Citation Nr: 1325372 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-41 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a respiratory disability, including chronic obstructive pulmonary disease, emphysema, and asbestosis, to include as due to exposure to asbestos. 2. Entitlement to a total rating based on individual unemployability. ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served in the National Guard from May 11, 1958 to November 10, 1958, and served on active duty from December 30, 1959 to May 1, 1961. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Albuquerque, New Mexico (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The Veteran's service treatment records are negative for complaints of respiratory symptoms, or a diagnosed respiratory disability; his service personnel records reflect that his Military Occupational Specialty was Wheeled Vehicle Mechanic. 2. A respiratory disability is currently diagnosed. 3. The competent evidence of record does not relate any current respiratory disability to service, to include inservice exposure to asbestos. 4. Service connection has not been granted for any of the Veteran's disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disability, to include as due to exposure to asbestos, have not been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for entitlement to a total rating based on individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to the initial adjudication of the claims, the RO's February 2010 letter advised the Veteran of the elements of a claim for service connection. See Quartuccio, 16 Vet. App. at 187; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, including the opportunity to present pertinent evidence. Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has been satisfied. The RO has obtained the Veteran's service treatment and personnel records, his VA and private treatment records, and the documentation associated with his application for disability benefits from the Social Security Administration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. Additionally, the Veteran was provided a VA examination in February 2013. Because the examiner indicated that the Veteran's claims file was not contemporaneously reviewed, the RO obtained another medical opinion in March 2013. In a June 2013 statement, the Veteran asserted that the February 2013 VA examination lasted for only 30 to 35 minutes, during which the examiner only checked his breathing. He stated that he was not required to get out of his wheelchair. Viewed together, the February and March 2013 examiners thoroughly reviewed the Veteran's relevant treatment records, considered the Veteran's statements, and administered a clinical examination, all of which allowed for a fully-informed evaluation of the claimed disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on the above, and for additional reasons discussed below, the Board finds that the Veteran has been provided an adequate examination despite his assertions otherwise. The Veteran was not provided a VA examination pursuant to his claim of entitlement to TDIU because service connection is not in effect for any of the Veteran's disabilities. Therefore, providing the Veteran a VA examination is not required in order to satisfy VA's duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; 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); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In November 2009, the Veteran submitted his claims, which were denied in an April 2010 rating decision. He then perfected an appeal of these issues to the Board. In January 2013, the Board remanded the Veteran's claims for further development. Specifically, the Board directed the RO to obtain the Veteran's treatment records from the VA clinic in El Paso, Texas, dated on and after November 21, 2011. The Board also directed the RO to afford the Veteran a VA examination in order to ascertain the nature and etiology of any respiratory disability present. The Board stated that the VA examination "should" be administered by a pulmonologist. While the Veteran's claims were in remand status, the RO requested and obtained the Veteran's treatment records, dated on and after November 21, 2011, from the VA Community-Based Outpatient Clinic in Las Cruces, New Mexico, and the VA Outpatient Clinic in El Paso, Texas. These records were associated with the Veteran's Virtual VA claims file. In February 2013, the Veteran underwent a VA respiratory examination. Although the examiner did not indicate his credentials in the resulting report, independent research revealed that the examiner was Board Certified in Family Practice. The examiner administered a thorough clinical evaluation and provided opinions as to the salient questions presented by the Veteran's service-connection claim. The examiner indicated that the Veteran's claims file was not contemporaneously reviewed. Consequently, the Veteran's claims file, including the results of the February 2013 VA examination, was made available to another examiner. In March 2013, the second examiner provided a through opinion after reviewing the Veteran's claims file, including citing relevant treatment reports and clinical findings. The second examiner indicated that she was a Doctor of Podiatric Surgery. As discussed above, the Board found the February and March 2013 opinions were adequate for purposes of adjudicating the Veteran's claim. Although the Board's remand instruction indicated that a pulmonologist "should" administer the scheduled VA examination, the Board did not make it a requirement. Moreover, neither the February 2013 nor the March 2013 examiner indicated that the questions presented by the Veteran's claim were beyond the scope of their respective areas of competence. The RO readjudicated that the Veteran's claims, continuing and confirming the denials, and then issued the Veteran a March 2013 supplemental statement of the case. The Veteran's appeal was then remitted to the Board for further appellate review. In May 2013, the Board determined that the March 2013 supplemental statement of the case was sent to an incorrect mailing address. As such, the Board remanded the Veteran claims in order for the RO to issue the Veteran another supplemental statement of the case. The Board instructed the RO to provide the Veteran with an adequate opportunity to respond to the supplemental statement of the case, then return the Veteran's claim to the Board. In May 2013, the RO sent the Veteran a supplemental statement of the case to the correct mailing address of record. The Veteran then waived the 30-day wait period and asked that his claims be returned to the Board for appellate review. Based on the above, the Board finds that the RO substantially complied with the directives of the January and May 2013 remands and, thus, a remand for corrective action is not required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, the Board will address the merits of the Veteran's claims herein. I. Lung Disability, to Include as Due to Exposure to Asbestos Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). There has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Rather, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular) that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular has subsequently been subsumed verbatim as § 7.21 of VA manual ADMIN21. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The manual notes that lung cancer associated with asbestos exposure originates in the lung parenchyma rather than the bronchi. Neither manual M21-1 nor the circular creates a presumption of exposure to asbestos solely on the military occupational specialty. Rather, they are guidelines that serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in personnel with specific occupations. They direct that the raters develop the record, ascertain whether there is evidence of exposure before, during, or after service, and determine whether the disease is related to the putative exposure. Dyment v. West, 13 Vet. App. 141 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4-2000. In his November 2009 claim, the Veteran stated that his Military Occupational Specialty was Mechanic, and that the rigors of this occupation exposed him to "old oil" and brake parts. The Veteran further stated that he worked in a "shed" that was insulated with asbestos while he was stationed in Korea. The Veteran essentially asserted that these experiences resulted in a current respiratory disability. The Veteran's service personnel records demonstrated that he was deployed to Korea in November 1960 and returned in May 1961. His personnel records further demonstrated that he served as a Wheeled Vehicle Mechanic from April 27, 1960 to December 23, 1960, and a Wrecker Operator on and after December 23, 1960. Prior to serving in these capacities, the Veteran underwent training as an Artillery Gun Crewman. An April 1958 enlistment examination did not demonstrate that the Veteran complained of or reported a history of a respiratory disability or symptoms thereof. Clinical evaluation did not result in any abnormal findings beyond the identification of a small scar from an "old burn." A PULHES profile demonstrated that the Veteran was assigned a score of 1 in each of the respective categories. The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). In a contemporaneous report of history, the Veteran provided affirmative responses to a history of mumps and whooping cough, but denied asthma, shortness of breath, chest pain or pressure, and a chronic cough. In October 1958, the Veteran underwent a service separation examination. There was no indication that the Veteran complained of or was treated for a respiratory disability. Clinical evaluation did not yield any abnormal results, with the exception of two tattoos. Significantly, the Veteran's "lungs and chest" were deemed clinically normal. Further, a PULHES profile reflected scores of 1 for each of the respective categories. Id. In a contemporaneous report of medical history, the Veteran reported that he was in "good health." Further, he denied that he then experienced or ever experienced any symptoms relevant to a respiratory disability, including asthma, shortness of breath, pain or pressure in chest, and chronic cough. According to a December 1959 DA Form 20 Enlisted Qualification Record, the Veteran reported that he worked for 12 months as a civilian sheet metal worker, fabricating and installing heating ducts and pipes in houses; cutting, shaping, and assembling duct work; and riveting, banding, or soldering joints. In December 1959, the Veteran underwent an enlistment examination. There was no indication that the Veteran complained of or reported a history of a respiratory disability or symptoms related thereto. Clinical evaluation was normal with the exception of a mild left varicocele and mild acne on his shoulders. Each aspect of a PULHES profile was scored 1. A December 1959 report of medical history demonstrated that the Veteran denied then or ever experiencing symptoms of a respiratory disability, including asthma, shortness or breath, chest pain or pressure, and a chronic cough. A December 1960 treatment report showed that the Veteran complained of palpitations and anxiety and, the previous night, observed a pain in his left chest that radiated up to his left shoulder. Upon physical examination, the Veteran's chest was clear. The impression was "anxiety." In April 1961, the Veteran underwent a separation examination. The Veteran did not complain of or received treatment for a respiratory disability or symptoms related thereto. Further, there was no indication that the Veteran reported that he was exposed to chemicals or asbestos during this period of service. With the exception of "psychiatric," clinical evaluation demonstrated that each of the Veteran's reviewed systems was normal, including, significantly, his "lungs and chest." The psychiatric abnormality concerned enuresis, which was elaborated upon in a February 1961 consultation sheet. On a PULHES profile, the Veteran was scored 1 on each aspect except psychiatric, which was scored 4. Id. In a contemporaneous report of medical history, the Veteran did not provide responses as to whether he was then or had ever experienced symptoms associated with a respiratory disability. However, the balance of the report did not indicate any complaints of a respiratory disability or symptoms related thereto, to include in the physician's summary section, which was wholly concerned with expounding upon the Veteran's psychiatric enuresis. September 2001 X-rays of the Veteran's chest (primarily to assess the Veteran's spine) revealed calcified granulomata in both lung bases and hyperinflation, but his lungs were clear. A July 2003 VA treatment record showed that the Veteran endorsed a 44-year history of smoking 1-pack of cigarettes per day. The assessment was, in relevant part, tobacco use disorder. A February 2008 VA treatment report demonstrated that the Veteran stated that he felt more short of breath, but denied chest pain. A physical examination yielded positive results for wheezing and "course breath sounds" throughout his lung fields. The assessment was chronic obstructive pulmonary disease. Findings from a contemporaneous February 2008 VA radiological examination of the Veteran's chest resulted in impressions of remote granulomatous disease involving the perihilar region of both the right and left lung and chronic obstructive pulmonary disease. No etiological opinion was rendered. In May 2009, the Veteran underwent a VA chest consultation. His chief complaint was dyspnea. During the consultation, the Veteran reported that his symptoms onset in February 2008, after being hospitalized for abdominal aortic aneurysm repair. He claimed that he became short of breath and that he was "hardly able to do anything." Since then, the Veteran stated that he has been on oxygen and that his condition has steadily deteriorated. The examiner stated that his respiratory symptoms have been linked to his past medical history of smoking cigarettes, but the Veteran insisted that something was "done to him" during his hospitalization. After a review of the Veteran's past medical and family histories, the Veteran stated that he worked as an electrician and mechanic in refineries in the 1980s and 1990s. He stated that he worked around insulated pipes, but did not do installations, and was not present when installations occurred. He further stated that he was not exposed, as far as he knew, to asbestos or silica. He then stated that he started smoking cigarettes at age 17 or 18 years old, and smoked 1 to 1.5 packs of cigarettes for at least 50 years. The examiner stated that this represented somewhere between 50 and 75 pack/year history of cigarette smoking. At the time of this consultation, the Veteran endorsed continued smoking, but reduced to less than half of a pack per day. After a physical examination, the examiner reviewed April 2009 X-rays that showed hyperinflated lungs suggestive of mild emphysema, but were negative for infiltrates. The examiner then indicated that the Veteran underwent complete pulmonary function studies in March 2008. These studies revealed "severe" obstructive airways disease with significant improvement following bronchodilator. The impression was severe obstructive pulmonary disease with a major component of emphysema, but also with a significant component of chronic bronchitis, "most likely secondary to cigarette smoking." June 2009 VA treatment reports demonstrated that the Veteran reported stopping smoking. The Veteran's current problem was indicated to be "severe" chronic obstructive pulmonary disease, "mixed." An August 2009 VA treatment showed that the Veteran endorsed serving in Korea for 1 year, during which he was assigned to the "clean-up crew." Following his military discharge, the Veteran reported that he worked as an electrician for refineries and the automotive industry. He retired in 2001 due to back problems. According to an October 2009 VA treatment report, the Veteran's problems were listed as chronic obstructive pulmonary disease, mixed, and cigarette smoker. The Veteran stated that he had not smoked in approximately 3 months, but that he had exhausted his supply of nicotine patches. A November 2009 VA treatment showed that the Veteran complained of severe lung pain that traveled to his back. The assessment was severe chronic obstructive pulmonary disease. In a February 2010 statement, the Veteran reported that his doctors told him that his lung capacity was down to 13 percent due to chronic obstructive pulmonary disease. He requested that the VA contact the contractors who constructed the "huts" that he lived in while stationed in Korea, and who built the motor pool building, presumably to ascertain whether asbestos was used therein. In a February 2010 VA Form 21-8940, the Veteran reported that he worked as an automobile mechanic and electrician following his active duty service, stopping in 2004 due to spinal surgery. A May 2010 VA pulmonary treatment note demonstrated that Veteran complained of becoming very short of breath with any kind of physical activity. After an examination, the doctor reviewed April 2009 X-rays that showed hyperinflation of the lungs suggestive of emphysema. The problems were severe chronic obstructive pulmonary disease, mixed; superimposed volume restrictive process, "probably asbestosis"; and a history of cigarette smoking. This doctor repeated these diagnoses in November 2010. In his May 2010 notice of disagreement, the Veteran stated that an unnamed entity found asbestos in brake linings and that he worked on many tires and brakes during his military service as a Wheeled Vehicle Mechanic. He further stated that he "believed" that there was asbestos in the building where he lived during his service in Korea. He then asserted that his current chronic obstructive pulmonary disease "began while [he was] in service." In September 2011, the Veteran underwent a VA examination. The Veteran asserted that he was exposed to asbestos while working as a mechanic in the motor pool during his military service. He reported that he was initially diagnosed with chronic obstructive in 2007. The examiner observed that the Veteran had been a "heavy" smoker for "many years," specifically indicating that a 1 to 1.5 pack-per-day habit. Pulmonary function testing resulted in an impression of severe restrictive lung defect and a severe decrease in diffusing capacity. A computed tomography scan of the Veteran's chest resulted in an impression of chronic obstructive pulmonary disease, emphysema, and emphysematous bullous changes; however, there were no pleural plaques or pleural calcification "that may be related to pulmonary asbestosis exposure." Ultimately, the diagnosis was severe chronic obstructive pulmonary disease secondary to heavy cigarette smoking. Pulmonary asbestosis was not found. The examiner then opined as follows: The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. ... The [computed tomography] Chest Scan...revealed that there are no pleural plaques or pleural calcifications that may be related to pulmonary asbestosis involving this [Veteran]. The [computed tomography] Chest Scan is the Gold Standard for the diagnosis of pulmonary asbestosis in any patient, as noted in the Journal of The American Medical Association dated August 1, 2010. A September 2011 private plethysmography report demonstrated a diagnosis of chronic obstructive pulmonary disease. The interpretation of the results of was that there was a severe restrictive lung disease; that an obstructive lung defect was confirmed by increased residual volume and total lung capacity; and that there was a severe decrease in diffusing capacity. A November 2011 VA treatment report demonstrated that the Veteran complained of exertional dyspnea. After an interview and a review of the recent clinical results, including the September 2011 computed tomography scan, the assessment was chronic obstructive pulmonary disease, severe, and "[history] of asbestos exposure [in] active duty [with] [computed tomography] of chest [revealing] evidence of asbestos related changes." In a January 2012 statement, the Veteran questioned the September 2011 examiner's ability to interpret the computed tomography scan. He also stated that he called other medical care providers and asked if a gold standard computed tomography scan existed, to which he received negative replies. In a March 2012 statement, the Veteran re-asserted that he believed his current chronic obstructive pulmonary disease was incurred during his active duty service, reasoning that he "did not have any chest pains before that" and that "the first time [he] went to the clinic in Korea was for chest pains." According to February and March 2012 VA treatment reports, the Veteran reported that he sought treatment from a private medical care provider for increased shortness of breath. As demonstrated by the March 2012 treatment report, after clinical testing, the Veteran stated that the private doctor recommended that he see a pulmonologist to address "possible mesothelioma." The Veteran stated that he was exposed to asbestos during his military service. After a review of the Veteran's systems and laboratory test results, the assessment was, in part, chronic obstructive pulmonary disease and asbestosis. Private treatment reports demonstrated that the Veteran was hospitalized in December 2012 after experiencing shortness of breath, increased sputum production, and a cough. It was observed that the Veteran had a history of smoking and a longstanding history of chronic obstructive pulmonary disease. Upon discharge, the diagnoses were chronic obstructive pulmonary disease exacerbation and history of tobacco abuse, among others. In February 2013, the Veteran underwent a VA examination in order to ascertain the nature of any present respiratory disability and the etiology thereof. The examiner indicated that the current diagnoses were emphysema, chronic obstructive pulmonary disease, and chronic bronchitis. The Veteran reported that he was stationed in Korea during his military service. While in Korea, he claimed that he was housed in "Quonset huts" and worked in buildings, both with asbestos insulation. The Veteran then discussed his inservice and post-service occupation and his history of smoking. The examiner then reviewed the Veteran's relevant treatment history, including the findings from an April 2012 pulmonary consultation; December 2012 X-rays; the September 2011 computed tomography scan, and April 2012 pulmonary function testing. Ultimately, the examiner opined as follows: The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. ... [The] Veteran contends his asbestosis was caused by living and working in a Quonset hut with asbestos insulation, while stationed in Korea from 1959 to 1960. As the Korean was fought [from] 1950 [to] 1953, the Quonset huts would have been less than 10 years old. [The Veteran] describes the surface of the walls as being like dry wall or sheet rock. The relatively new building with hard surfaced walls is not likely to shed asbestos fibers. According to the US [Environmental Protection Agency] at [website omitted]. Generally, asbestos-containing materials that aren't damaged or disturbed are not likely to pose a health risk. Usually, the best thing to do is leave asbestos-containing materials alone if it is in good condition. Asbestos-containing material that is in good condition and will not be disturbed (by remodeling for example) will not release asbestos fibers. Asbestos-containing materials may release fibers when they are disturbed, damaged, removed improperly, repaired, cut, torn, sanded sawed, drilled or scraped. Keep an eye on asbestos-containing material and visually check them over time for signs of wear or damage. Presence of asbestos insulation in the Quonset Hut is questionable: A Pre-demolition Building Survey Report of a Quonset hut at the Fomer Ithaca Gun Manufacturing Facility in Ithaca[, New York] written in 2002 found at [website omitted] reported: Exterior walls: corrugated galvanized panels over a steel framework[.] Roof area: corrugated galvanized panels over a steel framework[.] Interior walls and ceilings: Drywall over the steel framework and then covered by a wood board sheathing in many areas. Flooring: Made of concrete, no basement[.] Heating system: None[.] Plumbing system: None[.] Window glazing: not sampled; assumed to be asbestos in poor condition[.] [Website omitted]: Kimsul looks like layerd [sic] creped paper and is impregnated with asphalt. It is not known to contain asbestos. It was manufactured from the early-mid 1930s through the early 1950s. It was first used in refrigerators, then car dashboards and train cars. It was also used by the US military during [World War II] and lined many Quonset huts assembled in cold climates. Note[:] [V]eteran's consultations noted his mechanic job had included scraping brake grinding, a procedure very likely to produce clouds of asbestos-containing dust. [The] Veteran's pulmonology consultations both Dr[.] Vasquez in 2010 and Dr[.] Sherer 17 Apr[il] 2012 described possible asbestosis with Severe [chronic obstructive pulmonary disease. High resolution [computed tomography] scan did not show plaques and calcifications consistent with asbestosis. Sandblasting, and radiation exposure are also more likely causes of any restrictive component to his disease than a relatively new Quonset hut which was less likely than not to have contained asbestos. In March 2013, the RO obtained another opinion from a VA examiner addressing the nature of any current respiratory disability and the etiology thereof. After reviewing the Veteran's claim file, including citing to specific treatment reports and clinical findings, the examiner opined that it was "less likely than not" that the a respiratory disability was "incurred [in], caused by, proximately due to or aggravated from his time in the military service." In support of this opinion, the examiner reasoned as follows: The Veteran was diagnosed with end-stage [chronic obstructive pulmonary disease], emphysema and pulmonary hypertension. Clinically, the subjective findings, to include radiographs, pulmonary function testing and clinical examination, clearly and unmistakable detailed clinical diagnoses of end stage pulmonary disease secondary cigarette smoking. Second, the radiographs, dated 11 September 2011, clearly and unmistakable observed lung lesions consistent with emphysema and [chronic obstructive pulmonary disease]. These observations were less likely as not consistent with plaques and pleural calcifications seen in asbestosis. Since radiographic evidence for the diagnosis of asbestosis is pathognomonic for plaques and pleural calcification, the evidence is not supportive of his history of possible asbestos exposure. Conversely, the radiological findings are diagnostic of pulmonary lesion consistent with [chronic obstructive pulmonary disease] and [emphysema.] Third, the Veteran's systolic blood pressures were consistently elevated. Clinically, this can be attributed to his pulmonary condition. As noted on the [pulmonary function tests], the Veteran's values were severely depressed with [values omitted]. Further, indications of severe lung obstruction and restrictive disease observed by [values omitted]. These values were extremely abnormal (low) and indicative of end stage [chronic obstructive pulmonary disease and emphysema. Furthermore, the Veteran's lung capacity for CO2...and CO3...transfer was severely compromised. Fourth, this Veteran is homeless. Overall, the clinical findings were as least as likely as not to be consistent with end-stage obstructive and restrictive lung disease to include [chronic obstructive pulmonary disease], emphysema and pulmonary hypertension. It was less likely as not that the clinical findings support a current diagnosis of asbestos. The current diagnosis of [chronic obstructive pulmonary disease], emphysema and pulmonary hypertension were as least as likely as not [capitalization omitted] to be caused by the Veteran's history of cigarette smoking rather than his exposure to asbestos. In my opinion, the Veteran's claimed lung conditions were less likely than not [capitalization omitted] incurred, caused by, proximately due to or aggravated from his time in military service. The Veteran has asserted that he was exposed to asbestos during his service in Korea consequent to the duties associated with his Military Occupational Specialty of Wheeled Vehicle Mechanic and as a result of being inside a Quonset hut. The evidence of record did not include any official documentation assessing the Veteran's inservice exposure to asbestos, the general potential for Wheeled Vehicle Mechanics to be so exposed, or general potential for exposure as a result of working or being housed within a Quonset hut. Although the Veteran asserted that the Quonset huts had asbestos installation (which he described as dry wall, wall board, or fiberglass), he did not provide an underlying basis for that assertion. Significantly, the February 2013 VA examiner reviewed literature that demonstrated the questionable presence of asbestos in the Quonset huts. Moreover, the February 2013 VA examiner indicated that, even if asbestos was present in the Quonset huts, in order for it to be health risk, the asbestos would have to be disturbed or damaged in order to release fibers. There was no indication that the alleged asbestos in the Quonset huts was disturbed or damaged during the Veteran's service. Further, the February 2013 VA examiner indicated that, at the time of the Veteran's service, the Quonset huts were less than 10 years old. The examiner explained that relatively new buildings with hard walls were unlikely to shed asbestos fibers. Based on the above, the Board finds that the preponderance of evidence is against finding that the Veteran was exposed to asbestos as a result of his presence in Quonset huts. With respect to his service as a mechanic, the Board finds that his statements are competent and credible evidence as to the presence of asbestos in the vehicles on which he worked and that he was exposed to asbestos as a result of his work on those vehicles. Given that the Veteran was trained, educated, and performed service as a mechanic during his service, the Board finds that the Veteran's statements are competent evidence as to the identification of asbestos in an automotive setting. As such, given the absence of contradicting evidence, the Board finds that the Veteran was exposed to asbestos during his service as a wheeled vehicle mechanic. The evidence of record demonstrated current diagnoses of chronic obstructive pulmonary disease, emphysema, chronic bronchitis, and pulmonary hypertension. With respect to asbestosis, the evidence of record included a single diagnosis of a superimposed volume restrictive process that was "probably asbestosis," dated in May 2010. The doctor that rendered this diagnosis reiterated it in November 2011. The Board finds that this opinion is speculative and cannot support the claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim); Bostain v. West, 11 Vet. App. 124, 127 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). Additionally, in November 2011, after reviewing the September 2011 computed tomography scan, a VA medical professional render an assessment of chronic obstructive pulmonary disease, severe, and history of asbestos exposure in active duty with computed tomography of chest revealing evidence of asbestos related changes. However, as discussed above, the September 2011 computed tomography scan found no pleural plaques or pleural calcification "that may be related to pulmonary asbestosis exposure." The November 2011 diagnosis was unexplained and unsupported by a rationale and appears to contradicted the actual findings generated by the September 2011 scan. Consequently, the Board finds that the November 2011 diagnosis is inadequate for purposes of establishing the current presence of asbestosis. Nieves-Rodriguez, 22 Vet. App. at 304; see Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). As for the diagnosis of mesothelioma, the evidence of record demonstrated that the Veteran reported that a private doctor recommended that he see a pulmonologist for "possible mesothelioma." Given the equivocal nature of this diagnosis, the Board finds that it is not adequate to establish the current presence of mesothelioma. Obert, 5 Vet. App. at 33; Bostain, 11 Vet. App. at 127; see also Warren, 6 Vet. App. at 6. The evidence of record was otherwise negative for a diagnosis of mesothelioma. Based on the above, the Board finds that the evidence of record does not include a competent diagnosis of asbestosis or mesothelioma and, thus, the Veteran's claim will be limited to consideration of those disabilities for which there are current, competent diagnoses. See Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (finding that a claimant's identification of the benefit sought does not require any technical precision but may satisfy this requirement by referring to a body part or system, i.e., cardiovascular, that is disabled or by describing symptoms of the disability). As such, the salient issue present by the Veteran's claim is whether a current respiratory disability (exclusive of asbestosis and mesothelioma) was incurred in or due to his military service, to include as due to his inservice exposure to asbestos. In this, and in other cases, the Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The only competent and probative etiological opinions of record were those of the February 2013 and March 2013 VA examiners, which were negative to the Veteran's claim. To the extent that the Veteran asserts that he has asbestosis or mesothelioma and/or that a current respiratory disability is related to his active duty service, including exposure to asbestos, the Board finds that the matter of the determination of the nature and origin of a respiratory disorder, where the credible evidence first demonstrates such disorders many years after service, is more suited to the realm of medical, rather than lay expertise. The precise determination of one diagnosis or etiology is too complex for a layperson to proffer a competent opinion, especially in the presence of other potential etiologies. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent diagnostic or etiological opinions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The assertions by Veteran do not constitute competent evidence of a diagnosis or etiology in this case. Accordingly, service connection for respiratory disability, including as due to exposure to asbestos, is not warranted as the most probative evidence shows that the Veteran's current respiratory disabilities are not related to his military service. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). In making this determination, the Board considered the Veteran's assertions that a current respiratory disability began during his active duty service. Specifically, the Veteran claimed that he was treated for chest pain during his active duty service, and that his chest pain was a symptom of a current respiratory disability. As determined above, the Board found that the record did not demonstrate that the Veteran had the ability, knowledge, or experience to provide competent diagnostic opinions. As such, his assertion that chest pains were a symptom of a respiratory disability is not competent evidence. Jandreau, 492 F.3d at 1377. Further, there was no indication in the Veteran's service treatment records that complaints of chest pain were associated with a respiratory disability. Indeed, as discussed above, the Veteran's service treatment records were silent as to complaints of or treatment for a respiratory disability. As a result of each of the clinical evaluations the Veteran underwent during his military service, his lungs and chest were deemed normal. Significantly, these findings were echoed in his April 1961 separation examination. Further, the Veteran uniformly indicated that he did not have a history of respiratory disabilities or symptoms thereof, as was documented in his reports of medical history. The post-service evidence of record did not demonstrate complaints of or treatment for a respiratory disability for more than 40 years following his discharge from military service. The post-service evidence of record also included several medical opinions that associated the Veteran's current respiratory disability/disabilities to his prolonged history of smoking cigarettes. Therefore, the Board finds that the Veteran's assertions that a current respiratory disability had its onset during his military service were contradicted by the other evidence of record and, thus, the Board finds that his statements are not credible evidence that a respiratory disability was present since service. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (noting that the credibility of statements may be impeached by inconsistent statements and consistency with other evidence). In a May 2010 statement, the Veteran asserted that his history of tobacco (claimed as an addiction to smoking cigarettes) started during his military service and continued thereafter. Specifically, the Veteran stated that the cigarettes were handed out to service members "like candy," and that addiction to them resulted. As such, the Board has also considered service connection for a respiratory disability based on the Veteran's inservice use of tobacco products. However, on July 22, 1998, the President signed into law a provision, codified at 38 U.S.C.A. § 1103, barring service connection claims submitted after June 9, 1998 that are based on a disease or injury that is attributable to inservice use of tobacco products. 38 C.F.R. § 3.300. The Veteran submitted the present claim of entitlement to service connection for a respiratory disability in November 2009. Thus, to the extent that the Veteran attributes a current respiratory disability on his inservice use of tobacco products, his claim is denied as a matter of law. Id. II. TDIU The Veteran claims that he is unable to secure or follow a substantially gainful occupation due to his disabilities. Generally, VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from securing or following a substantially gainful occupation consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purposes of determining whether one 60 percent disability or one 40 percent disability exists, the following are considered one disability: 1) disabilities of both upper or lower extremities, including the application of the bilateral factor; 2) disabilities from a common etiology or a single accident; 3) disabilities affecting a single body system; 4) multiple injuries incurred in action; or 5) multiple injuries incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to 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, and consideration is given to the veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran has no service-connected disabilities. Accordingly, the threshold criteria for consideration of entitlement to TDIU, to include on an extraschedular basis, are not met as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). There is no doubt to be resolved, and the claim is denied. ORDER Entitlement to service connection for a lung disability, to include as due to exposure to asbestos, is denied. Entitlement to TDIU is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs