Citation Nr: 0815070 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 05-41 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for degenerative arthritis of the lumbar spine. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for respiratory condition, to include asbestosis. 4. Entitlement to a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran served on active duty from July 1949 to November 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri that denied the veteran's claims of entitlement to service connection for asbestosis, degenerative arthritis of the lumbar spine, and tinnitus, and denied the veteran's claim of entitlement to a TDIU. The veteran perfected a timely appeal of these determinations to the Board. In March 2008, the veteran appeared and offered testimony in support of his claim before the undersigned member of the Board. The veteran's testimony on that occasion has been transcribed and associated with his claims file. FINDINGS OF FACT 1. Degenerative arthritis of the lumbar spine is not related to an in-service back injury, or to the veteran's period of service in any other way. 2. The veteran did not incur a chronic tinnitus condition in service. 3. Asbestosis, or any other respiratory condition, was not the result of service. 4. The veteran's service-connected disabilities do not result in inability to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Degenerative arthritis of the lumbar spine was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(d), 3.307, 3.309(a) (2007). 2. Tinnitus was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(d) (2007). 3. A respiratory condition, to include asbestosis, was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(d) (2007). 4. The criteria for establishing entitlement to a total rating based on individual unemployability due to service- connected disabilities are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16, 4.19 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, November 2004 and November 2006 letters to the veteran from the Agency of Original Jurisdiction (AOJ) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection, and the division of responsibility between the veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), these letters essentially satisfied the notification requirements of the VCAA by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting that the veteran provide any information or evidence in his possession that pertained to the claim. With respect to the veteran's TDIU claim, Board notes the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez-Flores, the Court found that, at a minimum, adequate VCAA notice requires for an increased rating claim requires that: (1) VA notify the claimant that the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. In the instant case, with respect to the first two requirements of Vazquez-Flores, the Board notes that, as the veteran's claim is for a TDIU, the veteran's claim would not be substantiated by showing a worsening or increase in severity of the disability, but, rather, by showing an inability to secure or follow a substantially gainful occupation as a result of a the veteran's service-connected disability or disabilities. See 38 C.F.R. § 4.16. In this regard, the November 2006 letter informed the veteran that, to substantiate his TDIU claim, the evidence must show that his service-connected disabilities were sufficient, without regard to other factors, to prevent him from performing the mental and/or physical tasks required to get or keep substantially gainful employment. The November 2006 letter also informed the veteran of the schedular requirements needed to substantiate his TDIU claim, if it were to be substantiated on a schedular basis. It furthermore informed him that, if he did not meet such schedular requirements, he may substantiate his claim on an extra-schedular basis, and that, in such a case, the evidence still must show that the veteran was incapable of substantially gainful employment solely because of his service-connected disabilities. Moreover, the record reflects that the veteran had actual knowledge that to substantiate a TDIU claim he must show an inability to secure or follow a substantially gainful occupation as a result of his service-connected disability or disabilities. In this regard, the Board notes that, at his March 2008 Board hearing, in arguing his TDIU claim, the veteran and his representative specifically argued that the veteran was unable to be employed due to both his service- connected disabilities and a disability for which he was seeking service-connection. With respect to the third and forth requirements of Vazquez- Flores, the November 2006 letter both notified the veteran that disability ratings for service-connected disabilities would be determined by applying relevant diagnostic codes, and provided examples of the types of medical and lay evidence that the veteran was able to submit (or ask VA to obtain) that were relevant to establishing a disability evaluation. Thus, with respect to the veteran's TDIU claim, the Board finds that VA has fulfilled its obligation to provide the veteran a meaningful opportunity to participate effectively in the processing of his claim. See Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Board acknowledges that complete VCAA notice was only provided to the veteran after the initial unfavorable decision in this case, rather than prior to the initial decision as typically required. The United States Court of Appeals for Veterans Claims (Court) has held that, in such situations, the appellant has a right to a VCAA content- complying notice and proper subsequent VA process. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A VCAA-compliant letter was issued to the veteran in November 2006. Thereafter, he was afforded an opportunity to respond, and the AOJ then subsequently reviewed the claim and issued a supplemental statement of the case to the veteran as recently as January 2008. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Pelegrini v. Principi, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Also, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim, including the disability rating and effective date of the award. The veteran was provided this notice in November 2006. As such, any notice deficiencies related to the rating or effective date were subsequently remedied. Thus, the Board finds no prejudice to the veteran in processing the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). Second, VA has a duty under the VCAA to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002). In this regard, the following are associated with the claims file: the veteran's service medical and service personnel records, private post- service medical records, VA medical examinations, the veteran's testimony at his April 2007 RO hearing and March 2008 Board hearing, and written statements from the veteran and his representative. The Board notes that the RO attempted to obtain Social Security Administration (SSA) records, but was notified by SSA in an October 2007 correspondence that the veteran's medical records had been destroyed. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. The Board therefore determines that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. II. Service Connection and TDIU The veteran argues that he is entitled to service connection for degenerative arthritis of the lumbar spine, tinnitus, and a respiratory condition, to include asbestosis. The veteran also argues that he is entitled to a TDIU. Specifically, the veteran has made the following arguments: that his records reflect that he was aboard several U.S. naval ships during the Korean War, and it is common knowledge that ships during that time were loaded with asbestos; that this was his initial contact with asbestos, and he feels that VA should concede the fact that his asbestosis originated from this initial exposure; that he chipped paint on five ships or more, working on most of all decks, mostly chipping paint and touching up rust spots with red lead pain, and working in the engine rooms; that he was hit by shrapnel from a mortar shell in October 1950; that, in December 1950, he was hit with a concussion grenade, was knocked unconscious, was thrown into a truck with dead bodies, jumped out of the truck when he became conscious, and has had problems with his back since then; and that he has had ringing his right hear for 55 years, since he was hit by a grenade. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service; the presumptive period for arthritis is one year. 38 C.F.R. § 3.307, 3.309(a). The Board further recognizes that, in the case of any veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service incurrence if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation, and, to that end, every reasonable doubt shall be resolved in favor of the veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, these provisions deal with the question of whether a particular disease or injury occurred in service; that is, what happened then, and not the question of either current disability or nexus to service, for both of which competent medical evidence is generally required. In other words, these provisions do not presumptively establish service connection for a combat veteran; rather, they relax the evidentiary requirements for determining what happened in service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521, 524 (1996). Combat service requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999). The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy must be resolved on a case-by-case basis. Id. In the instant case, the veteran's service personnel records indicate service on naval ships. Service medical records reflect no complaints of or treatment for tinnitus, a back condition, or a respiratory condition, including asbestosis. Records dated in October 1951 indicate that the veteran was injured by shrapnel in Korea, and that he had pad pain in his right foot on walking or standing. October 1950 service medical records in indicate that, in September 1950, the veteran developed abdominal pain, and that, prior to the attack, the veteran had had no food for 48 hours because he was under enemy attack. On examination in February 1952, the following was noted: that the veteran had sustained injuries including shrapnel in the right foot, and a bullet wound in the right knee, while in Korea; that the veteran had no tinnitus, discharge or deafness; and that examination of the back was negative. In September 1952, the veteran was noted to have had a negative chest x-ray, with no defects noted. On discharge examination in November 1952, the veteran was noted to have had a normal evaluation of the ears, including normal hearing, as well as a normal evaluation of the lungs, chest, spine, and other musculoskeletal system. No tinnitus, back problems, or respiratory problems, including asbestosis, were noted. A January 1989 private treatment record indicates that the veteran had been reviewed for the presence of and classification of asbestosis, that there were mid lung profusion abnormalities, that there was a right chest wall profile and en face pleural plaque formation of la and on the left there was en face pleural plaque formation of la. It was noted that there was parenchymal and pleural changes consistent with change secondary to asbestos exposure. Partial July 1989 private medical treatment records indicate that the veteran's history of asbestos exposure was corroborated by the pleural changes as detected on chest x- ray, and that, because of the veteran's history, he was advised as to his increased risk to the subsequent development of clinically significant parenchymal asbestosis as well as he possibility of developing neoplastic process. Partial private August 1991 medical treatment records indicate that the veteran's exposure history, pleural plaquing, and profusion of abnormalities were consistent with asbestosis, that because of these findings he was at an increased risk to develop such asbestos-related problems as debilitating parenchymal asbestosis or lung cancer, and that he should be carefully monitored in the future and continue to refrain from smoking. A January 2001 private x-ray report indicates mild to moderate degenerative changes with mild kyphosis of the thoracic spine. August 2002 private x-rays indicate degenerative changes of the thoracic and lumbar spine. August 2002 computed tomography (CT) scan of lumbosacral spine showed disc bulging and degenerative changes resulting in spinal stenosis and foraminal narrowing a multiple levels. In January 2003, it was noted that the veteran had back pain related to a car accident. A November 2004 letter from the veteran's private medical provider indicates the following: that the veteran claimed to that he had ringing his right ear and some hearing loss for about 54 years; that he was recently evaluated at VA for some type of disability; and that he claimed he had ringing in his right ear since he had a concussion grenade go off near him during the Korean war. Examination revealed that the veteran was somewhat hard of hearing, and audiogram revealed a mild to moderate high frequency sensorineural hearing loss, greater on the right as compared to the left. The veteran was diagnosed as having asymmetrical sensorial neural hearing loss on the right, most likely due to concussion grenade, and tinnitus, probably secondary to noise exposure. The veteran was given a VA audiological examination on March 2005. On examination, it was noted that the veteran's primary complaint was tinnitus. The veteran reported that he had been exposed to combat noise, that, as a civilian, he worked construction for almost forty years. He also reported hearing a constant severe sound like escaping air in his right ear, which he first heard in 1950 following an explosion. The veteran was diagnosed as having moderate to moderately severe high frequency hearing loss in the right ear with good speech recognition. The examiner opined that the veteran was likely exposed to hazardous noise while in the military, and that there was documentation of shrapnel wounds which would suggest a nearby explosion. The examiner opined that, giving the veteran the benefit of the doubt, it was as likely as not that this hearing loss was related to his military service. However, the examiner also opined that, given the statement that no tinnitus was found in February 1952 service medical records, after the veteran had returned from Korea, it was not as likely as not that his tinnitus was related to his military service. The veteran was afforded a VA examination in March 2005. At that time, the following history was noted: the veteran had been retired from the past 14 years, prior to which he worked as a pipe fitter for 42 years; regarding the asbestosis, the veteran stated that he was diagnosed with this in 1980; apparently, a business agent for the company for whom he worked rounded up a number of employees including the veteran and had them examined by the company for a lawyer seeking a class action, and the veteran was then diagnosed based upon chest x-ray and pulmonary function studies; he retired in about 1991 due to shortness to breath; the veteran stated that during his active military duty he was on seven different ships being transported to various places, including to and from Korea; he estimated that he had five trips aboard ships and each trip was 25 days in duration; on at least one ship he had to work with some asbestos insulation; as mentioned, he worked for 42 years as a pipe fitter doing a lot of welding and insulation work with asbestos; he described doing what he referred to has hot welds with asbestos wrapped around the pipes; he did some insulation work with asbestos on these pipes as well; he also worked in a number of power plants and stated that asbestos particles would rain down almost like snow; he would wear a paper throwaway dust mask only, which may or may not have been adequate for proper personal protection; and the veteran had been a nonsmoker for the past 18 years, prior to which he smoked one to one and a half packs of cigarettes per day for 14 years. The following was also noted: the veteran had symptoms of shortness of breath; he was dyspneic, even with conversation; he had dyspnea with exertion; he estimated his maximum walking distance at only 100 feet; and he estimated that he could climb about half a flight of stairs before having to stop and rest. With respect to the veteran's back, the following was noted: the veteran had chronic back pain from a ruptured disc; this had its onset in 2001; there was no specific injury; magnetic resonance imaging (MRI) was attempted, but unsuccessful because of the retained shrapnel in his right index finger; he had had no surgeries on the back; he had chronic daily back pain radiating into his left hip and back the left lower extremity; and, as he had been unemployed for the past 14 years, there had been no bearing on his employment. The VA examiner noted that the veteran's chest x-ray was normal, and the veteran was diagnosed as having no evidence of asbestosis, and degenerative arthritis, lumbar spine. The examiner noted that the veteran may have been exposed to some asbestos aboard the ships on which he was transported in his active duty, but that he had a very significant asbestos exposure history from his employment, which seemed to greatly outstrip the magnitude of his active duty exposure. Therefore, in the examiner's opinion, it was not at least as likely as not that any asbestosis the veteran developed would be caused by the limited exposure during the military, but would more likely than not be a result of his extensive occupational exposure. The examiner also opined that, regarding unemployability, the veteran was markedly impaired by his shortness of breath, which would limit him to only an extremely sedimentary type of activity, and the examiner estimated that he would not be able to lift and carry more than about 5 pounds at a time, on an occasional basis, and this would only be for a short distance. The VA examiner also opined that the veteran would also be precluded from any exposure or dust, fumes, etcetera, and was further limited by pain from his chronic back condition and his left shoulder, but that these were not related to his active military duty to any degree. At his RO hearing in April 2007, the veteran testified s follows: that the March 2005 examiner had misstated the veteran's history in that the lawsuit for which the veteran was evaluated was not against his employer, but rather against asbestos companies; that some people in local had asbestosis, so all pipe fitters got checked; that he began having problems beginning in the early 60's and did not smoke; that he was exposed to asbestos up until March 1951, when he came back from Korea. At his Board hearing in March 2008, the veteran testified as follows: that his back problems came from the grenade compression he sustained while in service in 1950; that he noticed his ears were ringing after a compression grenade explosion in December 1950; that the veteran was exposed to both lead paint and asbestos on duty, working ion ships; and that the veteran was not able to work because of his service- connected frostbite on his hands and feet, which had gotten worse in his older age. A. Degenerative arthritis of the lumbar spine The Board finds a preponderance of the evidence to be against the veteran's claim of service connection for degenerative arthritis of the lumbar spine. Initially, the Board notes the veteran's assertions that he incurred his in-service back injury while engaged in combat with the enemy. In this regard, the Board notes that the veteran's October 1951 service medical records indicate that the veteran was injured by shrapnel in Korea, October 1950 service medical records in indicate that, in September 1950, the veteran had had no food for 48 hours because he was under enemy attack, and February 1952 records indicate that the veteran had sustained injuries including a shrapnel in the right foot, and a bullet wound in the right knee. In light of these records and the veteran's assertions regarding his engagement in combat, the Board finds that the veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Thus, as the veteran's claimed experience of a concussion grenade explosion is consistent with the circumstances, conditions or hardships of his combat service in Korea, the Board accepts as credible lay evidence the veteran's report that, in December 1950, he was hit with a concussion grenade, was knocked unconscious, was thrown into a truck with dead bodies, jumped out of the truck when he became conscious, and sustained a back injury. However, while acknowledging this in-service event, the Board does not find any current degenerative arthritis of the lumbar spine to be related to this in-service back injury, or to the veteran's period of service in any other way. Although such injury may have occurred, a chronic in-service condition has not been shown. Service medical records reflect no complaints of or treatment for any back condition. On service examination in February 1952, examination the back was negative. On discharge examination in November 1952, the veteran was noted to have had a normal evaluation of the spine and other musculoskeletal system, and no back problems were noted. Furthermore, continuity of symptomatology after service has not been shown. The first indication in the medical record of any back problems is a January 2001 private x-ray report indicating mild to moderate degenerative changes with mild kyphosis of the thoracic spine; an August 2002 CT scan of lumbosacral spine showed disc bulging and degenerative changes resulting in spinal stenosis and foraminal narrowing at multiple levels. The dates of these initial back treatment records are consistent with the history noted on March 2005 VA examination, which indicates that the veteran had chronic back pain from a ruptured disc, and that this had its onset in 2001. The Board notes that this onset date is over 45 years after the veteran's period of service. Additionally, the competent medical evidence of record weighs against the veteran's service connection claim for degenerative arthritis of the lumbar spine. After examining the veteran and reviewing the record, including service medical records, the March 2005 VA examiner stated that the veteran's chronic back condition was not related to his active military duty to any degree. Also, there is no medical opinion or other competent medical evidence indicating an etiological relationship between any current degenerative arthritis of the spine, or any other back condition, and the veteran's period of service in any way. Accordingly, service connection is not warranted for degenerative arthritis of the lumbar spine. B. Tinnitus The Board finds a preponderance of the evidence to be against the veteran's claim of service connection for tinnitus. As discussed above, the Board acknowledges that the veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The Board furthermore finds that the veteran's asserted experience of a compression grenade explosion in December 1950 is consistent with the circumstances, conditions or hardships of such service. Thus, the Board accepts as credible lay evidence the veteran's report that, in December 1950, he experienced a concussion grenade explosion. However, the record does not reflect a chronic tinnitus condition subsequent to the December 1950 explosion. The Board notes the veteran's contentions that he noticed that his ears were ringing after the concussion grenade explosion. However, such assertions are contradicted by the veteran's service medical records, which indicate that, on examination in February 1952, the veteran had no tinnitus, discharge or deafness, and that, on discharge examination in November 1952, the veteran had a normal evaluation of the ears, including normal hearing, with no tinnitus noted. Also, the medical record does not reflect continuity of tinnitus symptomatology after service. The earliest indication of tinnitus in the record is the veteran's October 2004 claim form for service connection, and the earliest medical evidence of any tinnitus or hearing problems is dated in November 2004, which is more than 50 years after the veteran's period of service. The Board acknowledges the veteran's contentions that, despite the lack of medical treatment, he had experienced tinnitus for over 50 years following service. While the Board acknowledges that the veteran is competent to observe ringing in his ear or ears, the objective evidence of record weighs heavily against the credibility of the veteran's assertions. Specifically, the veteran was found not to have tinnitus on September 1952 service examination, no tinnitus or hearing problems were noted on November 1952 separation examination, and the record reflects no indication of tinnitus for more than 50 years after the veteran's period of service. The Board notes the two medical etiology opinions of record with respect to the veteran's claimed tinnitus, and that they are inconsistent with each other. The March 2005 VA audiological examiner opined that, given the statement that no tinnitus was found in February 1952 service medical records, after the veteran had returned from Korea, it was not as likely as not that his tinnitus was related to his military service. The November 2004 letter from the veteran's private medical provider indicates a diagnosis of tinnitus, probably secondary to noise exposure, which was based on the veteran's reported history of having ringing in his right ear for about 54 years since he had a concussion grenade go off near him during the Korean war. However, the Board finds the March 2005 VA audiology examiner's opinion to be more probative than the November 2004 private examiner's opinion. The March 2005 VA examiner reviewed the veteran's records, and made the etiology opinion based on medical evidence in the service medical records revealing a lack of tinnitus on September 1952 service examination. There is no indication that the November 2004 private examiner based his etiology opinion on a review of any service medical records. Rather, the November 2004 examiner based such opinion on the veteran's reported history of having ringing in his right ear for about 54 years since he had a concussion grenade go off near him during the Korean War. As the Board does not find the history relied upon by the November 2004 private examiner to be credible, the Board finds the etiology opinion of the November 2004 private examiner to be less probative than that of the March 2005 VA examiner. See DeSousa v. Gober, 10 Vet. App. 461 (1997). Accordingly, service connection for tinnitus is not warranted. C. Respiratory condition, to include asbestosis The Board finds that, while the veteran may have been exposed to asbestos in service, no current asbestosis or other respiratory condition is related to service. The March 2005 VA examiner noted that the veteran may have been exposed to some asbestos aboard the ships on which he was transported in his active duty, but that he had a very significant asbestos exposure history from his employment, which seemed to outstrip the magnitude of his active duty exposure greatly, and that, therefore, it was not at least as likely as not that any asbestosis the veteran developed would be caused by the limited exposure during the military, but would more likely than not be a result of his extensive occupational exposure. In this regard, the Board notes that the veteran reported on March 2005 VA examination that he worked for 42 years as a pipe fitter doing a lot of welding and insulation work with asbestos. The Board also notes that there is no medical opinion or other competent medical evidence of record relating asbestosis or any other respiratory condition to the veteran's period of service. Furthermore, the Board finds the opinion of the March 2005 VA examiner to be consistent with the record. Although the veteran's service personnel records indicate service on naval ships, service medical records reflect no complaints of or treatment for any respiratory condition, including asbestosis. Also, in September 1952, the veteran was noted to have had a negative chest x-ray, with no defects noted. On discharge examination November 1952, the veteran was noted to have had a normal evaluation of the lungs and chest, with no respiratory problems, including asbestosis, noted. The first indication of any asbestosis or other respiratory problem in the record is the January 1989 private medical treatment report, which noted parenchymal and pleural changes consistent with change secondary to asbestos exposure. Moreover, this initial evaluation for asbestos-related lung problems was the result of all pipe fitters in the veteran's local getting checked due to some of the pipe fitters being found to have asbestosis. The Board notes the veteran's contentions at his April 2007 RO hearing that he had began having respiratory problems beginning in the early 60's and did not smoke. However, the Board again notes that the earliest indication of any medical treatment for respiratory problems, including an asbestos- related respiratory problem, is January 1989. Also, although the January 1989, July 1989, and August 1991 private treatment records for possible asbestosis note a history of asbestos exposure, none of these records indicate a long- standing respiratory problem, or reports of breathing problems or asbestos-related problems going back to the early 1960s. Moreover, given that these examinations were provided in the context of a lawsuit related to fellow pipe fitters in the veteran's local developing asbestosis, the history of asbestos exposure to which such private treatment records refer is likely the veteran's post-service occupational exposure as a pipe fitter for many years. Accordingly, service connection for a respiratory condition, including asbestosis, is not warranted. D. TDIU Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following are considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341 (2006). Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. The Board finds that a TDIU is not warranted in the instant case. First, there is no basis in the schedular criteria to award a TDIU. The following disabilities are service-connected: residuals of frostbite, right hand with arthritis, currently rated 30 percent; residuals frostbite to left foot with arthritis, currently rated 20 percent; residuals of frostbite right foot with arthritis, currently rated 20 percent; bilateral hearing loss, currently rated 0 percent; scars, bullet wound, left knee, shell fragment wound right foot and right index finger, currently rated 0 percent. The veteran's combined evaluation for compensation is 60 percent. As there is no single service-connected disability ratable at 60 percent or more, no disability ratable at 40 percent or more, and a combined rating of less than 70 percent, the veteran does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16. Second, the record does not reflect that the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Rather, the record reflects that the veteran is not able to work due to disabilities that are not service-connected. In this regard the Board notes that, on March 2005 VA examination, the veteran stated that he retired in about 1991 due to shortness to breath. The Board also notes that this statement is consistent with the treatment records from January 1989 to August 1991 for the veteran's respiratory problems. Also, the March 2005 VA examiner opined that, regarding unemployability, the veteran was markedly impaired by his shortness of breath, which would limit him to only an extremely sedimentary type of activity, that he would not be able to lift and carry more than about 5 pounds at a time, on an occasional basis, and that this would only be for a short distance. The VA examiner also opined that the veteran would be precluded from any exposure or dust, fumes, etcetera, and was further limited by pain from his chronic back condition and his left shoulder, but that these were not related to his active military duty to any degree. The Board notes the veteran's contentions at his March 2008 Board hearing that he was not able to work because of his service-connected frostbite on his hands and feet, which had gotten worse in his older age. However, again, the medical evidence of record indicates marked occupational impairment due to non service-connected disabilities. There is no medical opinion or other competent medical evidence indicating that the veteran is unable to secure and follow a substantially gainful occupation by reason of residuals of frostbite or arthritis's of the right hand or right or left foot, hearing loss, bullet wound scars, or right foot and right index finger shell fragment wounds. Furthermore, the record does not reflect that these service-connected disabilities have ever caused any actual interference with the veteran's ability to secure and follow a substantially gainful occupation. Accordingly a TDIU is not warranted. In reaching these determinations, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not applicable. ORDER 1. Entitlement to service connection for degenerative arthritis of the lumbar spine is denied. 2. Entitlement to service connection for tinnitus is denied. 3. Entitlement to service connection for respiratory condition, to include asbestosis is denied. 4. Entitlement to a TDIU is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs