Citation Nr: 1824992 Decision Date: 04/25/18 Archive Date: 05/03/18 DOCKET NO. 11-29 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral cataracts, as secondary to service-connected asbestos-induced pleural disease. 2. Entitlement to service connection for edema of the bilateral hands, as secondary to service-connected asbestos-induced pleural disease. 3. Entitlement to an initial increased rating for asbestos-induced pleural disease, currently rated as noncompensably disabling prior to April 23, 2009, as 30 percent disabling, from April 23, 2009 to May 2, 2010, and as 100 percent disabling, from May 3, 2010. 4. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to April 23, 2009. 5. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance. REPRESENTATION Veteran represented by: Douglas E. Sullivan, Attorney WITNESSES AT HEARING ON APPEAL Veteran & M.Y. ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran had active service from September 1952 to October 1955. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The matter is now handled by the RO in Atlanta, Georgia. In a September 2011 rating decision, the RO granted an increased evaluation of 30 percent for the Veteran's asbestos-induced pleural disease, effective April 23, 2009. Despite the grant of this increased evaluation, the Veteran was not awarded the highest possible evaluation. As a result, he is presumed to be seeking the maximum possible evaluation and the issue remains on appeal. A.B. v. Brown, 6 Vet. App. 35 (1993). The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2014 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In January 2015, the Board granted a 100 percent rating for the Veteran's asbestos-induced pleural disease, effective May 3, 2010, and remanded these remaining claims for additional development. That development having been completed, the claims are now ready for appellate review. The Board notes that entitlement to service connection for kidney disease was also remanded in January 2015; however, this issue was granted in a December 2017 rating decision, and as such, is no longer on appeal. The Veteran was also granted entitlement to a SMC based on housebound status in the December 2017 rating decision, but he still seeks entitlement to SMC at the higher rate based on the need for aid and attendance, as such, this issue remains on appeal. The Board notes that the Veteran has additional issues currently on appeal and is awaiting a Board hearing on those issues. A decision as to those issues will be rendered following the hearing and will not be addressed in this decision. FINDINGS OF FACT 1. The Veteran's bilateral cataracts are not proximately due to or aggravated by his service-connected asbestos-induced pleural disease. 2. The Veteran's edema of the bilateral hands is not proximately due to or aggravated by his service-connected asbestos-induced pleural disease. 3. Prior to April 23, 2009, the Veteran's asbestos-induced pleural disease was not manifested by a FVC of 75- to 80-percent predicted, or DLCO (SB) of 66- to 80-percent predicted. 4. From April 23, 2009 to March 22, 2010, the Veteran's asbestos-induced pleural disease was not manifested by a 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. 5. From March 23, 2010, the Veteran's asbestos-induced pleural disease is manifested by pulmonary hypertension. 6. Prior to April 23, 2009, the Veteran's service-connected disability did not meet the requisite schedular percentages for entitlement to a TDIU; the evidence of record does not demonstrate the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected asbestos-induced pleural disease. 7. The Veteran does not have anatomical loss or loss of use of both feet, or anatomical loss or loss of use of one hand and one foot, or has a service-connected disability resulting in blindness in both eyes with visual acuity of 5/200 or less, or that he is permanently bedridden; his service-connected disabilities do not result in physical or mental incapacity that prevents him from attending to the needs of nature, caring for himself, or protecting himself from the hazards of his environment. CONCLUSIONS OF LAW 1. Service connection for bilateral cataracts, as secondary to service-connected asbestos-induced pleural disease, is not established. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. Service connection for edema of the bilateral hands, as secondary to service-connected asbestos-induced pleural disease, is not established. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 3. Prior to April 23, 2009, the criteria for an initial compensable rating for asbestos-induced pleural disease are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6833 (2017). 4. The criteria for a rating higher than 30 percent, from April 23, 2009 to March 22, 2010, for asbestos-induced pleural disease are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6833 (2017). 5. The criteria for a rating of 100 percent, from March 23, 2010 to May 2, 2010, for asbestos-induced pleural disease are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6833 (2017). 6. The criteria for a TDIU, prior to April 23, 2009, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16 (2017). 7. The criteria for entitlement to SMC based on the need for aid and attendance are not met. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in July 2009, prior to the initial decision in this matter. Regarding the increased rating claim, the Board notes that where the underlying claim for service connection has been granted and there is disagreement regarding a downstream issue, such as entitlement to a higher initial rating, the claim as it arose in its initial context has been substantiated and there is no need to provide additional VCAA notice concerning the downstream issue. Goodwin v. Peake, 22 Vet. App. 128, 134 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the provisions of 38 U.S.C. § 7105 (d) require VA to issue a statement of the case (SOC) concerning the downstream issue if the disagreement is not resolved. The Veteran received a timely SOC in September 2011. VA also has a duty to assist a claimant with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). This duty includes the obtaining of identified records to substantiate the claim. VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matters decided herein has been obtained. The AOJ has obtained the Veteran's VA treatment records and private medical records have been associated with the claims file. Additionally, the Veteran was afforded adequate VA examinations for the claimed disabilities on appeal. The claim was remanded in January 2015. The Board finds that the AOJ substantially complied with the remand orders such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103 (a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claims. II. Service Connection Claims The Veteran seeks entitlement to service connection for bilateral cataracts and edema of the bilateral hands. He asserts his disorders are secondary to his service-connected asbestos-induced pleural disease. As the Veteran's theory of entitlement is limited to secondary service connection, and the record does not otherwise suggest that direct service connection should be considered, the Board's consideration is of entitlement to secondary service connection only. Importantly, the Board notes that the Veteran is service connected for asbestos-induced pleural disease. See October 2009 rating decision. Applicable Laws The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2017). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2017). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). A. Bilateral Cataracts Initially, the Board notes that the Veteran has a current diagnosis of bilateral cataracts. See August 2015 VA examination. As such, element (1) set forth under Allen, current disability, has been satisfied. See Allen, supra. Unfortunately, the Board finds that element (2) under Allen, nexus, has not been satisfied. The August 2015 VA examiner opined that the Veteran's bilateral cataracts were less likely than not proximately due to or aggravated by his service-connected asbestos-induced pleural disease, carotid disease, pulmonary hypertension or coronary artery disease. The examiner explained that the Veteran's cataracts are age related and/or related to his diabetes mellitus, type 2. The Board finds the August 2015 VA examination and opinion to be highly probative. The opinion was based on a review of the record, consideration of the Veteran's own statements as to his symptoms and history, and the results of physical examination and diagnostic studies. There are no probative medical opinions to the contrary, of record. The Board has considered the Veteran's own statements regarding the nature and etiology of his claimed disorders, as well as statements from his family. The Board acknowledges that they are competent to give evidence about what they witness; for example, the Veteran is competent to discuss his pain and other symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In the present case, however, the Board finds that the lay statements are outweighed by the post-service treatment records and the negative VA medical opinion cited above. Further, given the specific facts of this case, the lay witnesses are not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because they do not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Accordingly, though they are competent to report symptoms, they are not credible to provide an opinion as to nature and etiology on the complex medical question presented in this case which concerns whether there is an association between a disease process affecting the eyes and an internal disease process. There is no probative evidence of record that establishes the Veteran's bilateral cataracts are proximately due to or aggravated by his service-connected asbestos-induced pleural disease. As such, the Board finds that element (2) under Allen, nexus, has not been satisfied. In summary, although the Veteran has a current diagnosis, there is no probative evidence of record indicating that his service-connected asbestos-induced pleural disease caused or aggravated his claimed disorder. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for bilateral cataracts. See 38 C.F.R. §§ 3.303, 3.310 (2017). B. Edema of the Bilateral Hands Initially, the Board notes that the Veteran has a current diagnosis of edema of the bilateral hands. See August 2015 VA examination. As such, element (1) set forth under Allen, current disability, has been satisfied. See Allen, supra. Unfortunately, the Board finds that element (2) under Allen, nexus, has not been satisfied. The August 2015 VA examiner opined that the Veteran's edema of the bilateral hands was less likely than not proximately due to or aggravated by his service-connected asbestos-induced pleural disease with pulmonary hypertension. The examiner explained that it is common to see pedal edema in the feet and ankles, secondary to right sided heart failure associated with pulmonary hypertension; however, there is no pathophysiologic relationship between hand edema and pulmonary hypertension. The Board finds the August 2015 VA examination and opinion to be highly probative. The opinion was based on a review of the record, consideration of the Veteran's own statements as to his symptoms and history, and the results of physical examination and diagnostic studies. There are no probative medical opinions to the contrary, of record. The Board has considered the Veteran's own statements regarding the nature and etiology of his claimed disorder, as well as statements from his family. The Board acknowledges that they are competent to give evidence about what they witness; for example, the Veteran is competent to discuss his pain and other symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In the present case, however, the Board finds that the lay statements are outweighed by the post-service treatment records and the negative VA medical opinion cited above. Further, given the specific facts of this case, the lay witnesses are not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because they do not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Accordingly, though they are competent to report symptoms, they are not credible to provide an opinion as to nature and etiology on the complex medical question presented in this case which concerns whether there is an association between a disease process affecting the hands and an internal disease process. There is no probative evidence of record that establishes the Veteran's edema of the bilateral hands is proximately due to or aggravated by his service-connected asbestos-induced pleural disease. As such, the Board finds that element (2) under Allen, nexus, has not been satisfied. In summary, although the Veteran has a current diagnosis, there is no probative evidence of record indicating that his service-connected asbestos-induced pleural disease caused or aggravated his claimed disorder. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for edema of the bilateral hands. See 38 C.F.R. §§ 3.303, 3.310 (2017). III. Increased Rating Claim Service connection for asbestos-induced pleural disease was established by an October 2009 rating decision, at which time a noncompensable rating was assigned, effective from March 10, 2008. In a September 2011 rating decision, the Veteran's rating was increased to 30 percent, effective April 23, 2009. In a June 2015 rating decision, the Veteran's rating was increased to 100 percent, effective May 3, 2010. The Veteran seeks entitlement to a compensable rating, prior to April 23, 2009, and to a rating higher than 30 percent, prior to May 3, 2010. Disability evaluations are determined by application of criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has 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, when the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126. The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Veteran is currently rated as noncompensable, prior to April 23, 2009, under 38 C.F.R. § 4.97, Diagnostic Code 6833. Diagnostic Code 6833 does not provide requirements for a zero percent rating. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Here, a compensable 10 percent rating is warranted for a forced vital capacity (FVC) of 75- to 80-percent predicted, or diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO) (SB) of 66- to 80-percent predicted. A rating of 30 percent is warranted for FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted. A rating of 60 percent is warranted for FVC of 50- to 64-percent predicted, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A rating of 100 percent is warranted for FVC less than 50-percent predicted, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale or pulmonary hypertension, or; requires outpatient oxygen therapy. VA evaluates pulmonary function test (PFT) results based on post-bronchodilation results. See 61 Fed. Reg. 46720 (Sept. 5, 1996). In so deciding, VA noted that The American Lung Association /American Thoracic Society Component Committee on Disability Criteria has recommended testing for pulmonary function after optimum therapy based upon reasoning that the results of such tests reflect the best possible functioning of an individual and were the figures used as the standard basis of comparison of pulmonary function. It was also noted that using post-bronchodilation results would assure consistent evaluations. Id. at 46,723. When 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. See 71 Fed. Reg. 52457-10 (Sept. 6, 2006). As noted, the Veteran was granted a 100 percent rating, effective May 3, 2010. This is the highest rating available. As such, this rating period, from May 3, 2010, will not be discussed, as the highest rating available is already assigned. Prior to April 23, 2009 An October 2007 VA treatment note indicated that there was no evidence of pulmonary hypertension. A March 2009 letter from the Veteran's private physician stated that the Veteran underwent an extensive pulmonary evaluation, which involved a pulmonary function study performed on December 2008. The physician stated that results of the pulmonary function study revealed a normal spirometric value, with no evidence of restrictive lung disease. Diffusion capacity was near normal, indicating a normal pulmonary function study. As discussed, to warrant a compensable rating of 10 percent, pulmonary function tests must reveal a FVC of 75- to 80-percent predicted, or DLCO (SB) of 66- to 80-percent predicted. After a review of the pertinent evidence, the Board determines that a compensable initial rating is not warranted. Based on the above, prior to April 23, 2009, the Veteran's private physician indicated that pulmonary function tests were normal, with a normal spirometric value, and diffusion capacity was near normal. Evidence does not indicate that he had cor pulmonale, or pulmonary hypertension. Likewise, this disability did not require outpatient oxygen therapy. Thus, the record does not reflect the symptoms required for a higher rating under Diagnostic Code 6833, prior to April 23, 2009. Therefore, the Board finds that the preponderance of the evidence is against a compensable schedular rating for this time period. Hence, the appeal must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. From April 23, 2009 to May 2, 2010 In a September 2011 rating decision, the Veteran's rating was increased to 30 percent, effective April 23, 2009, the day the Veteran submitted a statement indicating his breathing was worse. In a June 2015 rating decision, the Veteran's rating was increased to 100 percent, effective May 3, 2010. In a January 2011 letter from the Veteran's private physician, it was noted that a March 23, 2010 Doppler study demonstrated moderate pulmonary hypertension. As such, the Board finds the Veteran is entitled to a rating of 100 percent, effective March 23, 2010. Unfortunately, the evidence of record does not demonstrate that the Veteran is entitled to a rating higher than 30 percent, from April 23, 2009 to March 22, 2010. There is no documented evidence during this time period that the Veteran had pulmonary hypertension, cor pulmonale or required outpatient oxygen therapy. The Board notes that it was asserted during the August 2014 Hearing that the Veteran had been receiving outpatient oxygen therapy since at least September 2009; however, there is no evidence of record documenting this. Furthermore, there is no evidence that pulmonary function tests between April 23, 2009 and March 22, 2010 demonstrated a 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. Thus, the record does not reflect the symptoms required for a higher rating under Diagnostic Code 6833, from April 23, 2009 to March 22, 2010. Therefore, the Board finds that the preponderance of the evidence is against a higher schedular rating for this time period. The Board recognizes the Veteran's statements attesting to his symptoms in support of his claim. The Board notes that laypersons can attest to observable symptomatology. In addition, the Veteran's statements describing his symptoms are considered competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Layno v. Brown, 6 Vet. App. 465, 469 (1994), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). These statements, however, must be viewed in conjunction with the objective medical evidence as required by the rating criteria. In this regard, the objective medical evidence, including the private records, VA treatment records, and the VA examination reports, include the information necessary to rate the Veteran's disability in accordance with the rating criteria, and the VA examiners considered the Veteran's reported symptomatology when providing their assessments. Furthermore, while the Veteran is competent to report on the presence of certain symptoms, he is not competent to opine as to his specific PFT levels, as confirmation of these symptoms requires precise medical testing. In conclusion, prior to April 23, 2009 and from April 23, 2009 to March 22, 2010, the preponderance of the evidence is against the assignment of an initial compensable rating and to a rating higher than 30 percent; however, from March 23, 2010, the Veteran is entitled to a rating of 100 percent. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. TDIU, Prior to April 23, 2009 The Veteran seeks entitlement to a TDIU. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). Nevertheless, even when a Veteran does not meet the percentage standards for schedular TDIU, he may be considered for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). However, the Board does not have the authority to assign extraschedular TDIU in the first instance. See 38 C.F.R. § 4.16 (b). A TDIU is considered a lesser benefit than a 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. The receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities does not necessarily always moot the issue of entitlement to a TDIU, however, because a TDIU rating may still form the basis for the assignment of SMC under 38 U.S.C. § 1114 (s) (2012). See Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the RO granted a total (100 percent) rating for the Veteran's service-connected coronary artery disease, effective April 23, 2009, by way of a December 2017 rating decision. In the December 2017 rating decision, the RO also granted SMC based on housebound status pursuant to 38 U.S.C. § 1114 (s), from April 23, 2009. Hence, there remains no time during the period from April 23, 2009 where the schedular rating is "less than total" and the Veteran is not already in receipt of SMC under 38 U.S.C. § 1114 (s). As such, the issue of entitlement to a TDIU from April 23, 2009 is moot and need not be addressed. The issue on appeal has therefore been narrowed to entitlement to a TDIU, prior to April 23, 2009. Prior to April 23, 2009, the Veteran is service connected for asbestos-induced pleural disease, rated noncompensable, from March 10, 2008, resulting in a combined rating of zero percent, prior to April 23, 2009. As such, the Veteran does not meet the minimum rating requirements of 38 C.F.R. § 4.16 (a). Consequently, the Board must consider whether referral to the Director of Compensation Service for extraschedular consideration is warranted. An assessment for extraschedular referral requires consideration of the Veteran's service-connected disability, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). Unemployability associated with advancing age or intercurrent (i.e. non-service connected) disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The fact that a Veteran is unemployed or has difficulty obtaining employment is not enough, as a schedular rating provides recognition of such. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The schedular criteria contemplate compensating a Veteran for considerable loss of working time from exacerbations proportionate to the severity of the disability. See 38 C.F.R. § 4.1. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. Referral for entitlement to TDIU on an extraschedular basis prior to April 23, 2009 has been considered, but there is no persuasive credible evidence that the Veteran was unemployable due to his service-connected disability. The Veteran was not provided with any VA examinations that addressed the functional impact of his asbestos-induced pleural disease, prior to April 23, 2009. Importantly, a letter from the Veteran's private physician, dated March 2009, indicates the Veteran suffered from shortness of breath and was unable to walk even short distances; however, the physician stated that a pulmonary function test completed in December 2008 revealed near normal results and an October 2008 arterial blood gases test was also within normal limits. The physician noted that the Veteran had asbestos-induced pleural disease that did not appear to significantly result in pulmonary function abnormalities. The Board acknowledges the Veteran's lay statements and that he reported he had not worked since the 1990's due to his breathing difficulties. However, the Board attaches greater probative weight to the medical evidence of record, the objective findings of which show his contentions were not proportionate to his actual pulmonary function testing results, prior to April 23, 2009. Accordingly, the Board finds the preponderance of the evidence is against the Veteran's claim that he was not capable of performing the physical and/or mental acts required by employment. As the preponderance of the evidence is against his claim, a schedular TDIU is not warranted prior to April 23, 2009, and referral for consideration of extraschedular TDIU, prior to April 23, 2009, is also not warranted. While the Board has considered the applicability of the benefit of the doubt doctrine, it is not applicable because the preponderance of the evidence is against his claim. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. V. SMC Based on the Need for Aid & Attendance The Veteran was granted entitlement to SMC based on housebound status in a December 2017 rating decision. Compensation at the higher rate of SMC, based on aid and attendance, is payable when the Veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: the inability of the claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; the inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one's daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. 38 C.F.R. § 3.352 (a). The term "loss of use of a hand or foot" is defined in VA regulations as existing when "no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with the use of a suitable prosthetic appliance." 38 C.F.R. § 3.350 (a)(2); 4.63. That regulation also provides that the determination as to whether such loss of use exists will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc, in the case of the hand, or balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. Id. Examples given are extremely unfavorable complete ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 inches or more, complete paralysis of the external popliteal nerve, and consequent foot drop accompanied by characteristic organic changes. Id. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the claimant be so helpless as to be in need of regular aid and attendance, not that there is a constant need. "Bedridden" constitutes a condition that, through its essential character, actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed, or that a physician has prescribed bed rest for a lesser or greater portion of the day will not suffice. In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court held that eligibility for SMC by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the claimant is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. The Veteran is service connected for coronary artery disease, rated 100 percent disabling, asbestos-induced pleural disease with pulmonary hypertension and chronic kidney disease, rated 100 percent disabling, bilateral lower extremity peripheral sciatic neuropathy with swelling, each rated as 20 percent disabling, bilateral hearing loss, rated as 10 percent disabling, tinnitus, rated as 10 percent disabling, right carotid artery stent, rated noncompensable, and residual scars of the chest and right thigh, rated noncompensable. The evidence does not show that the Veteran is service connected for anatomical loss or loss of use of both feet, or of one hand and one foot, or that he has a service-connected disability resulting in blindness in both eyes with visual acuity of 5/200 or less, or that he is permanently bedridden. Accordingly, the question before the Board is whether the Veteran's service-connected disabilities listed above, individually or collectively, require the Veteran to have regular aid and attendance of another person under the criteria defined in 38 C.F.R. § 3.352 (a) described above. In Turco v. Brown, 9 Vet. App. 222 (1996), the Court determined that it is not required that all of the conditions enumerated in the provisions of 38 C.F.R. § 3.352 (a) be found to exist in order to establish entitlement to aid and attendance, but that at least one of the enumerated factors must be present. The Court added that the particular function the claimant is unable to perform must be considered in connection with his or her condition as a whole and that it is only necessary to establish that the claimant is in need of regular aid and attendance, not that there be a constant need. In August 2014, the Veteran's wife testified that she has to remind the Veteran to take his medication, and indicated that although the Veteran likes to cook she has to remind him to turn the stove off. She testified that his memory has become worse. The Veteran was afforded a VA examination in January 2018. The examiner reported that the Veteran drove himself to the examination and was unaccompanied. The Veteran stated that he lived alone, as his wife was currently in a nursing home. It was noted that he was not bedridden, not currently hospitalized, and could travel outside his domicile. The Veteran described his typical day as consisting of waking in the morning between 8:30-9:00, he gets himself out of bed and prepares breakfast, then shaves, showers and dresses himself, without assistance. He indicated that he sits and watches television during the day, prepares snacks and juices using fruits and vegetables throughout the day, takes medications, and writes. He also goes to the pool at the gym five days a week. When he returns home from the pool, he gets on the computer and reads various materials. Although he indicated he can drive, he prefers not to and usually gets a female friend to drive him for errands. The Veteran stated he can cook at home for dinner, but prefers not to because he does not like to clean the kitchen. After dinner, he goes to a friend's house and plays cards and returns home approximately 8:00-9:00 pm. There was no reported dizziness, memory loss, or use of an orthopedic or prosthetic appliance, although the Veteran did report occasional imbalance affecting his ability to ambulate. The examiner noted that the Veteran was able to perform all self-care skills. It was noted that the Veteran ambulates with the assistance of a walker for long distances and a cane for shorter distances due to shortness of breath. Function of the upper and lower extremities was normal. Examination revealed the Veteran was oriented to person, time and place; he had a normal gait, was not bedridden and did not reside in a nursing home. The examiner stated the Veteran had an active lifestyle for his age and was independent in his activities of daily living. After considering the totality of the record, the Board finds the Veteran is not entitled to SMC for aid and attendance. The Veteran has serious service-connected disabilities, but is able to live an active lifestyle and complete his activities of daily living without relying on the help of another person to function inside or outside the home, to manage finances or medications, or to generally maintain a relatively normal lifestyle. None of the specific criteria for aid and attendance are shown. There is no indication the Veteran is functionally unable to dress himself or to keep himself ordinarily clean and presentable. The Veteran has no special prosthetic or orthopedic appliance for which he needs assistance in adjustment. The Veteran has some occasional difficulty with imbalance and memory; however, he has normal function of the upper and lower extremities, and is able to cook for himself. He is not shown to be unable to attend to the wants of nature, or to require protection from any hazards or dangers incident to his daily environment. Thus, none of the criteria cited in 38 C.F.R. § 3.352 (a) are met. The Board has carefully considered the holding in Turco that the provisions of 38 C.F.R. § 3.352 (a) may be satisfied if just one of the enumerated factors is present on a regular, not necessarily constant, basis. The Board acknowledges that the Veteran has occasional difficulty with imbalance; however, as shown above, the evidence does not show the need for regular aid and attendance of another person within the parameters of 38 C.F.R. § 3.352 (a), as articulated in Turco. In sum, the medical and lay evidence of record does not persuasively establish that the Veteran's service-connected disabilities result in physical or mental incapacity that prevents him from attending to the needs of nature, caring for himself, or protecting himself from the hazards of his environment. Accordingly, the criteria for SMC for aid and attendance are not met and the claim must be denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to service connection for bilateral cataracts, to include as secondary to service-connected asbestos-induced pleural disease, is denied. Entitlement to service connection for edema of the bilateral hands, to include as secondary to service-connected asbestos-induced pleural disease, is denied. Entitlement to an initial compensable rating for asbestos-induced pleural disease, prior to April 23, 2009 is denied. Entitlement to a rating higher than 30 percent, from April 23, 2009 to March 22, 2010, for asbestos-induced pleural disease is denied. Entitlement to a rating of 100 percent, from March 23, 2010 to May 2, 2010, for asbestos-induced pleural disease is granted. Entitlement to a TDIU, prior to April 23, 2009, is denied. Entitlement to SMC based on the need for aid and attendance due to service-connected disabilities is denied. ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs