Citation Nr: 1756722 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-40 627A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent disabling for fibrosis due to asbestos exposure. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to August 1969. This matter comes before the Board of Veterans' Appeals from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which, in pertinent part, granted service connection for fibrosis due to asbestos exposure, and assigned an initial disability rating of 10 percent disabling. In an October 2009 Notice of disagreement, the Veteran expressed disagreement with the initial disability rating assigned. In October 2014, the Veteran and his wife testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the electronic file. This appeal was last before the Board in December 2014, at which time it was remanded for further development. As discussed below, the Board finds that there has been substantial compliance with its remand. Stegall v. West, 11 Vet. App. 268 (1998). This is a paperless appeal located on the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The Board has reviewed the electronic records maintained in both VBMS and Virtual VA to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. Prior to December 21, 2011, the Veteran's interstitial fibrosis was manifested by post-bronchodilator Forced Vital Capacity (FVC) readings of no less than 75 percent and pre-bronchodilator Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) readings of no less than 70 percent predicted. 2. From December 22, 2011 to January 29, 2013 the Veteran's interstitial fibrosis was manifested by post-bronchodilator Forced Vital Capacity (FVC) readings of no less than 63 percent and pre-bronchodilator Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) readings of no less than 57 percent predicted. 3. From January 30, 2013, the Veteran's interstitial fibrosis was manifested by post-bronchodilator Forced Vital Capacity (FVC) readings of no less than 63 percent and pre-bronchodilator Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) readings of no less than 61 percent predicted. 4. The Veteran's service-connected disabilities are not shown to preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to December 21, 2011, the criteria for a rating in excess of 10 percent for diffuse interstitial fibrosis are not met. 38 U.S.C.§§ 1155, 5103, 5103A, 5107 (2012; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Code (DC) 6833 (2017). 2. From December 22, 2011 to January 29, 2013, the criteria for a 30 percent rating disability, but no higher, for diffuse interstitial fibrosis are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.96, 4.97, DC 6833 (2017). 3. From January 30, 2013, the criteria for a 60 percent disability rating, but no higher, for diffuse interstitial fibrosis are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.96, 4.97, DC 6833 (2017). 4. The criteria for a TDIU are not met. 38 U.S.C. § 1155(2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in June 2009 and July 2011 letters. 38 U.S.C. §§5100, 5102-5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, private treatment records, and VA examination reports. The Veteran was provided a hearing before the undersigned VLJ in October 2014. As there is no allegation that either of the hearings provided to the Veteran were deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). These claims were remanded in December 2014 to obtain outstanding VA medical records and November 2014 CT Scans. In April 2017, records were obtained from Wilkes Barre VA Medical Center. Additionally, the Veteran cancelled the November 2014 CT scan appointment and the RO provided documentation of this cancellation. However, he did report for a CT scan on February 9, 2015 and a copy of this document is associated with the Veteran's electronic file. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). II. Rating For Fibrosis Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's mild interstitial fibrosis, which is manifested by calcified granuloma in the left lower lobe, with minimal bilateral pleural thickening, and scattered minimal interstitial fibrosis that is consistent with asbestos exposure, is assigned a 10 percent rating under DC 6833. Interstitial fibrosis is rated under the General Rating Formula for Interstitial Lung Disease. The General Rating Formula for Interstitial Lung Disease provides that a 10 percent rating is warranted where the FVC is 75 to 80 percent of predicted value or the DLCO (SB) is 66 to 80 percent of predicted value. A 30 percent rating is warranted if the FVC is 65 to 74 percent of predicted value or the DLCO (SB) is 56 to 65 percent of predicted value. A 60 percent rating is warranted where the FVC is 50 to 64 percent of predicted value; DLCO (SB) is 40 to 55 percent predicted value; or maximum exercise capacity is 15 to 20 ml/kg in oxygen consumption with cardiorespiratory limitation. A 100 percent rating is warranted if the FVC is less than 50 percent of predicted value; DLCO (SB) is less than 40 percent predicted value; maximum exercise capacity is less than 15 ml/kg in oxygen consumption with cardiorespiratory limitation or; cor pulmonale or pulmonary hypertension; or requires oxygen therapy. 38 C.F.R. § 4.97, 6825 to 6833. When the pulmonary functioning testing (PFTs) are not consistent with clinical findings, evaluation should generally be based on the PFTs. Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes with some exceptions; when evaluating based on PFTs. Post-bronchodilator results are to be used unless they are poorer than the pre-bronchodilator results, then the pre-bronchodilator values should be used for rating purposes. When the results of different PFTs (FEV-1, FVC, etc.) are disparate, the test result that the examiner states most accurately reflects the level of disability should be used for evaluation, and if the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV-1/FVC ratio should not be assigned. 38 C.F.R. § 4.96(d) The evidence shows that in addition to the service-connected fibrosis due to asbestos exposure, the Veteran has been diagnosed with chronic obstructive pulmonary disease (COPD) in July 2009 and June 2016 VA examinations, however, he is not service-connected for COPD. The VA March 2011 and June 2016 examiners have differentiated between symptomatology associated with the Veteran's fibrosis and the nonservice-connected COPD. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2014); Mittleider v. West, 11 Vet App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so). Factual Background and Analysis A January 2009 VA consultation report indicated that the Veteran's FVC was 75 percent predicted and FEV-1 was 66 percent predicted value, post-bronchodilator. Also, his DLCO was 84 percent predicted. In July 2009, the Veteran was afforded a VA examination. The Veteran reported that he took Spiriva, Advair, and Albuterol. The examiner indicated that he reviewed the Veteran's C-file. The examiner indicated that the x-ray showed fibrosis and the pulmonary function test showed mild restriction and diffuse obstruction. The CT scan showed a few tiny pleural-based nodules, nothing suggestive of interstitial lung disease (ILD), no plaques, and not much pleural thickening. The examiner noted that he had clear-cut exposure to asbestos. The examiner opined that the Veteran's dyspnea on exertion is not due to his mild airway disease. The Veteran's FVC was 75 percent predicted. The diffusion capacity of the lung for carbon monoxide by the single breath method DLCO (SB) was 84 percent predicted. The examiner noted that bronchodilator was not given since the Veteran used Combivent, Advair, and Spiriva inhalers before the examination. The Veteran wrote on an October 2009 VA 21-4138 that he felt he should be assigned a higher rating than 10 percent for his fibrosis condition. He indicated that he felt a higher rating of 30 percent was warranted. He wrote that the forced vital capacity test was not accurate since he used an inhaler prior to taking the test. He missed the 30 percent rating by one percent on the FVC test. A November 2009 VA discharge summary note documented the Veteran's complaints of dizziness and chest pain. The Veteran reported that he had left sided chest pain. A February 2010 VA consult note indicated that the Veteran's DLCO was 65 percent predicted and his FVC was 65 percent predicted pre-bronchodilator. A March 2010 VA Pulmonary consultation note indicated that the Veteran had moderately severe chronic obstructive pulmonary disease due to a history of smoking for 20 years. Also in March 2010, the Veteran underwent a cardiac cauterization, which demonstrated non-obstructive coronary artery disease. Later in March 2010, the Veteran was put on oxygen therapy for the treatment of his dyspnea. A July 2010 VA treatment note indicated that the Veteran's DLCO (SB) was 70 percent predicted and his FVC was 75 percent predicted. Later that month, in a VA pulmonary note, the examiner noted that the Veteran's PFTs were about the same lung volume but his FEV1 and DLCO were worse. The examiner based his comment from the July and February 2010 and July 2009 VA treatment notes. In March 2011, the Veteran was afforded a VA examination. The examiner was asked to address whether the Veteran's dyspnea and oxygen (O2) therapy was related to his asbestos related pulmonary fibrosis or related to other pulmonary conditions. The examiner noted that the Veteran was exposed to asbestos as a welder in the service. The examiner commented that the Veteran's O2 during the examination with room air was at 97 percent. The Veteran's PFTs showed FVC at 78 percent predicted, FEV-1 at 66 percent predicted, and DLCO at 85 percent predicted. The examiner stated that, "the Veteran had moderate obstruction, mild restriction, normal DLCO post-bronchodilators (BD) was very good and responded to BD with 23 percent increase in FVC, 19 percent increase in FEV1. He indicated that the Veteran's COPD was a major cause for his dyspnea since his obstruction responded very well to BD and he had only mild restriction mostly from some pleural plaques due to asbestos exposure. The Veteran's DLCO was very good which suggested that his interstitial lung disease was of no significance to his dyspnea, as a matter of fact it was reported as minimal on CT." The examiner commented that his impression was that that the Veteran's dyspnea and strenuous exercise tolerance were due to obstructive airways disease and he responded well to bronchodilators. The examiner noted that he could not quantify, to how much of the restrictive component was due to pleural plaques. He commented that he was able to say it was minor especially since the Veteran's DLCO was normal and O2 saturation on walking up 15 steps of stairs was 96 percent. He noted that asbestos related lung dysfunction was minor and most of it was due to his obstructive lung disease. In June 2011, the Veteran submitted a letter from three of his private doctors Dr. WW, Dr. MA, and Dr. ES. Dr. ES wrote that he known the Veteran for approximately three years. The doctor indicated that he frequently witnessed his inability to breathe normally without the aid of oxygen. He wrote that the Veteran experienced cardiac arrest in 2009 and as a result had many physical complications including shortness of breath. Dr. MA wrote that the Veteran was a patient under his care for multiple diagnoses including but not limited to COPD, shortness of breath, coronary atherosclerosis, dizziness, and gait abnormality. Dr. MA indicated that he sustained cardiac arrest approximately 3 years ago. Since that time, the Veteran had experienced great difficulty with his breathing. He further stated that to ensure a good quality of life for the Veteran would require the continued use of oxygen. Lastly, Dr. WW wrote that that he had known the Veteran for several years and had witnessed the difficulty he had breathing due to lack of proper oxygen supply. In August 2011, the Veteran submitted a statement from his wife. The Veteran's wife wrote that over the past years she watched his health decline. She wrote that his health had declined to the point that he was not able to perform even the most mediocre physical tasks without experiencing extreme shortness of breath and fatigue. She reported that he required the use of portable oxygen on a daily basis. She indicated that the procedure used to perform his PFTs did not accurately measure his 02 stats. On more than one occasion, the technician performing the test told the Veteran the instrumentation did not measure his levels appropriately and that his lungs were far more stressed than the results would indicate. A private medical document dated December 2011, noted the Veteran's FVC was 59 percent predicted pre--bronchodilator. The Veteran's FEV-1 was 65 percent predicted, post-bronchodilator. His total lung capacity was 72 percent and DLCO (SB) was 57 percent predicted. The examiner indicated that his flow volume loop was consistent with restriction and obstruction. The examiner concluded that the PFTs were consistent with a combination of restriction and obstruction pulmonary disease of moderate severity. Furthermore, the examiner noted that there was no significant response to bronchodilation. In January 2013, the Veteran was afforded another VA examination. The examiner noted that the Veteran's C-file was reviewed. The examiner diagnosed the Veteran with COPD. The examiner noted that CT scan dated February 1, 2013, revealed findings of calcified granuloma in the left lower lobe, minimal bilateral pleural thickening, and scattered minimal interstitial fibrosis. The examiner noted that the February 2013 was consistent with the CT scan performed in 2009. The PFTs showed post-bronchodilator findings of FVC was 63 percent predicted, FEV-1 was 50 percent predicted; ratio of FEV1/FVC was at 62 percent; pre-bronchodilator findings of DLCO(SB) was 69 percent predicted. The examiner indicated that the FEV-1 reflected the Veteran's level disability more accurately. He noted that the Veteran's condition was worse based on the FVC and FEV-1 findings. The examiner noted that the Veteran had always had a mild restriction on previous PFTs in private and VA records, mild fibrosis on CT scan, was indicated on the Veteran's total lung capacity (TLC); current PFTs demonstrated a normal TLC at 80 percent. The examiner indicated that TLC could be considered decreased when it was 80 percent or less predicted. The examiner stated, "The PFT showed his TLC is normal 80 percent, last PFT was 78 percent, the one in 2009 from outside was 90 percent. So this is consistent with what I have said from the last examination that his restriction due to pleural plaques and interstitial fibrosis is very mild. He smoked up to 20 years ago. The question is his obstructive lung disease at least as likely as not related to the fibrosis associated with asbestos exposure Orto asbestos itself. The examiner's answer is the CT showed minimal fibrosis, I don't think it can cause severe airway obstruction asbestos or any inhalational substance can cause lung disease by casual structural damage due to the lungs, asbestos cause it by causing fibrosis and pleural plaques minimal fibrosis and pleural plaques cause reduction in TLC, but he doesn't have severe fibrosis or severe pleural disease." An August 2013 VA addendum note indicated that the examiner reviewed the Veteran's claims file. The examiner noted that the his diffusion capacity was stable. The examiner indicated that records reflected a February 2013 CT scan was determined by a VA radiologist when compared with his prior CT. When tested in February 2013 by the WBVA Home O2 Clinic, he was noted to desaturate from 95-96 percent down to 86-87 percent and was prescribed oxygen. He had shortness of breath, which was multifactorial. The ongoing worsening symptom of shortness of breath was primarily related to his airways disease and that was related primarily to his prior smoking together with obesity, which had been linked to asthma. A March 2014 VA pulmonary note indicated the examiner reviewed the Veteran's CT scan. The examiner noted that he and Dr. R both were of the impression that the interstitial findings improved in the prone position although it was not totally resolved. In October 2014, the Veteran testified that he was not able to work around the house or work in the yard because of his condition. He stated that after five or ten minutes of working, he would become short of breath and had to sit and rest. He testified that Dr.D found that he had 99 percent blockage so he had to have a cardiac catheterization. The Veteran submitted an April 2015 letter from Dr. WC. Dr. WC wrote that the Veteran had severe chronic lung disease that was oxygen dependent. In addition, the Veteran had coronary artery disease with a remote history of cardiac arrest in the setting of an acute inferior wall myocardial infarction, and had hemodynamically significant aortic valve stenosis that was severe enough that he would need to have the valve replaced in the near future. A February 2015 VA CT scan, indicated that the Veteran had stable sub-centimeter nodular lesions consistent with chronic granulomas without new nodules present. Consultation conducted later in February, assessed the Veteran as having early mild interstitial disease. Subsequent VA CT scans continued to reference that the condition was mild and stable. In June 2016, the Veteran was afforded another VA examination. The Veteran complained that he had increased shortness of breath that limited much of his activity. The Veteran reported that he could climb a flight of stairs and occasionally had to stop on the way up due to shortness of breath. He reported that chronic peripheral edema was worse in the evening with no paroxysmal nocturnal dyspnea (PND) or orthopnea. The examiner indicated that he reviewed the Veteran's claim file. The examiner noted that there was no wheezing detected during the examination. He indicated that he did not hear any velcro rales. He noted that the CT scan confirmed pleural thickening and calcification was evident. Furthermore, the examiner indicated that dyspnea related to interstitial disease was a progressive cough and pulmonary function studies were manifested by the Veteran's chronic pulmonary disease. The examiner indicated that the Veteran had cardiopulmonary complications. He noted that the Veteran also had pulmonary hypertension and his respiratory condition required daily use of bronchodilators and oxygen therapy. He further indicated that the Veteran did not require greater than 17 hours a day of oxygen therapy. The examiner noted that pulmonary function testing was performed and they accurately reflected the Veteran's current pulmonary function. Pre-bronchodilator indicated the Veteran's FVC was 60 percent predicted and DLCO was 61 percent predicted. Post-bronchodilator indicated the Veteran's FVC was 64 percent predicted and FEV-1 was 52 percent predicted. The examiner stated that the Veteran had multiple competing medical problems that explained his shortness of breath. He further noted that the Veteran had no desaturation with ambulation that would explain his dyspnea or worsening interstitial disease. The examiner concurred with the examination findings in 2013 that the Veteran's asbestos exposure was responsible for a small component of his airway disease. Prior to December 21, 2011, the Board concludes that a disability rating in excess of 10 percent is not warranted for the Veteran's interstitial fibrosis under DC 6833. The evidence does not show that the Veteran's PFTs resulted in FVC of 65-74 percent predicted, or DLCO (SB) of 56 to 65 percent predicted, which is required for a higher rating. During this time period, the Veteran's interstitial fibrosis manifested by FVC readings of no less than 75 percent predicted and DLCO (SB) readings of no less than 84 percent predicted; thus, a 10 percent disability rating is appropriate. Moreover, there was no evidence of limitation of the Veteran's maximum exercise capacity attributed to his disability. He did not have associated cardiorespiratory limitation, cor pulmonale, or pulmonary hypertension. Likewise, this disability did not require outpatient oxygen therapy. Therefore, prior to February 3, 2010, a rating in excess of 10 percent is not warranted. 38 C.F.R. §4.97 (20176). From December 22, 2011 to January 29, 2013, the Board finds that the Veteran's interstitial fibrosis symptoms more nearly approximate a 30 percent disability rating, but no higher. he evidence shows that during this time period the Veteran's PFTs resulted in DLCO (SB) no less than 57 percent predicted. The evidence does not show that the Veteran's PFTs resulted in FVC of 50-64 percent predicted postbronchodilator, or DLCO (SB) of 40 to 55 percent predicted, which is required for a higher rating. Moreover, there was no evidence of limitation of the Veteran's maximum exercise capacity attributed to his disability. He did not have associated cardiorespiratory limitation, cor pulmonale, or pulmonary hypertension linked to his interstitial fibrosis. Likewise, this disability did not require outpatient oxygen therapy. Therefore, an increased disability rating in excess of 30 percent is warranted for this period under DC 6833. See 38 C.F.R. § 4.97, DC 6833. Since January 30, 2013, the Board finds that the Veteran's interstitial fibrosis symptoms more nearly approximate a 60 percent disability rating, but no higher. The evidence shows that the Veteran's PFTs resulted in FVC of no less than 64 percent or DLCO (SB) no less than 61 percent predicted. The evidence does not show that the Veteran's PFTs resulted in FVC of less than 50 percent predicted or DLCO (SB) no less than 40 percent predicted, which is required for a rating of 100 percent. Moreover, there was no evidence of limitation of the Veteran's maximum exercise capacity attributed to his disability. Although, the Veteran has pulmonary hypertension medical evidence throughout this time period are indicative of no more than mild pulmonary restriction and the fibrosis is a small component of his airway disease. While the record indicates that the Veteran is on oxygen therapy VA March 2011, the June 2016 examiner indicated that it is due to the Veteran's obstructive lung disease and not due to the Veteran's fibrosis. The March 2011 examiner commented that the Veteran's COPD was a major cause for his dyspnea since his obstruction responded very well to BD, he had only mild restriction mostly from some pleural plaques due to asbestos exposure. The Veteran's DLCO was very good which suggested that his interstitial lung disease was of no significance to his dyspnea, his fibrosis was reported as minimal. He further noted that the Veteran's asbestos related lung dysfunction was minor and most was due to his obstruction lung disease (COPD). An April 2015 VA examiner commented that Veteran was prescribed oxygen, however, the ongoing worsening symptom of shortness of breath was primarily related to his airways disease and that was related primarily to his prior smoking together with obesity, which had been linked to asthma. The 2016 VA examiner concluded that the Veteran's asbestos exposure was responsible small component of the Veteran's airway disease. He further indicated that the Veteran's dyspnea related to interstitial disease was a progressive cough. As the Veteran's FVC is 50 to 64 percent of predicted value, DLCO (SB) is 40 to 55 percent predicted value; his symptoms more nearly approximate 60 percent disability rating. Therefore, the Board finds that a 60 percent rating for the Veteran's interstitial fibrosis is warranted for this period under DC 6833. See 38 C.F.R. § 4.97, DC 6833. The Board finds that DC 6833 is the most appropriate because it pertains specifically to the service-connected disability in the Veteran's interstitial fibrosis. The Board finds that no other diagnostic code would be more appropriate other than DC 6833. Notably, the Veteran's interstitial fibrosis is not shown to involve any other factor that would warrant evaluation of the disability under any other provisions of the rating schedule. The Board notes that the January 2013 VA examiner found that the FEV -1 reading accurately reflects the Veteran's level of disability. However, the January 2013 VA examiner was addressing the Veteran's COPD condition and not his interstitial fibrosis. The January 2013 VA examiner was addressing whether the Veteran's COPD was related to his interstitial fibrosis. The examiner relied on the FEV-1 readings to address the condition of COPD. DC 6833 requires FVC and DLCO readings. To this end, the Board has considered other diagnostic codes for other respiratory disorders such COPD (DC 6604) and chronic pleural effusion or fibrosis (DC 6845). However, theses DCs would not provide higher ratings, even on the basis of the Veteran's FEV-1, FEV, or DLCO readings. The Board notes that neither the Veteran nor his representative has requested that another diagnostic code be used to evaluate his service-connected disability. Accordingly, the Board concludes that the Veteran is appropriately rated under DC 6833. The Board has also considered lay statements of the Veteran and his wife regarding the severity of his interstitial fibrosis. As laypersons the Veteran and his wife are competent to attest to physical symptoms that he experiences, such as shortness of breath. Their statements describing his symptoms are considered to be competent evidence. King v. Shinseki, 700 F .3d 1339 (Fed.Cir.2012); Layno v. Brown, 6 Vet. App. 465 (1994). These statements, however, must be viewed in conjunction with the medical evidence as required by the rating criteria. The Veteran and his wife are not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's pulmonary function has been provided by the medical personnel who examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluation. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's complaints of increased symptomatology. In analyzing this case, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the claim for an increased rating in excess of 10 percent prior to December 21, 2011, December 22, 2011 to January 29, 2013 in excess of 30 percent but no higher, and in excess of 60 percent but no higher since January 30, 2013. As such, the benefit-of-the-doubt doctrine is not warranted in this instance. 38 U.S.C.A. § 5107 ; 38 C.F.R. §§ 4.3 , 4.7, 4.97, DC 6833; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. TDIU Legal Criteria- TDIU A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a) (2016). 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 or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19 (2016); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16 (2016). A finding of total disability is appropriate when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2016). "Substantially gainful" employment is employment that is "ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." See Moore v. Derwinski,1 Vet. App. 356, 358 (1991) (adding that the definition of substantially gainful employment suggests a living wage). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16(a) (2016); see also Moore, 1 Vet. App. at 358 ("The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment."). A TDIU may be assigned if the schedular rating is less than total when it is found that the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. See 38 C.F.R.§§ 3.340, 3.341, 4.16(a) (2016). If there is only one such service-connected disability, it must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a) (2016). If there are two or more such disabilities, at least one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Id. Where applicable, disabilities resulting from a common etiology are considered a single disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16(a) (2016). Id. Factual Background and Analysis In June 2010, the Veteran was afforded a VA mental disorder examination. The Veteran reported that he was not currently employed. He indicated that he retired in 2008 and his occupation was as a currier driver. On an April 2013 VA Form 21-8940, the Veteran wrote that he worked as truck driver during 2007. He indicated that his service-connected fibrosis lungs, major depression, and his non-service connected COPD prevented him from securing substantially gainful employment. In January 2013, the Veteran was afforded a respiratory VA examination. The examiner indicated that the Veteran's respiratory condition impacted his ability to work. He stated that, "his obstructive airways disease, emphysema is the most disabling one." The examiner noted that the Veteran is morbidly obese and his last examination his BMI was 41, now it was 44.5 in November 2012. The examiner noted that he used oxygen all the time. He was worse than the last time the examiner examined him, but it was mostly from his severe and worse airway obstruction from COPD and his obesity deconditioning. The examiner indicated that his restrictive lung disease had been mild in the past and on his present PFTs his TLD was normal. In April 2013, the Veteran was afforded another mental disorder examination. The Veteran reported that he achieved his GED and joined the Navy in 1965. While in the Navy, he became a pipe fitter/welder. After the service, he reported that he worked for a variety of truck driving companies and as a Greyhound bus driver. The Veteran reported that his mental condition made him largely isolated and withdrawn. The Veteran's wife confirmed that he was solitary, irritable, and grouchy. She reported that he was sometimes tense and easily frustrated. The examiner noted that during the examination it was evident that he had very labored breathing and at times would make loud gasping sounds despite being on a constant supply of oxygen. He noted that the Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, stereotyped speech, impaired abstract thinking, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The examiner indicated that the Veteran's mental disorder symptoms caused an occupational and social impairment with deficiencies in most areas, such as work, school, family, relations, judgment, thinking and/or mood. During the October 2014 Board hearing, the Veteran testified that he worked as a truck driver and was with his past employer for six years. He stated that before he was a truck driver he was a transportation coordinator. He testified that his health gradually went down after his heart attack in 2008. The Veteran's wife testified that his service-connected disabilities were almost totally debilitating him. She stated that he was not able to lift or drive a 10-12 hour shift. She testified that employers would not let him back on the road with oxygen. The Veteran submitted a letter from his private physician Dr. WC in April 2015. The doctor wrote that the Veteran had severe chronic lung disease that was oxygen dependent. Dr. WC indicated that the Veteran was completely disabled and unable to work at any level because of the combination of his medical problems. An April 2015 VA addendum note documented that the Veteran was unable to perform work related interests due to his physical limitations secondary to his medical condition. The examiner noted that the Veteran received his GED and was a truck and bus driver. During the evaluation, the Veteran reported that he woke up at five in the morning and goes to bed at ten at night. He reported that he spent his day shopping with his wife, puttering around the house, and going to the cemetery. In June 2016, the Veteran was afforded another VA respiratory examination. The examiner indicated that the Veteran's respiratory condition impacted his ability to work. Furthermore, the examiner indicated that dyspnea related to interstitial disease was a progressive cough and pulmonary function studies were manifested by the Veteran's chronic pulmonary disease. The examiner stated that the Veteran had multiple competing medical problems that explained his shortness of breath. He further noted that the Veteran had no desaturation with ambulation that would explain his dyspnea or worsening interstitial disease. The examiner noted that the Veteran's asbestos exposure was responsible for a small component of his airway disease. The Veteran's service-connected disabilities include fibrosis [asbestos] (now assigned 60 percent disability rating as of January 2013), major depressive disorder, associated with fibrosis (assigned 50 percent from August 2011), and fractured of the navicular bon, right hand (assigned 0 percent as of April 2009). His combined rating meets the consideration for threshold requirements for a TDIU. See 38 C.F.R. § 4.16 (a) (2016). Upon review of the evidence of record, the Board finds that the weight of the evidence, lay and medical, does not demonstrate that the Veteran is unable to obtain or retain substantially gainful employment solely due to the service-connected disabilities. The Veteran's symptoms would likely interfere with his employability, but they would not preclude him from employment. VA examiners and private physicians both opined that the Veteran's combined medical conditions prevented him from obtaining gainful employment and not solely his service-connected disabilities. The January 2013 VA examiner opined that the Veteran's non-service connected COPD impacted his ability to work. He noted that the Veteran's obstructive airways disease, emphysema was the most disabling. He further reported that the Veteran's non-service connected COPD was the most severe and his obesity deconditioning. He indicated that the Veteran's restrictive lung disease (fibrosis) was mild. The Veteran's private physician (Dr.WC) indicated that the Veteran was completely disabled and unable to work at any level because of the combination of his medical problems. The April 2013 mental disorder examiner noted that the Veteran had an occupational and social impairment with deficiencies in most areas, such as work, school, family, relations, judgment, thinking and/or mood. However, the examiner did not indicate if this would impact the Veteran from obtaining gainful employment. An April 2015 examiner indicated that the Veteran was unable to perform work related interests due to his physical limitations secondary to his medical condition. Lastly, the June 2016 VA examiner indicated that the Veteran's COPD was the major disease causing his symptoms and not his fibrosis. The examiner commented that the Veteran's fibrosis was a small component of his airway disease. After review of all the lay and medical evidence, the Board finds that the weight of the competent, credible, and probative evidence, does not demonstrate that the Veteran's service-connected disabilities alone render him unable to secure or follow substantially gainful employment. The Board has considered the Veteran and his wife statements regarding his claim of TDIU and find that they are outweighed by the competent and probative VA medical evidence of record. While the Veteran's service-connected disabilities may result in some occupational impairment, the evidence demonstrates that it is the non-service connected disability COPD impacts his ability to secure or follow a substantially gainful occupation. For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria for TDIU have not been met. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial disability rating in excess of 10 percent for fibrosis due to asbestos exposure, prior to December 21, 2011, is denied. Entitlement to an initial 30 percent rating, but no higher, for fibrosis due to asbestos exposure, from December 22, 2011 to January 29, 2013 is granted. Entitlement to an initial 60 percent rating, but no higher, for fibrosis due to asbestos exposure, since January 30, 2013 is granted. Entitlement to TDIU is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs