygen therapy.   
Pursuant to 38 C.F.R. § 4.96(d)(5), when evaluating based on PFTs, post-bronchodilator results are used in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results.  In those cases, use the pre-bronchodilator values for rating purposes.  
The previously assigned 10 percent evaluation was awarded by an June 2014 rating decision and made effective October 6, 2011.  The June 2014 rating decision was based upon an April 2014 VA examination, which showed pre-bronchodilator FVC of 73.5 percent predicted, post-bronchodilator FVC of 79 percent predicted, and pre-bronchodilator DLCO 47 percent predicted. 
The reduction was based upon a December 2015 VA examination, which showed pre-bronchodilator FVC of 50.6 percent predicted, post-bronchodilator FVC of 49.9 percent predicted, and pre-bronchodilator DLCO 45.1 percent predicted.  The examiner determined that the Veteran’s non-service connected sleep apnea and chronic obstructive pulmonary disease (COPD) were predominantly responsible for the limitation in pulmonary function.  The December 2015 VA examiner also provided a February 2016 opinion which noted that an inhaler is used for the treatment of COPD and not for asbestos related pleural plaques.
However, the December 2015 VA examiner did not provide rationale as to why she believed that the Veteran’s non-service connected sleep apnea and COPD were predominantly responsible for the limitation in pulmonary function, rather than asbestos related pleural plaques.  The evidence continues to show a diagnosis of asbestos related pleural plaques.  See March 2016 and March 2017 letters from Dr. Scoopo.  VA treatment records note that the Veteran’s COPD is secondary to asbestosis.  Where the effects of service-connected disabilities and non-service-connected disabilities cannot be distinguished, they will all be attributed to the service-connected disabilities.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  
Further, an April 2015 private treatment record shows FVC 59 percent and DLCO 46 percent and a March 2016 private treatment record shows pre-bronchodilator FVC 61 percent predicted.  Accordingly, the Board finds that the weight of the evidence does not establish sustained improvement in the Veteran’s asbestos related pleural plaques under the ordinary conditions of life and work.  As such, the reduction was not proper.
2. Entitlement to a 60 percent rating for asbestos related pleural plaques is granted.
The Veteran filed his claim for an increased rating for asbestos related pleural plaques on October 22, 2015.  See October 2015 Application for Disability Compensation and Related Compensation Benefits.  He contends that his condition has worsened.  See May and June 2017 notices of disagreement; October 2017 VA Form 9; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations.  38 C.F.R. § 4.1.  
Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  
Although the evaluation of a service-connected disability requires a review of a veteran’s medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability.  VA is directed to review the recorded history of a disability in order to make a more accurate evaluation; however, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  VA has a duty to consider the possibility of assigning staged ratings in all claims for increase.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  
As noted above, DC 6833 provides that a 10 percent disability rating will be awarded where Pulmonary Function Tests (PFTs) show Forced Vital Capacity (FVC) of 75- to 80-percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66- to 80-percent predicted.  A 30 percent disability rating is warranted when PFTs show FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted.  A 60 percent disability rating is warranted when PFTs show FVC of 50- to 64-percent predicted, or; DLCO 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 disability rating is warranted when PFTs show FVC less than 50-percent predicted, or; DLCO 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; requires outpatient oxygen therapy.   
Pursuant to 38 C.F.R. § 4.96(d)(5), when evaluating based on PFTs, post-bronchodilator results are used in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results.  In those cases, use the pre-bronchodilator values for rating purposes.  
The December 2015 VA examination showed pre-bronchodilator FVC of 50.6 percent predicted, post-bronchodilator FVC of 49.9 percent predicted, and pre-bronchodilator DLCO 45.1 percent predicted.  The examiner determined that the FVC percent predicted most accurately reflects the Veteran’s level of disability.  Further, an April 2015 private treatment record shows FVC 59 percent and DLCO 46 percent and a March 2016 private treatment record shows pre-bronchodilator FVC 61 percent predicted.  Accordingly, the Board finds that a 60 percent rating is warranted for asbestos related pleural plaques throughout the appeal period pursuant to DC 6833.  A rating in excess of 60 percent is not warranted as there is no evidence of FVC less than 50-percent predicted when using post-bronchodilator results, or using pre-bronchodilator results as required under 38 C.F.R. § 4.96(d)(5), or; DLCO 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; requires outpatient oxygen therapy.   

 
M. HYLAND
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Samuelson, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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