Citation Nr: 1545155 Decision Date: 10/22/15 Archive Date: 10/29/15 DOCKET NO. 14-37 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for asbestosis. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Derek L. Hall, Attorney WITNESSES AT HEARING ON APPEAL The Veteran, his wife, and his son ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran had active duty service from October 1952 to April 1955. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In October 2014, the Veteran testified before a Decision Review Officer (DRO) at the RO. In February 2015, he testified at a videoconference hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. In an April 2015 decision, the Board granted an effective date of August 17, 2009, for the grant of service connection for asbestosis. The Board reopened and remanded a claim for service connection for hearing loss and remanded claims for an increased rating for asbestosis and a TDIU. In December 2014 and April 2015 rating decisions, the Agency of Original Jurisdiction (AOJ) granted service connection for tinnitus and hearing loss, respectively. The AOJ's grant of service connection for these issues constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, these matters are no longer in appellate status. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). In May 2015, the Board requested an advisory medical opinion from the Veterans Health Administration (VHA). The Veteran and his representative were sent a copy of the opinion and given 60 days to submit further evidence or argument. See 38 C.F.R. §§ 20.901, 20.903. In September 2015, the Veteran's son submitted a letter in response. This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing systems. Any future consideration of this Veteran's case must take into consideration the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's asbestosis is not productive of Forced Vital Capacity (FVC) of 65- to 74-percent predicted, where these measurements show a post-bronchodilator result poorer than the pre-bronchodilator result; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 56- to 65-percent predicted; cor pulmonale or pulmonary hypertension; or, the requirement of outpatient oxygen therapy. 2. The Veteran's hypoxemia, decreased exercise capacity, and need for outpatient oxygen therapy are attributable to his nonservice-connected chronic obstructive pulmonary disease (COPD). 3. The Veteran does not have one service-connected disability rated at 60 percent or more or multiple service-connected disabilities of which one was rated at 40 percent or more, with a combined rating of at least 70 percent for service-connected disabilities. 4. The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for asbestosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.96, 4.97, Diagnostic Code 6833 (2015). 2. The criteria for TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the Veteran is challenging the initial evaluation assigned following the grant of service connection for his asbestosis. During the course of the appeal, the Veteran asserted that his asbestosis interfered with his ability to work. As such, the claim for TDIU is considered part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, VA's duty to notify has been satisfied with respect to the issues of entitlement to an increased rating for asbestosis and TDIU. The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records, including VA treatment records, have been associated with the claims file and were reviewed by both the AOJ and the Board in connection with the claims. The RO attempted to obtain the Veteran's records from the Social Security Administration (SSA), but was notified that they had been destroyed. See August 2012 correspondence. The Veteran was also afforded VA examinations in February 2010 and January 2013. In addition, supplemental VA medical opinions were obtained in October 2013 and October 2014. As noted above, the Board determined that the medical opinions were inadequate and requested a VHA opinion, which was provided in June 2015. The VHA examiner reviewed the claims file, considered the Veteran's reported symptoms and assertions, and provided a medical opinion with rationale. As such, the Board finds this VHA opinion, along with the other evidence of record, is adequate to make a determination on the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In April 2015, the Board remanded the matter for a VA examination with pulmonary function tests to ascertain the severity and manifestation of the Veteran's service-connected asbestosis. In April 2015, the Veteran informed the RO that he was unable to perform any further pulmonary function tests due to his failing health and instead submitted a Disability Benefits Questionnaire completed by a private physician. Accordingly, the Board finds the AOJ has substantially complied with the instructions of the prior remand to the extent possible. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran also testified at a hearing before the undersigned Veterans Law Judge in February 2015. The Veterans Law Judge clearly set forth the issues to be discussed, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information when appropriate. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate the claims. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). There has been no allegation otherwise. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this issue. II. Increased Rating for Asbestosis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, as in this case, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. The Veteran's service-connected asbestosis has been assigned a 10 percent rating from August 17, 2009, pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6833. The pertinent criteria are as follows: General Rating Formula for Interstitial Lung Disease (diagnostic codes 6825 through 6833): Forced Vital Capacity (FVC) less than 50-percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (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 outpatient oxygen therapy..100 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.....................................................................60 FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted ...........................................................30 FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66- to 80-percent predicted ...........................................................10 Under 38 C.F.R. § 4.96(d), there are special provisions for applying the evaluation criteria for asbestosis and certain other respiratory diseases. In relevant part, the provisions are as follows: (2) If the DLCO (SB) test is not of record, evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. (4) Post-bronchodilator studies are required when pulmonary function tests are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. (5) When evaluating based on pulmonary function tests, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. (6) When there is a disparity between the results of different pulmonary function tests. . . so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(2), (4)-(6). In addition, the Veteran has COPD, which has been attributed to a long history of tobacco smoking and is not service-connected. Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, 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). In this case, there is conflicting evidence of record; however, as will be discussed below, the Board finds that the weight of the evidence indicates that his symptoms can be distinguished and that they are attributable to COPD rather than asbestosis. By way of history, a September 1989 discharge summary indicates that the Veteran had a forty pack year history of smoking. A June 1991 VA examination report shows that he had mild pulmonary emphysema at that time. X-rays of the chest showed changes consistent with COPD. There was otherwise no active pulmonary disease. A July 2001 private treatment record from Memorial Hospital indicates that the Veteran had coarse breath sounds bilaterally, and the impression was asbestosis and COPD. A September 2001 chest x-ray showed chronic changes in the lungs with mild hyperexpansion and flattening of the hemidiaphragm. There was no evidence of confluent infiltrates or pleural effusion, and no significant pleural thickening was noted. The conclusion was chronic lung changes with no acute disease. A September 2002 chest x-ray showed no significant change from the previous examination. The impression was stable evidence of COPD and no acute abnormality. A March 2005 chest x-ray showed that the Veteran's lungs were well expanded with evidence of mild parenchymal scarring bilaterally. There was also evidence of old calcified granulomas. There was no acute infiltrate or effusion. A March 2006 x-ray showed no acute or active disease. Mild fibrotic changes were noted, but no essential changes were indicated when compared to the prior x-ray. A November 2009 x-ray showed no evidence of pleural plaques. There was more mild linear scarring or atelectasis at the right lower lung field. The lateral view demonstrated more prominent pleural thickening along the lower major fissure when compared to the prior year. The physician noted stable mild coarsening of the lower lung field markings suggesting of mild interstitial lung disease. A March 2006 private treatment record from Dr. A.R. (initials used to protect privacy) notes that the Veteran was seen for a routine follow-up. When questioned about his breathing, he said he was doing "real good" and only using Albuterol. A March 2009 pulmonary function test from Dr. A.R. revealed a FVC value of 3.34 liters, which was 72 percent of the predicted value. FEV-1 was 2.16 liters, which was 59 percent of the predicted value, and FEV-1/FVC was 65 percent, which was 77 percent of the predicted value. The impression was mild obstruction to airflow. Dr. A.R. indicated that the Veteran had mild COPD and a history of asbestosis without evidence of chest restriction or pleural plaquing on previous studies. An August 2009 record from Dr. A.R. notes that the Veteran had a history of obesity and COPD and that he was still smoking. It was noted that he had asbestosis exposure, but that the chest x-ray did not show any obvious signs of asbestosis in the way of pleural plaquing. The pulmonary function test revealed FVC of 3.38 liters, which was 73 percent of the predicted value; FEV-1 of 2.26 liters, which was 62 percent of the predicted value; and FEV-1/FVC of 67 percent, which was 77 percent of the predicted value. These measurements were taken pre-bronchodilator. The impression was mild obstruction to airflow by strict criteria. The Veteran was instructed to continue using the medication regimen from VA, which included Combivent, Asmanex, and Serevent. The report of a February 2010 VA examination indicates that the Veteran reported that he started smoking when he was 14 years old and that he smoked two to three packs per day until around 2001 when he started seeing Dr. A.R. He stated that he now only smoked a couple of cigarettes per day. The medications for his COPD included Albuterol/Ipratropium, Mometasone furoate, and Salmeterol. The Veteran indicated that he became short of breath and started wheezing if he had to walk more than 20 feet. He reported he had coughing on a daily basis, sometimes with phlegm, but no hemoptysis. He had no hospitalizations for his lungs in the past two years and had been fairly stable on his medications. On examination, the lungs showed some scattered rhonchi posterior. There was no wheezing, and there was good breath sounds in all areas. The examiner reviewed the claims file, including chest x-rays and pulmonary function tests. The examiner noted that the CT of the chest did not reveal any interstitial lung disease, and there were no nodules. There was mild pleural thickening of both upper lungs, which was nonspecific. The examiner noted that pulmonary function tests showed obstructive findings consistent with smoking. The examiner reported that FEV-1 was 69.1 percent of the predicted value. There was very low expiratory reserve value secondary to obesity. The examiner opined that the findings were not consistent with asbestos disease of the lung at that time and that the Veteran's pulmonary symptoms were most likely secondary to COPD. The report of a February 2010 VA pulmonary function test indicates that FVC was 97.1 percent of the predicted value, FEV-1 was 69.1 percent of the predicted value, and FEV-1/FVC was 54 percent (post-bronchodilator). DLCO-SB was 75.5 percent of the predicted value. Total lung capacity (TLC) was 152.1 percent of predicted. The impression was moderate obstruction by ratio, moderate by FEV-1, partly reversible, with concomitant hyperinflation, consistent with smoking history. The low expiratory reserve volume (ERV) was consistent with obesity. Smoking cessation was suggested to avoid further decline of lung function. See Virtual VA, CAPRI records received on January 31, 2013, pg. 34. An August 2010 VA treatment record indicates that the Veteran reported that he was seeing Dr. A.R., his pulmonary doctor, every six months. On examination, he had no shortness of breath or wheezes. Smoking cessation was urged. See Virtual VA, CAPRI records received on January 31, 2013, pg. 39. A December 2011 VA treatment record shows that the Veteran was seen for a follow-up visit. It was noted that he had a constant smokers cough and COPD and that he used inhalers. On examination, his chest was clear to auscultation with no wheezing. A smokers cough was observed. See Virtual VA, CAPRI records received on January 31, 2013, pg. 29. A January 2013 VA emergency department record indicates the Veteran presented with complaints of chest pain and shortness of breath. He was discharged with home oxygen. See Virtual VA, CAPRI records received on January 31, 2013, pg. 4. A January 2013 VA examiner opined that cigarette smoking was the most likely etiology of the Veteran's COPD and that there was no evidence of asbestosis, noting that the chest x-ray did not suggest pulmonary fibrosis or plaques seen with asbestosis. In addition, the examiner opined that the pulmonary function studies were consistent with an obstructive defect as seen in COPD rather than a restrictive defect as would be expected with asbestosis. Pulmonary function testing indicated that FVC was 81 percent of the predicted value, FEV-1 was 64 percent of the predicted value, and FEV-1/FVC was 57 percent of the predicted value (post-bronchodilator). The examiner stated that FEV-1/FVC most accurately reflected the Veteran's level of disability. The examiner further indicated that the Veteran would not be able to engage in any physical type of work because he was short of breath with minimal exertion. The examiner indicated that he could engage in sedentary type work, but could not work in an environment with poor air quality. The report of a January 2013 VA pulmonary function test reveals that FVC was 76.4 percent of the predicted value, FEV-1 was 59.7 percent of the predicted value, and FEV-1/FVC was 57 percent (post-bronchodilator). TLC was 108.3 percent of the predicted value. The impression was moderate and stable obstruction with concomitant gas trapping and decreasing gas exchange, consistent with post smoking history; low ERV consistent with obesity. See Virtual VA, CAPRI records received on January 31, 2013, pg. 32-33. In a May 2013 letter, Dr. A.R. indicated that he had treated the Veteran since 2008 and that he had a history of asbestosis, COPD, and hypertension. Dr. A.R. stated that a recent CT scan showed abnormalities of pleural thickening and two areas that suggested early pleural plaque formation consistent with asbestosis. A May 2013 record showed that the Veteran had dyspnea on exertion, but to a stable degree. X-rays showed some mild flattening of the diaphragms and a very faint reticular pattern was seen in the bases without pleural plaques. The impression was moderate COPD and morbid obesity, and a history of asbestosis and hypertension. In October 2013, the VA examiner who had examined the Veteran in January 2013 provided a supplemental medical opinion. He stated that asbestosis results in a restrictive defect on pulmonary function testing, which usually results in a reduced vital capacity and total lung capacity. He also stated that a reduced DLCO and a low PO2 (oxygen pressure) level can be seen, but that COPD can also result in a low DLCO and PO2. The examiner stated that COPD results in an obstructive defect on pulmonary function testing with a low FEV-1/FVC ratio and often a reduction in FEV-1. The examiner noted that, in the Veteran's case, FVC and TLC (total lung capacity) studies were normal or increased and that FEV-1/FVC was reduced to 57 percent of the predicted value, indicating an obstructive pattern. DLCO was slightly reduced to 71 percent (normal 71 to 125 percent of predicted). The examiner opined that the reduced FEV-1/FVC was as likely as not a result of COPD, but that the reduced DLCO and PO2 could be attributed to both COPD and asbestosis. The examiner opined that the increase TLC to 108 percent was as likely as not due to COPD with overinflation of the lungs. A December 2013 VA treatment record indicates the Veteran had COPD and was followed yearly by an outside pulmonologist. It was noted that he had home oxygen. See Virtual VA, CAPRI records received on October 17, 2014, pg. 13. In October 2014, another VA examiner reviewed the Veteran's claims file and provided a medical opinion. The examiner noted that the records did not confirm a diagnosis of asbestosis, noting that the available evidence consisted of only suggestive findings. The examiner stated that the Veteran had a significant lung condition, but based on objective testing, it was more likely than not due to or the consequence of his COPD, which was due to his substantial smoking history. The examiner opined that it was at least as likely as not that his symptoms were due to his asbestosis, as there was no evidence of restrictive lung disease. The examiner further opined that there was no evidence that the Veteran's asbestosis caused or aggravated his COPD. In October 2014 and February 2015 letters, Dr. A.R. stated that the Veteran had COPD, severe exercise intolerance, hypoxemia requiring supplemental oxygen, and asbestosis with abnormal CAT scan of the chest consistent with asbestos lung disease. Dr. A.R. stated that there was much more limitation and debilitation, as well as degree of hypoxemia, than would be predicted from just his COPD by his pulmonary function tests. Dr. A.R. stated that the degree of exercise intolerance and hypoxemia were out of proportion to the degree of COPD. Dr. A.R. opined that the Veteran asbestosis was contributing to the Veteran's debilitation, exercise limitation, and degree of hypoxemia, and that both COPD and asbestosis significantly contributed to his debilitation. In April 2015, Dr. A.R. noted that the Veteran was very limited due to his lung disease, that he could only walk less than 15 feet at time, and that he was unable to perform employment (substantial or sedentary) due to his service-connected asbestosis and COPD. The physician opined that it was impossible to separate the symptoms and that all of his symptoms were related to both diseases. However, no rationale was provided for that conclusion. It was also noted that the Veteran was unable to complete additional pulmonary function tests due to his health. Instead, Dr. A.R. referenced pulmonary function tests dated in May 2009, but none of the other testing noted above. In addition, he stated that the Veteran was placed on 24-hour oxygen therapy as of May 3, 2009, for his service-connected asbestosis COPD. However, VA medical records show that he was first provided and set up for home oxygen in January 2013. Thus, it is unclear as to whether Dr. A.R. had a complete or accurate factual premise on which he based his opinion. Based on the foregoing, the Board requested a VHA opinion in May 2015. In June 2015, Dr. J.S., a pulmonary specialist, reviewed the Veteran's claims file and opined that the Veteran's exertional dyspnea was caused by advanced COPD, with contributions from hypertension and obesity. Dr. J.S. noted the multiple entries in the file that addressed the Veteran's COPD and urged him to stop smoking. He further noted that dyspnea on exertion occurs late in the course of COPD when emphysema has developed. Regarding asbestosis, Dr. J.S. explained that asbestos fibers pass through lung tissue and inflame the pleura and that chronic inflammation may lead to thickened scars (plaques) that may have calcium deposits. Dr. Dr. J.S. noted that asbestosis may cause several clinical diseases, namely pleural disease, fibrosis, lung cancer, and malignant mesothelioma. Dr. J.S. further opined that the Veteran's pulmonary function tests (that include whole body plethysmography) were most consistent with advanced COPD (emphysema). He explained that advanced COPD may reduce FVC by the phenomenon of "air trapping." Dr. J.S. stated that spirometry alone does not permit distinguishing between advance obstruction with air trapping and mixed obstruction (COPD) and restriction (fibrosis). However, the plethysmographic total lung capacity elevated eliminated a restrictive component (asbestosis or massive obesity) and hyperinflation points to emphysema. Dr. J.S. explained that the DLCO test may be reduced by loss of lung tissue whether COPD or restrictive pulmonary parenchymal disease (fibrosis). However, because there was no radiographic evidence of fibrosis (asbestosis) or other pulmonary diseases (edema, pulmonary vascular disease) or anemia, Dr. J.S. stated that he must conclude that emphysema explained the reduced DLCO test. Regarding the question of whether the Veteran's need for outpatient oxygen therapy was due to asbestosis, COPD, or a combination of the two, Dr. J.S. stated that chronic hypoxemia is most commonly caused by obstructive lung disease, most commonly COPD. With established pulmonary fibrosis, hypoxemia develops during exercise. When advanced, hypoxemia develops at rest. However, as noted, the Veteran had neither radiographic evidence of pulmonary fibrosis nor pulmonary function evidence of restriction. Therefore, taken as whole, Dr. J.S. opined that the Veteran's hypoxemia was the result of advanced COPD (emphysema). Finally, Dr. J.S. noted that there were several ratings that referred to findings in 2009, before the whole body plethysmography tests in 2010 and 2013 that documented hyperinflation consistent with emphysema. Dr. J.S. stated that, without the plethysmographic tests, it would have been difficult using spirometry alone for clinicians to differentiate between advanced COPD and advanced asbestosis. On the other hand, a 2013 CT scan did not show asbestosis, but pleural changes suggestive of early plaque formation. Dr. J.S. stated that those changes were consistent with asbestos exposure. As an initial matter, the Board finds that the most probative evidence indicates that the Veteran's hypoxemia, reduced exercise capacity, and need for outpatient oxygen therapy is due to his COPD. In this regard, the Board finds the VHA examiner's opinion significantly probative because it addresses the Veteran's medical history, clinical findings, and provides a detailed rationale for its conclusions. Furthermore, the VHA examiner's opinion is consistent with the underlying record, which indicates that, at most, the Veteran has pleural changes suggestive of early plaque formation due to asbestos, but not asbestosis. In fact, the Veteran's medical history indicates that there was much debate for a number of years as to whether there were any objective findings of asbestos exposure. Regarding the pulmonary function tests, there is conflicting evidence as to whether DLCO values were attributable to COPD or both COPD and asbestos exposure. Here, the VHA examiner provided the most thorough explanation as to why the reduced DLCO values were attributable to emphysema, i.e., COPD. However, even assuming DLCO values were attributable to asbestos exposure, the Veteran would not be entitled to a higher 30 percent rating because DLCO values have not been less than 66 percent of the predicted value. See 38 C.F.R. § 4.97, Diagnostic Code 6833. Regarding FVC, a 30 percent rating is warranted with results less than 75 percent of the predicted value under Diagnostic Code 6833. FVC was 72 percent of the predicted value in March 2009 and 73 percent of the predicted value in August 2009; however, at that time, the chest x-rays showed was no obvious signs of asbestosis by way of pleural plaquing, and the impression was mild obstruction consistent with COPD. In March 2009, Dr. A.R. specifically noted that there was no evidence of restriction or pleural plaquing. Furthermore, the March 2009 and August 2009 values were measured pre-bronchodilator. Later FVC values of 97.1 percent (in February 2010) and 81 percent and 76.4 percent (in January 2013) are consistent with a 10 percent rating under Diagnostic Code 6833. These values were measured post-bronchodilator. Based on the foregoing, the Board finds that a rating in excess of 10 percent for the Veteran's service-connected asbestosis is not warranted. The Board has considered the applicability of other diagnostic codes pertaining to respiratory disorders, but finds no other rating criteria applicable in this case. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). As discussed above, Diagnostic Code 6833 specifically contemplates pulmonary symptoms attributable to asbestos exposure. In this case, the Veteran's symptoms are primarily a result of COPD, which is not service-connected. Thus, evaluation under any other diagnostic code would be inappropriate. The Board has also considered the lay statements and testimony from the Veteran and his family members regarding the severity of his condition and sincere belief that his service-connected asbestosis significantly contributes to his symptoms. See, e.g., April 2015 and September 2015 correspondence; February 2015 Board Hearing Transcript (Tr.). The Veteran and his family members are competent to attest to matters of which they have first-hand knowledge, including observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed Cir. 2006). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In this case, however, the Board does not find the lay witnesses are competent to provide an opinion relating his pulmonary symptoms to a particular lung condition as opposed to another one. This particular inquiry is within the province of trained medical professionals (such as, here, a pulmonary specialist) because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. Moreover, even if these laypersons are competent to opine on this medical matter, the Board finds that the specific, reasoned opinion provided by the June 2015 VHA examiner is of greater probative weight than the general lay assertions. The examiner reviewed the evidence of record, including the Veteran's statements and reported history, and provided a rationale supported by the evidence, diagnostic testing, and his own knowledge, training, and medical expertise. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's asbestosis is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned evaluation with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher evaluations available under the diagnostic code, but the Veteran's disability is not productive of such manifestations. As discussed at length above, the Veteran's respiratory complaints and symptoms have been largely attributed to his nonservice-connected COPD. To the extent the evidence has shown findings of early plaque formation consistent with asbestos exposure, the Board finds that the 10 percent schedular rating contemplates the resulting functional impairment. As such, it cannot be said that the available schedular evaluations for this disability are inadequate. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected asbestosis under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, supra. III. TDIU Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. §§ 3.321(b), 4.16(b). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Veteran is service-connected for asbestosis (10 percent disabling from August 17, 2009), bilateral tinnitus (10 percent disabling from May 13, 2014), and bilateral hearing loss (noncompensable from May 13, 2014). He has a combined evaluation of 10 percent from August 17, 2009, and 20 percent from May 13, 2014. Accordingly, because the Veteran does not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, he does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). Nevertheless, a TDIU may still be available if the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disability. 38 C.F.R. § 4.16(b). As such, pursuant to 38 C.F.R. § 4.16(b), consideration must be given as to whether the Veteran is entitled to a TDIU on an extraschedular basis. The Board notes that entitlement to a TDIU extraschedular rating under 38 C.F.R. § 4.16(b) and an extraschedular rating under 38 C.F.R. § 3.321(b)(1), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to a veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In this regard, the Board notes that, for a veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. Significantly, however, the Board does not have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996); Cf. 66 Fed. Reg. 49, 886 (Oct. 1, 2001) (final rule proposal to authorize the Board to assign an extraschedular rating). It may, however, determine that a particular case warrants referral to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) and 38 C.F.R. § 4.16(b). In this case, the Veteran has contended that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected asbestosis. See May 2015 claim. As discussed at length above, the Veteran also has COPD due to a long history of cigarette smoking, which is not service-connected. The most probative evidence of record indicates that his pulmonary symptoms are due to his COPD rather than asbestosis. Thus, although the evidence indicates that he is unemployable due to his pulmonary symptoms, his service-connected asbestosis has not resulted in him being unable to secure or follow a substantially gainful occupation. With regard to employability, the January 2013 VA examiner noted that the Veteran was short of breath with minimal exertion and opined that he would not be able to engage in physical type work. The examiner also opined that the Veteran could engage in sedentary type work, but could not work in an environment with poor air quality. The evidence also indicates that the Veteran has required outpatient oxygen therapy since January 2013, which further supports his claims of unemployability. However, the January 2013 examiner opined that pulmonary function tests were indicative of an obstructive defect compatible with COPD rather than a restrictive pattern seen with asbestosis. Although Dr. A.R. opined that the effects of COPD and asbestos lung disease both significantly contributed to the Veteran's debilitation, this opinion is outweighed by the other evidence of record. Significantly, the June 2015 VHA examiner's opinion provided a much more detailed, thorough analysis of the Veteran's medical history, and was supported by the underlying medical record. The VHA examiner also provided a lengthy rationale for his conclusions and provided citations to relevant medical literature. For these reasons, the Board has found that the Veteran's pulmonary symptoms are attributable to his nonservice-connected COPD rather than asbestosis. Thus, it logically follows that his inability to secure and follow a substantially gainful occupation is due to his nonservice-connected COPD rather than his service-connected asbestosis. While the Board is sympathetic to the Veteran's claim and the severity of his current health condition, the weight of the evidence is against finding that that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. As such, there is no reason for a referral of the claim to the Director of the VA Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). The evidence in this case is not so evenly balanced so as to allow for application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Therefore, the Veteran's claim of entitlement to a TDIU must be denied. ORDER Entitlement to an initial disability rating in excess of 10 percent for asbestosis is denied. Entitlement to TDIU is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs