Citation Nr: 1009150	
Decision Date: 03/10/10    Archive Date: 03/17/10

DOCKET NO.  08-02 534	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office 
in St. Petersburg, Florida


THE ISSUE

1.  Entitlement to a compensable evaluation for asbestosis, 
on appeal from an initial grant of service connection.  

2.  Entitlement to service connection for chronic obstructive 
pulmonary disease (COPD).  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel




INTRODUCTION

The appellant had active military service in the United 
States Navy from July 1952 to August 1955.  

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from an August 2007 rating decision of the 
Department of Veterans Affairs (VA), Regional Office (RO), 
located in St. Petersburg, Florida.  

In April 2009, the Board requested an opinion from a medical 
expert of the Veterans Health Administration (VHA) as to this 
claim.  See 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 
20.901 (2009).  The opinion was obtained and included in the 
claims folder, the appellant has been provided with a copy of 
that opinion, and no additional evidence has been submitted 
by the appellant in response to that medical opinion.  After 
the Board obtained the VHA medical opinion, the Board 
remanded the claim in August 2009 to the RO via the Appeals 
Management Center (AMC), in Washington, DC, for the purpose 
of obtaining additional medical information.  The requested 
information was obtained and the claim has since been 
returned to the Board for review.

It should be noted that when the claim originally came before 
the Board, there were two issues on appeal.  The first issue 
involved an increased rating for asbestosis; the second issue 
on appeal was entitlement to service connection for chronic 
obstructive pulmonary disease (COPD).  In a document received 
in January 2010, the appellant withdrew his claim involving 
COPD.  

Please note this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2009).  38 U.S.C.A. 
§ 7107(a)(2) (West 2002).




FINDINGS OF FACT

1.  Although the appellant is diagnosed as having pleural 
plaque asbestosis, he does not demonstrate objective 
manifestations of disability as a result of the condition.  

2.  On January 4th, 2010, prior to the promulgation of a 
decision in the appeal, the VA received notification from the 
appellant that he was withdrawing his appeal on the issue of 
entitlement to service connection for COPD.  


CONCLUSIONS OF LAW

1.  The criteria for an initial, compensable rating for 
asbestosis have not been met.  38 U.S.C.A. §§ 1155, 5103, 
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 
3.159, 3.321(b), 4.1, 4.2, 4.7, 4.31, 4.96, 4.97, Diagnostic 
Code 6833 (2009).

2.  The criteria for withdrawal of a Substantive Appeal by 
the appellant with respect to the issue of entitlement to 
service connection for chronic obstructive pulmonary disease 
have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & 
Supp. 2009); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Increased Evaluation - Asbestosis

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA 
notice must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate 
the claim; (2) that VA will seek to provide; and (3) must ask 
the claimant to provide any evidence in her or his possession 
that pertains to the claim in accordance with 38 C.F.R. § 
3.159(b)(1).  VCAA notice should be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004) (Pelegrini II); see also 
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on 
other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).  Notice which 
informs the veteran of how VA determines disability ratings 
and effective dates should also be provided.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)

In this case the appellant's request for an increased rating 
stems from the initial grant of service connection.  Courts 
have held that once service connection is granted the claim 
is substantiated; additional notice is not required; and any 
defect in the notice is not prejudicial.  Hartman v. 
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. 
Nicholson, 21 Vet. App. 112 (2007).

The Board finds that the AOJ has satisfied the duty to assist 
as required by the VCAA.  The appellant's service treatment 
records, VA medical records, private medical treatment 
records, and VA examination reports are all of record.  There 
is no indication that there is any outstanding evidence that 
should be obtained.

Additionally, the Board finds there has been substantial 
compliance with its August 2009 remand instructions.  The 
Board notes that the United States Court of Appeals for 
Veterans Claims, hereinafter the Court, has noted that "only 
substantial compliance with the terms of the Board's 
engagement letter would be required, not strict compliance."  
D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also 
Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that 
there was no Stegall violation when the examiner made the 
ultimate determination required by the Board's remand, 
because such determination "more than substantially complied 
with the Board's remand order").  The record indicates that 
the AMC scheduled the appellant for a medical examination and 
the appellant attended that examination.  The examiner 
reviewed the claims folder prior to examining the appellant 
and provided additional comments in the form of an addendum 
when the AMC concluded that not enough information was 
contained in the examination report.  [As an aside, the Board 
finds that the examination report is adequate for rating 
purposes as a physical examination with testing was 
performed, the examiner took into account the history and 
reviewed the claims folder, and an opinion with rationale was 
provided.  See Barr v. Nicholson, 21 Vet. App. 303, 311 
(affirming that a medical opinion is adequate if it provides 
sufficient detail so that the Board can perform a fully 
informed evaluation of the claim).]  The results were then 
returned to the AMC and the AMC issued a rating in the form 
of a Supplemental Statement of the Case (SSOC) after 
reviewing the results of that examination.  Based on the 
foregoing, the Board finds that the AMC substantially 
complied with the mandates of its remand.  See Stegall v. 
West, 11 Vet. App. 268, 271 (1998) (finding that a remand by 
the Board confers on the appellant the right to compliance 
with the remand orders).  

Disability evaluations are determined by the application of a 
schedule of ratings that is based on the average impairment 
of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 
C.F.R., Part 4 (2009).  Separate diagnostic codes identify 
the various disabilities.  38 C.F.R. § 4.1 (2009) requires 
that each disability be viewed in relation to its history and 
that there be emphasis upon the limitation of activity 
imposed by the disabling condition.  38 C.F.R. § 4.2 (2009) 
requires that medical reports be interpreted in light of the 
whole recorded history, and that each disability must be 
considered from the point of view of the veteran working or 
seeking work.  38 C.F.R. § 4.7 (2009) provides that, where 
there is a question as to which of two disability evaluations 
shall be applied, the higher evaluation is to be assigned if 
the disability picture more nearly approximates the criteria 
required for that rating.  Otherwise, the lower rating is to 
be assigned.

This appeal stems from the appellant's disagreement with the 
assignment of a noncompensable rating following an original 
grant of service connection, and the potential for the 
assignment of separate, or "staged" ratings for separate 
periods of time, based on the facts found, are for 
consideration.  Fenderson v. West, 12 Vet. App. 119 (1999).

An evaluation of the level of disability present also 
includes consideration of the functional impairment of the 
service member's ability to engage in ordinary activities, 
including employment.  38 C.F.R. § 4.10 (2009).

In August 2007, the RO granted service connection for 
asbestosis and assigned a noncompensable evaluation.  The 
noncompensable evaluation was assigned in accordance with 38 
C.F.R. Part 4, Diagnostic Code 6833 (2009).  The 
noncompensable evaluation was assigned based upon private and 
VA medical records.  

With respect to the private medical reports of record, these 
records revealed diagnoses of restrictive lung disease, 
asbestos pleural plaques, and COPD.  

In January 2005, a private physician noted that the Veteran 
was a cigarette smoker and diagnosed COPD.  Although the 
physician advised that a pulmonary function test (PFT) should 
be performed, there is no record that any tests were 
immediately obtained.  In December 2005, an X-ray showed 
concern for lobulated area of pleuaral thickening in the 
right upper lobe laterally.  Changes of COPD and prior 
granulomatous disease noted.  Chronic basilar interstitial 
changes were also suspected.  A computed tomography scan 
performed later that month showed multiple focal areas of 
pleural thickening bilaterally, the majority of which were 
noncalcified, and likely represented pleural plaques.  Mild 
subsegmental atelectasis or minimal consolidation along the 
medial aspect of the right middle lobe was also found.  

In January 2006, a private consulting physician noted that 
the Veteran had a 
53 pack-year history of smoking cigarettes and that the 
Veteran denied any knowledge of asbestos exposure.  The 
physician reviewed the X-ray and computed tomography studies 
and diagnosed asbestos pleural plaques and COPD.   A 
pulmonary function test and another computed tomography scan 
were performed in May 2006.  The PFT interpretation was that 
of a moderate restrictive ventilatory defect.  

In August 2006, the physician noted a review of the results 
of the scan and PFT and noted that the Veteran denied any 
chest pain or shortness of breath.  However, citing the test 
results, the physician diagnosed asbestos pleural plaques, 
restrictive lung disease, and COPD.  In March 2007, the 
physician noted the Veteran's reports of occasional cough and 
some dyspnea on exertion but no fevers or chest pains.  He 
continued the previous diagnoses.  

In April 2007, a VA physician noted a review of the claims 
file including the previous private examinations and tests.  
He noted that computed tomography scans in 2005 and 2006 
showed multiple areas of calcified pleural based masses 
related to previous asbestos disease.  On respiratory 
examination, the physician noted no obvious chest wall 
deformity, no restrictive movements, good air entry at the 
base, no basal rales, rhonchi, or wheezing, and no central or 
peripheral cyanosis.  The physician diagnosed COPD, 
restrictive lung disease, and pleural plaquing with post 
asbestosis exposure, all with residuals.  He stated that the 
restrictive lung disease is at least as likely as not caused 
by exposure to asbestos but that COPD was not caused by 
asbestos exposure but rather by the history of cigarette 
smoking. In a June 2007 addendum, the physician reviewed the 
test results and modified his diagnoses.  The diagnoses were 
asbestosis without objective evidence of residuals on 
pulmonary function testing and COPD.  The examiner noted that 
the pulmonary function tests indicated that the appellant was 
suffering from "moderate obstructive lung defect with 
significant response to bronchodilator."  The examiner 
further concluded that there was no objective evidence of 
restrictive lung disease (respiratory residuals of 
asbestosis) nor were there objective residuals on the 
pulmonary function testing of asbestosis.  Finally, the 
examiner attributed the diagnosed chronic obstructive lung 
disease to a non-asbestosis related condition.  

In December 2007, the private consulting physician noted a 
review of X-rays obtained the previous March that showed 
hyperinflated lungs with no infiltrates or adenopathy.  He 
noted the Veteran's reports of dyspnea on exertion but no 
cough or chest pain.  On examination, he noted that the lungs 
were clear to auscultation and percussion.  He referred to a 
pulmonary function test on an unspecified date and stated 
that the results showed moderate restrictive ventilatory 
impairment and mild obstructive ventilatory impairment.  This 
assessment is the same as he made in August 2006 after review 
of May 2006 pulmonary function tests.  In a letter the same 
month, the physician stated that computed tomography scans 
revealed the presence of asbestos pleural plaques and noted 
that the pulmonary function tests showed an FEV-1 of 47 
percent.  

Also in the claims folder is a pulmonary function test result 
from September 2008.  The record indicates that the testing 
was ordered by the appellant's doctor in conjunction with the 
appellant's COPD.  It was not obtained as a result of the 
appellant's service-connected asbestosis.  Upon completion of 
the testing, the test provider indicated that the appellant 
was experiencing mild obstructive pulmonary impairment.  

As reported above, the appellant's records were reviewed by a 
board-certified VHA pulmonologist in May 2009.  In his 
analysis, the pulmonologist concluded that while the 
appellant may have been diagnosed as having pleural plaques, 
this was not indicative of interstitial or restrictive lung 
disease, as pleural plaques are only indicative of previous 
exposure to asbestos.  The physician further stated that a 
high resolution CT did not show evidence of interstitial lung 
disease and pulmonary function testing was inconclusive.  
However, the high resolution CT would be considered the 
"gold standard" for the diagnosis of asbestos, therefore, 
the likelihood that valid pulmonary function testing would 
change the above opinion was considered very unlikely.  It 
was the physician's opinion that more likely than not, the 
Veteran did not have asbestos-related interstitial lung 
disease.  

After receiving the response from VHA, the Board then 
remanded the claim to the AMC so that another VA Pulmonary 
Examination could be accomplished.  The purpose of the 
examination was to discover and document the severity of the 
appellant's asbestosis disorder.  Said examination was 
performed in November 2009.  It is noted that the examiner 
reviewed the appellant's claims folder.  

During the questioning mode of the examination, the appellant 
stated that he suffered from respiratory problems or flare-
ups every one to two months for a few days.  He complained of 
dyspnea with exertion, including talking "too much".  He 
reported that he used a nebulizer and other medications for 
respiratory relief.  When examined, the examiner noted that 
that the appellant's respirations were regular and rhythmic, 
and his lungs were "clear without wheezes".  There were no 
gross varicosities or venous flushing found, and the 
appellant was negative for stasis dermatitis, pretibial 
edemia, or pallor.  Peripheral pulses were palpable and 
bilaterally equal.  Pulmonary function test (PFT) results 
were inadequate to define his lung volumes; however, the 
examiner attributed the poor results to the appellant's 
nonservice-connected emphysema/COPD.  She specifically wrote 
that the decrease in lung diffusion capacity was "not caused 
by or related to asbestos exposure."  It was further written 
that while the appellant had pleural-based plaques, there was 
no residual restrictive lung defect, there was no evidence of 
mesothelioma, and there were no findings of interstitial lung 
changes.  It was also noted in the November 2009 report and 
addendum that any clinically significant interstitial 
fibrosis would cause a restrictive lung defect, therefore, 
further testing such as a high-resolution CT was a moot 
point.  

The VA medical care provider proffered an addendum to the 
November 2009 examination report shortly after the original 
examination.  The examiner wrote the following:

The veteran does not have a restrictive 
lung defect, and therefore, it is not 
caused by, related to or aggravated by 
asbestos exposure or any other aspect of 
service.

The veteran[']s obstructive lung defect 
(Emphysema or COPD) is not caused by, 
related to or aggravated by asbestos 
exposure or any other aspect of service.

....

The veteran does not have an interstitial 
lung disease of any kind, including 
asbestos-related. . . . As such there are 
no representative impairments by imaging, 
functions tests or other findings. . . . 

As previously indicated, the appellant's asbestosis has been 
assigned a noncompensable evaluation in accordance with 
rating criteria found at 38 C.F.R. Part 4, Diagnostic Code 
6833 (2009).  Under this code, asbestosis is to be rated 
under the General Rating Formula for Interstitial Lung 
Disease.  This Formula states that a 10 percent evaluation is 
warranted for FVC of 75- to 80-percent predicted value, or; 
DLCO by the Single Breath Method (DLCO (SB)) of 66- to 80-
percent predicted.  A 30 percent evaluation is warranted for 
FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 
65- percent predicted. A 60 percent evaluation is warranted 
for 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 is warranted for 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.  

38 C.F.R. § 4.96 (d) (2009) enumerates special provisions for 
the application of evaluation criteria for Diagnostic Codes 
6600, 6603, 6604, 6825-6833, and 6840-6845.  

(1) Pulmonary function tests (PFT's) are 
generally required to evaluate these 
conditions.  

(2) If the DLCO (SB) test is not of 
record, evaluate based on alternative 
criteria as long as the examiner states 
why the test would not be useful or valid 
in a particular case.  

(3) When PFT's are not consistent with 
clinical findings, evaluate based on the 
based on the PFT's unless the examiner 
states why they were not a valid 
indication of respiratory functional 
impairment in a particular case.  

(4) Post-bronchodilator studies are 
required when PFT's are done for 
disability evaluation purposes, except 
when the results of pre-bronchodilator 
pulmonary function tests are normal or 
when the examiner determines that post-
bronchodilator studies should not be done 
and states why.  

(5) When evaluating based on PFT's, use 
post-bronchodilator results in applying 
the evaluation criteria in the rating 
schedule unless post-bronchodilator 
results were poorer than the pre-
bronchodilator results. In that case, use 
the pre-bronchodilator values for rating 
purposes.  

(6) When there is a disparity between the 
results of different PFT's so that the 
level of evaluation would differ 
depending on which test result is used, 
use the test result that the examiner 
states most accurately reflect the level 
of disability. 

38 C.F.R. § 4.96 (d) (2009).

In every instance where the schedule does not provide a 
noncompensable (zero percent) rating for a diagnostic code, a 
zero percent rating shall be assigned when the requirements 
for a compensable rating are not met.  38 C.F.R. § 4.31 
(2009).

In order to meet the criteria for the minimum, compensable 
rating of 10 percent under 38 C.F.R. Part 4, Diagnostic Code 
6833 (2009), a FVC of 75 to 80, or a DLCO (SB) of 66 to 80 
predicted is required.  Here, however, while the appellant is 
service-connected for asbestosis based on the presence of 
pleural plaques, the preponderance of the evidence is against 
finding that there are objective manifestations of the 
service-connected disability.  As such, he does not meet the 
requirements for a compensable rating under 38 C.F.R. Part 4, 
Diagnostic Code 6833 (2009) or any other potentially 
applicable code provision.  As such, it logically follows 
that no higher rating under this diagnostic code is warranted 
nor can it be assigned.  

The appellant's private physician diagnosed asbestos pleural 
plaques and a moderate restrictive ventilatory defect.  The 
VA examiner's June 2007 addendum indicated that a PFT showed 
"moderate obstructive lung defect," and that there was no 
objective evidence of restrictive lung disease (respiratory 
residuals of asbestosis).  The VA pulmonary specialist opined 
that the Veteran did have pleural plaques but this was only 
indicative of exposure to asbestos and there was no evidence 
of interstitial lung disease, which would be based on 
functional studies of the lung, PFTs, and DLCO testing.  This 
opinion which is supported by a rationale and which is based 
on a review of the claims folder is entitled to great 
probative weight.  The November 2009 VA examiner indicates 
that while the appellant did have pleural-based plaques there 
was no residual restrictive lung defect, evidence of 
mesothelioma or findings of interestitial lung changes.  This 
examination was based on a review of the claims folder, an 
examination of the appellant, to include testing, and the 
opinion was supported by a rationale.  Moreover, the examiner 
explained in the addendum that the presence of a restrictive 
defect shown on PFT does not provide for a diagnosis of 
asbestos-related disease and that the absence of a 
restrictive lung defect does not rule out an asbestos-related 
condition.  Moreover, both the pulmonary specialist and the 
VA examiner opined that the appellant does not have 
interstitial lung disease.  The Board finds that the VA 
examiners' opinions that the appellant does not have 
disability resulting from the pleural plaque asbestosis are 
entitled to great probative weigh.  Therefore, the 
preponderance of the evidence is against finding that the 
service-connected asbestosis has produced residual disability 
that may be assigned a compensable disability rating.  

The appellant has argued that the various examinations 
support his assertions that he should be assigned a higher 
disability evaluation.  However, as discussed above, the 
record indicates the respiratory symptoms experienced by the 
appellant are unrelated to his service-connected pleural 
plaques, i.e., asbestosis, but instead are caused by 
nonservice-connected COPD.  Moreover, while the appellant is 
competent to report his symptoms, he is not shown to have the 
medical expertise required for a determination in this case.  
More specifically, although he is competent to report that he 
experiences shortness of breath, the Board finds that his 
opinion alone does not provide a sufficient basis upon which 
to make a determination as to the degree of impairment due to 
his symptoms that happen not to be related to or caused by 
his service-connected disorder.  In this case, the Board has 
accorded more probative value to the competent medical 
evidence supported by clinical results.  See Espiritu v. 
Derwinski, 2 Vet. App. 492, 494- 95 (1992); Buchanan v. 
Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. 
Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. 
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In determining whether an increased evaluation is warranted, 
the VA must determine whether the evidence supports the claim 
or is in relative equipoise, with the Veteran prevailing in 
either event, or whether the preponderance of the evidence is 
against the claim, in which case an increased rating must be 
denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The 
Board finds that a compensable evaluation is not warranted 
for the appellant's service-connected asbestosis.  The 
medical evidence of record does not show that the appellant's 
condition is presently under evaluated.  The Board has also 
considered all potentially applicable provisions of 38 C.F.R. 
Parts 3 and 4 (2009), whether or not they have been raised by 
the appellant or his representative, as required by Schafrath 
v. Derwinski, 1 Vet. App. 589 (1991).  However, in the 
instant case, the Board finds no other provision upon which 
to assign a compensable evaluation.

The Board has also contemplated whether the appellant is 
entitled to an extraschedular evaluation for the disability.  
Ordinarily, the VA Schedule will apply unless there are 
exceptional or unusual factors which would render application 
of the schedule impractical.  See Fisher v. Principi, 4 Vet. 
App. 57, 60 (1993).  According to the regulation, an 
extraschedular disability rating is warranted based upon a 
finding that the case presents such an exceptional or unusual 
disability picture with such related factors as marked 
interference with employment or frequent periods of 
hospitalization that would render impractical the application 
of the regular schedular standards.  See 38 C.F.R. § 
3.321(b)(1) (2009).  An exceptional case is said to include 
such factors as marked interference with employment or 
frequent periods of hospitalization as to render 
impracticable the application of the regular schedular 
standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 
(1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-
step inquiry for determining whether an appellant is entitled 
to an extraschedular rating.  First, the Board must first 
determine whether the evidence presents such an exceptional 
disability picture that the available schedular evaluations 
for that service-connected disability are inadequate.  
Second, if the schedular evaluation does not contemplate the 
claimant's level of disability and symptomatology and is 
found inadequate, the Board must determine whether the 
claimant's disability picture exhibits other related factors 
such as those provided by the regulation as "governing 
norms."  Third, if the rating schedule is inadequate to 
evaluate a appellant's disability picture and that picture 
has attendant thereto related factors such as marked 
interference with employment or frequent periods of 
hospitalization, then the case must be referred to the Under 
Secretary for Benefits or the Director of the Compensation 
and Pension Service to determine whether, to accord justice, 
the appellant's disability picture requires the assignment of 
an extraschedular rating.

With respect to the first prong of Thun, the evidence in this 
case does not show such an exceptional disability picture 
that the available schedular evaluation for the service-
connected asbestosis is inadequate.  A comparison between the 
level of severity and symptomatology of the appellant's 
disorder with the established criteria found in the rating 
schedule for interstitial lung disorders shows that the 
rating criteria for a noncompensable rating reasonably 
describes the appellant's disability level and 
symptomatology.

The Board further finds that, even if the available schedular 
evaluation for the disability is inadequate (which it 
manifestly is not), the appellant does not exhibit other 
related factors such as those provided by the regulation as 
"governing norms."  The record does not show that the 
appellant has required frequent hospitalizations for his 
asbestosis condition.  Indeed, it does not appear from the 
record that he has been recently hospitalized at all for this 
disorder.  Additionally, there is not shown to be evidence of 
marked interference with employment solely due to the 
asbestosis.  There is nothing in the record which suggests 
that the service-connected disability has markedly impacted 
his ability to perform a job.  Moreover, there is no evidence 
in the medical records of an exceptional or unusual clinical 
picture.

In short, there is nothing in the record to indicate that 
this service-connected disability on appeal causes impairment 
with employment over and above that which is contemplated in 
the assigned schedular rating.  See Van Hoose v. Brown, 4 
Vet. App. 361, 363 (1993) [noting that the disability rating 
itself is recognition that industrial capabilities are 
impaired].  The Board therefore has determined that referral 
of this case for extraschedular consideration pursuant to 38 
C.F.R. 3.321(b)(1) (2009) is not warranted.

II.  Service Connection - COPD

Under 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009), the Board 
may dismiss any appeal that fails to allege specific error of 
fact or law in the determination being appealed.  A 
Substantive Appeal may be withdrawn in writing at any time 
before the Board promulgates a decision.  38 C.F.R. §§ 
20.202, 20.204(b) (2009).  Withdrawal may be made by the 
appellant or by his or his authorized representative, except 
that a representative may not withdraw a Substantive Appeal 
filed by the appellant personally without the express written 
consent of the appellant.  38 C.F.R. § 20.204(c) (2009).

In December 2009, the appellant submitted notice to the VA 
that he was withdrawing his appeal with respect to the issue 
involving COPD.  As the appellant has withdrawn this appeal, 
there remain no allegations of errors of fact or law for 
appellate consideration.  Accordingly, the Board does not 
have jurisdiction to review the appellate issue and it is 
dismissed.


ORDER

1.  Entitlement to a compensable evaluation for asbestosis, 
on appeal from an initial grant of service connection, is 
denied.  

2.  Entitlement to service connection for COPD is dismissed.  



____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs