Citation Nr: 1314764 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-35 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for asbestosis for the period from January 21, 2009 to June 16, 2011. 2. Entitlement to a rating in excess of 60 percent for asbestosis for the period from June 17, 2011. 3. Entitlement to an initial compensable rating for a healed surgical scar, status post left thoracic pleurodesis. 4. Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from October 1941 to November 1945 and from March 1959 to March 1963. This matter initially came to the Board on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a November 2010 decision, the Board denied an initial compensable rating for asbestosis for the period from February 13, 2006 to January 20, 2009 and remanded for further development the possibility of a staged rating for the period from January 21, 2009. On remand, the RO, in a May 2012 rating decision, granted the Veteran an increased rating from zero percent to 60 percent for asbestosis for the period from June 17, 2011. On further appeal, the Board in a July 2012 decision remanded for development both the Veteran's claim for a compensable rating for asbestosis for the period from January 21, 2009 to June 16, 2011 and his claim for a rating in excess of 60 percent for the period from June 17, 2011. In that same remand, the Board also requested a VA examination to determine any disability due to scars related to the Veteran's service-connected asbestosis for the period from January 21, 2009 to the present. On remand, after an October 2012 VA examination, the RO, in a January 2013 rating decision, granted service connection for a healed surgical scar, status post left thoracic pleurodesis, with a noncompensable (zero percent) disability rating, effective January 20, 2009. As more fully explained in the remand below, the Board believes that a Notice of Disagreement has been filed and that the Veteran intends to appeal the noncompensable rating awarded for the scar. The Board also notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (the Court) held that a TDIU claim is part of an increased disability rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the October 2012 VA examiner indicated that the Veteran's asbestosis impacted his ability to work. As such, the issue of a TDIU is before the Board as part and parcel of the Veteran's higher rating claim now on appeal. Therefore, the claims currently on appeal are recharacterized as they appear on the title page above. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The Board notes that the Veteran's representative has signed a waiver of initial RO consideration of any new or additional evidence which the agency of original jurisdiction has not yet reviewed. Therefore, the Veteran is not prejudiced by the Board's initial consideration of this evidence. 38 C.F.R. § 20.1304(c) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The claims of entitlement to a compensable rating for a healed surgical scar and for TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period from January 21, 2009 to June 16, 2011, the Veteran's asbestosis has been manifested by a pulmonary function test (PFT) which shows FVC greater than 80 percent of predicted value, FEV-1 greater than 80 percent of predicted value, FEV-1/FVC greater than 80 percent, and DLCO (SB) greater than 80 percent predicted value. 2. For the period from June 17, 2011, the Veteran's asbestosis has been manifested by PFTs showing FVC greater than 50 percent of predicted value, FEV-1 greater than 40 percent of predicted value, FEV-1/FVC greater than 40 percent, and DLCO (SB) greater than 40 percent of predicted value with no cor pulmonale or pulmonary hypertension or the need for outpatient oxygen therapy. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for asbestosis for the period from January 21, 2009 to June 16, 2011, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.96, 4.97, Diagnostic Codes 6833, 6845 (2012). 2. The criteria for a rating in excess of 60 percent for asbestosis for the period from June 17, 2011, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.96, 4.97, Diagnostic Codes 6833, 6845 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the Court, have been fulfilled by information provided to the Veteran in a letter from the RO dated in June 2006. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his original service connection claim for asbestosis, and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009)). Thereafter, the Veteran was granted service connection for asbestosis and assigned an initial disability rating and effective date. As his claim for asbestosis was more than substantiated in that it was proven, the purpose that the notice is intended to serve has been fulfilled and no additional notice is required. Dingess, 19 Vet. App. at 490-91. The Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to disability ratings and effective dates was provided in the June 2006 correspondence. In addition, since these remaining staged rating claims for asbestosis are a "downstream" issue from that of service connection, notice about increased rating claims pursuant to the original Court decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), was never required for this issue. See VAOPGCPREC 8- 2003 (Dec. 22, 2003). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issue of higher staged ratings for asbestosis have been met. The duty to assist also has been fulfilled. Private and VA medical records relevant to this matter have been requested or obtained, and the Veteran has been provided with VA examinations and a medical opinion. Thus, the Board finds that the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims would not cause any prejudice to the Veteran. Increased Rating - Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Court has held that a claim for a higher rating when placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed, but not yet ultimately resolved), remains an "original claim" and is not a new claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses are prohibited. 38 C.F.R. § 4.14. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). As a layperson the Veteran is only competent to report observable symptoms - not clinical findings which are applied to VA's Schedule for Rating Disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. Asbestosis The Veteran seeks higher staged ratings for his service-connected asbestosis on the basis that the noncompensable rating assigned for one time period and the 60 percent rating for the other time period do not adequately reflect the severity thereof. Historically, the Veteran was granted service connection for pleural plaques and asbestosis in a November 2008 Board decision. In the February 2009 rating decision now on appeal, the Veteran was awarded a noncompensable (zero percent) initial disability rating, effective February 13, 2006. As noted in the Introduction above, on appeal the Board in a November 2010 decision denied an initial compensable rating for asbestosis for the period from February 13, 2006 to January 20, 2009 and remanded for further development the possibility of a higher rating for the period from January 21, 2009. The RO, in a May 2012 rating decision, granted the Veteran an increased rating from zero percent to 60 percent for asbestosis for the period from June 17, 2011. On further appeal, the Board in a July 2012 decision remanded for development both the Veteran's claim for a compensable rating for asbestosis for the period from January 21, 2009 to June 16, 2011 and his claim for a rating in excess of 60 percent for the period from June 17, 2011. The Veteran essentially contends that he should receive a compensable staged rating for the period from January 21, 2009 to June 16, 2011, and that his staged rating of 60 percent, for the period from June 17, 2011, should be increased for his service-connected asbestosis. The Veteran's asbestosis disability is rated under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6833, for rating asbestosis. Under this diagnostic code, a 10 percent rating requires FVC [Forced Vital Capacity] of 75 to 80 percent predicted, or; DLCO (SB) [Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method] of 66 to 80 percent predicted. Id. A 30 percent rating requires FVC of 65 to 74 percent predicted, or; DLCO (SB) of 56 to 65 percent predicted. Id. A 60 percent rating requires FVC of 50 to 64 percent predicted, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. Id. A 100 percent rating requires FVC less than 50 percent predicted, 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 or pulmonary hypertension, or; requires continuous outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6833 (2012). The February 2009 rating decision on appeal and the August 2010 Statement of the Case both also considered whether a higher rating would be available to the Veteran under the provisions of Diagnostic Code 6345 for rating chronic pleural effusion or fibrosis. Such is rated under the General Rating Formula for Restrictive Lung Disease. The General Formula provides for ratings from 10 to 100 percent based primarily on the results of PFTs, specifically, Forced Expiratory Volume in one second (FEV-1), Forced Vital Capacity (FVC), and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)). In particular, a 10 percent rating will be assigned where there is FEV-1 of 71-to 80 percent predicted, or FEV-1/FVC of 71 to 80 percent, or DLCO (SB) of 66-to 80 percent predicted. A 30 percent rating will be assigned where there is FEV-1 of 56-to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or DLCO (SB) of 56-to 65 percent predicted. A 60 percent rating will be assigned where there is FEV-1 of 40-to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or DLCO (SB) of 40-to 55 percent predicted; or whether there is maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating will be assigned where there is FEV-1 less than 40 percent of predicted value, or the FEV-1/FVC is less than 40 percent, or DLCO (SB) is less than 40-percent predicted; or where there is maximum exercise capacity of less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or cor pulmonale (right heart failure), or right ventricular hypertrophy, or pulmonary hypertension (shown by Echo or cardiac catheterization), or episode(s) of acute respiratory failure, or required outpatient oxygen therapy. Similar rating criteria to Diagnostic Code 6845 also are found under Diagnostic Code 6604 for rating COPD. See 38 C.F.R. § 4.97, Diagnostic Code 6604 (2012). Notes to the General Rating Formula for Restrictive Lung Disease provide further rating guidance. Note (1) provides that a 100 percent rating shall be assigned for pleurisy with empyema, with or without pleurocutaneous fistula, until resolved. Note (2) provides that, following episodes of total spontaneous pneumothorax, a rating of 100 percent shall be assigned as of the date of hospital admission and shall continue for three months from the first day of the month after hospital discharge. Note (3) provides that gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion shall be rated at least 20 percent disabling. Disabling injuries of shoulder girdle muscles (Groups I to IV) shall be separately rated and combined with ratings for respiratory involvement. Involvement of Muscle Group XXI (Diagnostic Code 5321), however, will not be separately rated. 38 C.F.R. § 4.97. The post-bronchodilator findings for these pulmonary function tests (PFTs) are required when PFTs are done for disability evaluation purposes, except when the results of pre-bronchodilator PFTs are normal, or when the examiner determines that post-bronchodilator studies should not be done and states why. When evaluating based on PFTs, post-bronchodilator results are to be used in applying the criteria in the rating schedule, unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which cases the pre-bronchodilator values should be used. When there is a disparity between the results of different PFTs (FEV-1, FVC, etc.), so that the evaluation would differ depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability should be used. If the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation should not be assigned based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96. The handwriting in private treatment records dated from April 2009 to March 2011 from Dr. K.M., the Veteran's private internist, is nearly illegible. However, printed matter in these records indicates that the Veteran's respiratory system was often checked as normal or that his chest was clear during these treatment visits or that dyspnea was noted. A private medical record dated in late 2010 also noted a very bad bronchial cough. In correspondence dated in August 2012, Dr. K.M. noted that the Veteran had an asbestosis condition and still complained of coughing and spitting up large amounts of phlegm. Dr. K.M. indicated that the Veteran had not needed any surgical procedure at this time. A February 2009 chest X-ray study at VA showed numerous calcified pleural plaques. A VA medical record noted no increase in the Veteran's shortness of breath and an intermittent cough without recent change. In correspondence dated in November 2009, Dr. K.M. wrote that the Veteran was operated on in May 2008 for a pleural effusion due to asbestosis. Since that operation the Veteran had complained of increased coughing, spitting up of phlegm, and general tiredness due to his coughing. Dr. K.M. also stated that in his examination he had determined that there was increased pleural effusion. He also noted that the Veteran continued to suffer from complications of asbestosis. A September 2010 private X-ray study showed moderate volume pleural effusions right greater than left; pleural based opacities periphery right middle lobe, lingual, and bibasilar distribution; and smaller areas of pleural plaque with minimal calcifications in the upper lung zones. Private medical records dated from August 2010 to June 2012 from Dr. A.E.B., the Veteran's private pulmonologist, show complaints of dyspnea on exertion and treatment for bilateral effusions, acute bronchitis, and cough. The Veteran had no chest pains, sweats, chills, or syncope and there was no clinical indication of congestive heart failure. An October 2011 medical record noted that the Veteran was relatively asymptomatic. In correspondence dated in August 2012, Dr. A.E.B. stated that the Veteran had underlying asbestosis with asbestos-related pleural effusions. He noted that the Veteran continued to complain of shortness of breath and had a persistent cough which was productive of clear sputum on nearly a daily basis. An October 2010 private medical record revealed a thoracentesis wherein 350 cc. of dark red clotted fluid was removed. No clearly malignant cells were seen in the specimen. A November 2010 VA medical record noted that the Veteran still had dyspnea on exertion but not as bad as in October. His lungs were noted as slightly decreased on the right base, but otherwise clear. Assessment was asbestosis, a history of loculated pleural effusion, and status post diagnostic tap with no malignant cells seen. A December 2010 private chest X-ray showed continued evidence of extensive bibasilar pleural disease compatible with loculated pleural effusions and/or other underlying pleural pathology. The Veteran underwent a VA respiratory examination in December 2010. The Veteran complained that he was constantly coughing and spitting up sputum and was dizzy on mild exertion. He denied any history of hypertension, syncope, or angina. On examination, his respiratory rate was 20 and there was no evidence of congestive heart failure or pulmonary hypertension or cor pulmonale. Pulmonary examination revealed decreased sounds for left and right abnormal breath sounds. There was no indication of asthma. Chronic pleural effusion or fibrosis was noted as a condition that may be associated with pulmonary restrictive disease. A January 2009 chest X-ray was noted which showed left pleural effusion while the heart appeared normal. No separate PFT was undertaken at the time of the December 2010 VA examination. Instead, the examiner reprinted in his report the results of the January 2009 PFT. This showed a normal spirometry and that a post-bronchodilator test was not indicated. The January 2009 PFT demonstrated a FVC of 86 percent of the predicted result without a bronchodilator and a DLCO (SB) of 92 percent of the predicted result without a bronchodilator. FEV-1 was 94 percent of predicted value without a bronchodilator and FEV-1/FVC was 83 percent. The January 2009 VA examiner had stated that the FVC results reflected a mild restrictive lung defect, but no obstructive lung defect, and that the DLCO results reflected a diffusion capacity within normal limits. Diagnosis was asbestosis. An April 2011 VA medical record noted that the Veteran had a chronic productive cough to yellow phlegm, chronic chest congestion, occasional wheezing, and chronic shortness of breath on slight exertion. Impression was COPD/asbestosis, history of loculated pleural effusion, and status post diagnostic tap with no malignant cells seen. The Veteran underwent a VA respiratory examination on June 17, 2011. The Veteran complained that he was feeling worse and that he gagged two to three times a day because of mucus at the throat. He said that he walked and moved slow because he got tired very easily. It was noted that he was treated with an oral bronchodilator intermittently, but his treatment response was poor and his symptoms were unimproved or were worse. He endorsed a positive history of non-productive and productive cough, dyspnea on mild exertion, and night sweats. On examination, respiratory rate was 18 and there was no evidence of pulmonary hypertension. There were signs of congestive heart failure, such as cardiomegaly, peripheral edema in the legs, and pleural effusion. A pulmonary examination revealed decreased sounds with right and left abnormal breath sounds. There was no indication of asthma attacks, but chest expansion was slightly limited. Chronic pleural effusion or fibrosis was listed as a condition that could be associated with a pulmonary restrictive disease. A chest X-ray study showed a persistent left-sided pleural effusion and a moderate right-sided pleural effusion (which was a new development). Impression was chronic obstructive pulmonary disorder (COPD). Results of a cardiac stress test showed no significant symptoms or ECG changes diagnostic of ischemia. A July 2011 PFT showed no obstructive lung defect by the FEF-1/FVC ratio, but a moderate restrictive lung defect. While the PFT results were not republished in the report of the June 2011 VA respiratory examination, they are found elsewhere in the claims file. They show the FVC was 58 percent of predicted value post-bronchodilator and FEV-1 was 70 percent of predicted value post-bronchodilator. There were no diffusion readings. The respiratory therapist stated in a July 2011 note that the Veteran gave his best efforts and tried the diffusion four times, but could not follow instructions. Diagnosis was COPD. The June 2011 VA examiner noted that the Veteran easily felt short of breath on mild exertion and moved slow to avoid shortness of breath. The Veteran told the examiner that he had learned to take his time in doing anything and when getting short of breath he stopped to rest momentarily. A July 2011 private X-ray study showed bilateral pleural effusion and/or pleural thickening pattern, right greater than left, which was similar to an earlier examination. In a November 2011 addendum, a VA pulmonologist stated that the Veteran gave his best efforts during the July 2011 PFT and tried the diffusion test four times, but could not follow instructions. Pulse oximetry measured a 95 percent oxygen saturation level. The July 2011 PFT results were then given to include, as noted above: FVC was 58 percent of predicted value with bronchodilator and FEV-1 was 70 percent of predicted value with bronchodilator. In signed correspondence dated in August 2012, the Veteran explained that he saw both Dr. K.M. and Dr. A.B. on a regular basis, which he described as every three to four months since visits in 2009, and that there had been no change in his condition that had required a medical procedure. He said that he still had choking, coughing spells many times a day, and that he spit up large quantities of phlegm. The Veteran underwent a VA examination in October 2012. The Veteran complained of chronic morning productive cough and dyspnea with moderate exertion, including walking up stairs. He denied chest pain. His respiratory condition did not require the use of oral or parenteral corticosteroid medications or inhaled medications or oral bronchodilators or outpatient oxygen therapy. An October 2012 chest X-ray study showed no significant change with the chest X-ray of June 2011 and that the lung fields showed COPD. There were also chronic bilateral loculated pleural effusions. Diagnoses included a restrictive lung disease and a pleural disease. A November 2012 PFT showed FVC was 57 percent of predicted value pre-bronchodilator, FEV-1 was 63 percent of predicted value pre-bronchodilator, FEV-1/FVC was 84 percent pre-bronchodilator, and DLCO was 46 percent of predicted value pre-bronchodilator. The VA examiner noted that post-bronchodilator testing had not been completed because such was not indicated for the Veteran's condition. In addition, the figures for the DLCO, the FVC and the FEV-1 were all decreased. The VA examiner explained that the FEV-1/FVC result, used to rate under Diagnostic Code 6604 or Diagnostic Code 6845 rather than Diagnostic Code 6833, most accurately reflected the Veteran's level of disability. The October 2012 VA examiner opined, in response to a question from the Board, that the reason for the change in PFT measurements between January 2009 and June 2011 was uncertain and might likely reflect effort-dependent variation. Her review of the record did not reveal evidence of fluctuation in the severity of the Veteran's service-connected lung disorder during this time frame. Rather, in the opinion of the October 2012 VA examiner, the record documented the stability of the underlying pulmonary restrictive lung disease from January 2009 to the eve of the June 2011 VA examination when an increase was documented. A December 2012 VA medical record noted that the Veteran had chronic shortness of breath on exertion and complained of chest congestion, but denied palpitations, dizziness, orthopnea, paroxysmal nocturnal dyspnea, and chest pains. He had chronic chest congestion and productive cough to yellow phlegm from COPD/asbestosis, but denied wheezing. Based on the evidence of record, the Board finds that a compensable rating for asbestosis is not warranted for the period from January 21, 2009 to June 16, 2011. At the outset, the Board notes that in addition to asbestosis, the medical evidence reflects diagnoses of pleural effusions and COPD. Where it is not possible to distinguish the effects of a nonservice-connected condition from those of service-connected conditions, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). As the rating criteria pertaining to the evaluation of asbestosis are largely dependent on clinical findings made upon PFT, to the extent that diagnosed conditions other than asbestosis have had an impact or effect on relevant PFT, or have crossover symptoms pertinent to the rating criteria which cannot be distinguished from the symptoms associated with asbestosis, the symptoms of all diagnosed disorders will be considered in conjunction with the increased rating claim for asbestosis. The January 2009 PFT examination results demonstrate that the Veteran did not meet or approximate the criteria for a 10 percent rating pursuant to Diagnostic Code 6833. The competent PFT results for this period of the appeal did not show FVC or DLCO (SB) less than 80 percent predicted, so as to warrant a 10 percent rating under Diagnostic Code 6833. See 38 C.F.R. § 4.97, Diagnostic Code 6833. Rating under alternative diagnostic codes, such as Diagnostic Code 6604 for rating COPD or Diagnostic Code 6845 for chronic pleural effusion, does not avail the Veteran because the January 2009 PFT found in the claims file for this time period also does not meet the rating criteria for a higher, or 10 percent, rating under these codes. Moreover, the evidence during this period demonstrates that Veteran did not manifest any increased symptomatology that required re-evaluation of PFTs by any private provider during this period. The record establishes that the Veteran was being seen regularly, so the private records are persuasive evidence that the Veteran did not report increased symptoms or complaints. The opinion rendered by the examiner who provided October 2012 VA examination is also persuasive evidence that the Veteran's pulmonary disease was stable during this period. The examiner who provided that opinion discussed all of the relevant evidence for the period, and provided a rationale for the opinion. The Board finds this opinion highly persuasive evidence against an increased rating during this time period. The evidence establishes, during this time period, that the Veteran did not require outpatient oxygen therapy because of his service-connected lung disability, and there is no medical evidence that his maximum exercise capacity meets the criteria for 60 percent or 100 percent disability ratings. The record does not reflect that the Veteran has cor pulmonale or pulmonary hypertension associated with asbestosis, or that the condition requires oxygen therapy. Therefore, under the circumstances of this case, the Board finds that the preponderance of the evidence of record regarding the Veteran's asbestosis does not support the assignment of a compensable rating for the period from January 21, 2009 to June 16, 2011. See 38 C.F.R. §§ 4.96-4.97. As the criteria for the next higher, or 10 percent, rating are not met, it follows that the criteria for even higher ratings likewise are not met. In sum, the Board finds that the noncompensable initial disability rating is appropriate for continuation during the period from January 21, 2009 to June 16, 2011. A staged rating is not warranted during this time period, as there appears to be no time during this period where the Veteran's asbestosis manifested symptoms meriting a compensable disability rating. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The Veteran's claim for an initial compensable disability rating for asbestosis for the period from January 21, 2009 to June 16, 2011, is denied. Based on the evidence of record, the Board also finds that a rating in excess of 60 percent for asbestosis is not warranted for the period from June 17, 2011. The July 2011 and November 2012 PFTs utilized in the June 2011 and October 2012 VA respiratory examinations, respectively, did not yield results that meet or approximate the criteria for a 100 percent rating pursuant to Diagnostic Code 6833. The competent PFT results for this period of the appeal did not show FVC less than 50 percent predicted or DLCO (SB) less than 40 percent predicted, so as to warrant a 100 percent rating under Diagnostic Code 6833. See 38 C.F.R. § 4.97, Diagnostic Code 6833. Rating under alternative diagnostic codes, such as Diagnostic Code 6604 for rating COPD or Diagnostic Code 6845 for chronic pleural effusion, does not avail the Veteran because the PFTs for this time period also do not meet the rating criteria for a higher, or 100 percent, rating under these codes. Moreover, there is no evidence during this post-June 2011 period that the Veteran requires outpatient oxygen therapy because of his service-connected lung disability, and there is no medical evidence that his maximum exercise capacity meets the criteria for a 100 percent disability rating. The record does not reflect that the Veteran has cor pulmonale or pulmonary hypertension associated with asbestosis, or that the condition requires oxygen therapy. Therefore, under the circumstances of this case, the Board finds that the preponderance of the evidence of record regarding the Veteran's asbestosis does not support the assignment of a rating in excess of 60 percent for the period from June 17, 2011. See 38 C.F.R. §§ 4.96-4.97. In sum, the Board finds that the 60 percent disability rating is appropriate during the period from June 17, 2011. A staged rating is not warranted during this time period, as there appears to be no time during this period where the Veteran's asbestosis manifested symptoms meriting a higher disability rating. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. at 58. The Veteran's claim for a rating in excess of 60 percent for asbestosis for the period from June 17, 2011, is denied. Conclusion The Board notes that the Veteran is competent to report the symptomatology associated with his disability. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (explaining that the Board is obligated to, and fully justified in, weighing the credibility of lay evidence); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (explaining that a veteran is competent to report that on which he or she has personal knowledge). However, the Veteran's lay evidence, while credible, is not persuasive in the matter of his higher staged rating claims as the more probative and definitive evidence prepared by objective skilled professionals demonstrates that the criteria for higher ratings for asbestosis or pleural effusions or COPD have not been met. The Veteran has presented lay statements relating to the severity of his asbestosis, particularly manifested by dyspnea and difficulty breathing. A layperson is generally competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., experiencing or observing pain in the feet and shortness of breath). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Essentially, the Veteran is competent to provide the aforementioned information regarding his symptoms and such information is credible. However, in this case, there is no basis for assignment of any higher schedular rating for a lung disability in either time period on appeal, based on consideration of both the lay and clinical evidence. The Board reiterates that the applicable rating criteria relating to asbestosis and pleural effusions and COPD are largely predicated on specific clinical findings and manifestations, which are essentially beyond the competency of the Veteran to determine himself. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Finally, the Board has also considered whether the factors for extra-schedular consideration are present under 38 C.F.R. § 3.321(b)(1). In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. In this case, there has been no showing that the Veteran's lung disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. The Veteran's lung impairment measurements were applied to mechanical application tables for asbestosis and pleural effusions and COPD pursuant to the applicable criteria as authorized by associated statutes, regulations, and caselaw. Given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's lung disability picture includes exceptional factors. In addition, interference with employment will be explored in the remand requested below for the development of a TDIU claim associated with these higher rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Referral for consideration of the assignment of a disability evaluation on an extra-schedular basis, therefore, is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER For the period from January 21, 2009 to June 16, 2011, entitlement to a compensable rating for asbestosis is denied. For the period from June 17, 2011, entitlement to a rating in excess of 60 percent for asbestosis is denied. REMAND Unfortunately, a remand is required for the remaining issues on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). As noted in the Introduction above, in a January 2013 rating decision the Veteran was granted service connection and awarded an initial noncompensable disability rating for a healed surgical scar, status post left thoracic pleurodesis. The AMC informed the Veteran, in the January 2013 rating decision, that the decision regarding service connection, effective date, and rating for a scar, was ancillary to the issues on appeal and was regarded as inextricably intertwined with the appellate issues. The AMC specifically advised the Veteran that no further action was required on the part of the Veteran. This notification had the effect of preventing the Veteran from submitting any further appeal of the newly-rated scar issue. The notice to the Veteran that no further action was required on his part is, in effect, a recognition by VA that the issue has already been appealed. Therefore, the Board finds that the noncompensable scar rating is on appeal, and that the Veteran has implicitly filed a Notice of Disagreement for this issue because he has maintained consistently through the course of his appeal that he seeks a higher rating for his service-connected asbestosis and service connection was granted for the surgical scar in connection with his appeal for a higher rating for his asbestosis. There is as yet no Statement of the Case (SOC) responding to the Veteran's effort to appeal this claim. Thus, the Board must remand this issue for the issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Concerning the Veteran's claim for a TDIU, as was briefly noted in the Introduction section above, the issue of entitlement to a TDIU is raised by the record as part and parcel of the Veteran's higher rating claim for his asbestosis. See Rice, 22 Vet. App. at 447. The October 2012 VA examiner indicated that the Veteran's asbestosis impacted his ability to work and the Veteran's representative, in his March 2013 brief, has requested a remand for an opinion from a respiratory specialist to determine whether the Veteran could obtain and maintain substantially gainful employment. The evidence of record indicates that the Veteran is now retired, but that he worked as a barber post-service. The evidence is ambiguous as to whether any present or future unemployment would be due solely to the Veteran's service-connected disabilities. As the RO has not considered the TDIU aspect of this claim, the matter is remanded to the agency of original jurisdiction for consideration thereof in the first instance. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The Board notes that since the Veteran was awarded a 60 percent disability rating in 2012 for his asbestosis his combined disability rating now totals 80 percent and he meets the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a) (2012). Therefore, in view of the holding in Rice, the Board will bifurcate the TDIU claim and adjudicate it separately from the higher rating claims decided above. Further, there is insufficient medical evidence to determine if the criteria for a TDIU are met in this case. As noted above, the Veteran was last examined for his service-connected asbestosis in October 2012. At that time the VA examiner proffered no formal opinion as to whether the Veteran was unable to secure and follow a substantially gainful occupation by reason of any of his service-connected disabilities. The Board cannot currently determine, based on the medical evidence found within the claims file, whether the Veteran is unable to secure and follow substantially gainful employment by reason of his service-connected disabilities. As such, the Board has determined that it must remand this issue in order to determine whether the Veteran could be entitled to an award of TDIU. See Rice, 22 Vet. App. at 453. As the RO has not considered the TDIU aspect of this claim, the matter is remanded to the RO/AMC for consideration thereof in the first instance. On remand, an additional VCAA notice letter should be sent to the Veteran for this issue. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran and his representative with a letter pertaining to his TDIU claim that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter shall explain what information or evidence (medical or lay) is necessary to substantiate the TDIU element of the Veteran's claim. It shall indicate the information and evidence that is to be provided by the Veteran, including a formal application form and an employment information form, and what information VA will attempt to obtain on his behalf. It also shall include information concerning the assignment of disability ratings and effective dates. 2. The RO/AMC shall re-examine the Veteran's claim of entitlement to an initial compensable rating for a healed surgical scar, status post left thoracic pleurodesis, and take such additional development action as it deems proper. Thereafter, the RO/AMC shall prepare a Statement of the Case in accordance with 38 C.F.R. § 19.29, unless this claim is resolved by granting the benefit sought, or by the Veteran's withdrawal of any Notice of Disagreement. If, and only if, the Veteran files a timely VA Form 9, Substantive Appeal should this issue be returned to the Board. 3. Thereafter, review the Veteran's claims file and take such additional development action as deemed proper with respect to the claim for a TDIU, including the conduct of an appropriate VA employability examination and/or social and industrial surveys. 4. After all development has been completed, adjudicate the Veteran's TDIU issue. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ TRESA M. SCHLECHT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs