Citation Nr: 18120223 Decision Date: 07/20/18 Archive Date: 07/20/18 DOCKET NO. 13-23 844 DATE: July 20, 2018 ORDER Entitlement to service connection for a thyroid disorder diagnosed as hypothyroidism, to include due to exposure to herbicides, asbestos exposure, or secondary to service-connected disability is denied. Entitlement to service connection for a heart disability, claimed as coronary artery disease (CAD), to include as due to exposure to herbicides, asbestos exposure, to include as a result of asbestos exposure or secondary to service-connected disability is denied. Prior to July 9, 2015, entitlement to an initial compensable rating for asbestos-related respiratory disability is denied. From July 9, 2015 to November 27, 2017, entitlement to a 30 percent rating for asbestos-related respiratory disability, is granted, subject to the law and regulations governing the payment of monetary benefits. From November 28, 2017, entitlement to a 100 percent rating for asbestos-related respiratory disability, is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran did not have service in Vietnam including aboard a vessel in the inland waterways, or in other locations of herbicide exposure; he was not presumptively exposed to herbicides during service. 2. The Veteran’s thyroid and heart disabilities including CAD, are not attributable to service including inservice asbestos exposure; a heart disability including CAD was not manifest in the initial post-service year; and thyroid and heart disabilities including CAD are not etiologically related to service-connected pericardial cyst removal. 3. Prior to July 9, 2015, pulmonary function testing (PFT) did not show Forced Vital Capacity (FVC) of 65- to 74-percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 56- to 65-percent predicted. 4. From July 9, 2015 until November 27, 2017, PFTs did not reveal findings as severe as FVC of 50 to 64 percent of predicted value; DLCO (SB) of 40 to 55 percent predicted value; or maximum exercise capacity of 15 to 20 ml/kg in oxygen consumption with cardiorespiratory limitation. 5. From November 28, 2017, the Veteran has required the use of oxygen therapy due to respiratory impairment including asbestos-related disability. CONCLUSIONS OF LAW 1. A thyroid disorder was not incurred or aggravated in active service nor is a thyroid disorder due to, the result of, or aggravated by service-connected pericardial cyst removal. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.310(a). 2. A heart disability including CAD was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein nor is a heart disability including CAD proximately due to, the result of, or aggravated by service-connected pericardial cyst removal. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137; 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.310(a). 3. Prior to July 9, 2015, the criteria for an initial compensable rating for asbestos-related respiratory disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6833. 4. From July 9, 2015 to November 27, 2017, the criteria for a 30 percent rating, but no higher, for the asbestos-related respiratory disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6833. 5. From November 28, 2017, the criteria for a 100 percent for the asbestos-related respiratory disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6833. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1954 to July 1958, October 1958 to October 1960, and July 1964 to February 1968. The case was last remanded by the Board to the Agency of Original Jurisdiction in December 2016 for additional development. Herbicide Exposure VA law and regulations provide that a chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than the ones listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. Further, in certain circumstances, veterans who served in vessels in the inland waterways of Vietnam were exposed to herbicides. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In addition, in certain circumstances, a veteran may have been exposed to herbicides while serving in other locations such as Thailand and Korea. For example, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the department of Defense, operated in or near the Korean demilitarized zone (DMZ), in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such serve to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. See also 38 C.F.R. § 3.814(c)(2). 38 C.F.R. § 3.307 (a)(6)(iv). Also, in some limited instances, herbicide exposure in Thailand is recognized. See M21-1 Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.r. If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin’s disease; all chronic B cell leukemias; multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including CAD (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina). The lists of diseases that are presumed to be related, or due to, herbicide exposure are updated by the Secretary based on information provided by the National Academy of Sciences (NAS). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924 - 47,928 (Aug. 10, 2012). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Board notes that in the notice of proposed rulemaking, it was explained that the term “ischemic heart disease” does not encompass hypertension or peripheral manifestations of arteriosclerotic heart disease, such as peripheral vascular disease or stroke. Note 2 of section 3.309(e) expressly states that the term ischemic heart disease does not include hypertension. 38 C.F.R. § 3.309(e). Consequently, service connection is not warranted for hypertension under the provisions of presumptive service connection pertaining to exposure to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. In this case, the Veteran asserts that his service aboard the USS Intrepid in the waters outside of Vietnam exposed him to herbicides VA’s General Counsel has concluded that in order to establish qualifying “service in Vietnam” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam for purposes of 38 U.S.C. § 101(29)(A) (establishing that the term “ Vietnam era” means the period beginning on February 28, 1961 and ending on May 7, 1975 in the case of a veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. In order for the presumption of service connection based upon herbicide exposure to apply, a veteran must have set foot on the landmass of the country of Vietnam or served in the inland waters of Vietnam. Haas. M21-1, Part IV, Subpart ii, 2.C.3.m. states that exposure to herbicide is established on a presumptive basis if the evidence shows that the ship (1) operated primarily on the inland waterways of Vietnam, such as river patrol boats, (2) operated temporarily on the inland waterways of Vietnam, (3) docked to a pier or shore of Vietnam and the claimant provides a statement of personally going ashore, (4) operated on the offshore waters of Vietnam, if the conditions of service involved duty or visitation on the ground in Vietnam, or (5) operated in other locations, if the conditions of service involved duty or visitation on the ground in Vietnam. M21-1, Part IV, Subpart ii, 2.C.3.m. also states that exposure to herbicide is established on a presumptive basis if the evidence places the Veteran onboard the ship at the time the ship docked to the shore or pier or operated in inland waterways, and the Veteran has stated that he went ashore when the ship docked or operated on close coastal waters for extended periods, if the evidence shows the ship docked to the shore or pier or that crew members were sent ashore when the ship operated on close coastal waters. In this regard, for purposes of adjudicating claims involving veterans serving aboard U.S. Navy vessels, VA has made a distinction between “Brown Water” Navy vessels (smaller vessels that “operated on the muddy, brown-colored inland waterways of Vietnam:) and “Blue Water” Navy vessels (“larger gun line ships and aircraft carriers... operat[ing] on the blue-colored waters of the open ocean.”). See, e.g., Veterans Benefits Administration (VBA) Compensation and Pension Training Letter 10-06, at 3 (Sept. 9, 2010). Veterans who served in deep-water naval vessels off the coast of Vietnam during the Vietnam War are referred to as “Blue Water Navy Veterans,” and there is no presumption of exposure to herbicides for such claimants. See Presumption of Exposure to Herbicides for Blue Water Navy Vietnam Veterans Not Supported, 77 Fed. Reg. 76170 (Dec. 26, 2012). Service on a deep-water vessel off the shores of Vietnam is not considered service in Vietnam for purposes of 38 C.F.R. § 3.307(a)(6). VAOPGCPREC 27-97. In order for the presumption of exposure to be extended to a “blue water” Navy veteran, the evidence must show that the Veteran’s ship operated temporarily on the inland waterways of Vietnam or that it docked to the shore or a pier. See, e.g., VBA Compensation and Pension Training Letter 10-06, at 3 (Sept. 9, 2010). “Inland waterways” are not defined in VA regulations; however, the VA Adjudication Procedure Manual provides interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam “brown water” Navy operated. See Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k. Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore. Id. A document compiled for VA entitled “Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents” contains a list of ships that operated primarily or temporarily on Vietnam’s inland waterways, ships that docked to the shore or pier in Vietnam, and ships that operated on Vietnam’s close coastal waters for extended periods of time with evidence that crew members went ashore or that smaller vessels from the ship went ashore regularly with supplies or personnel. In this case, the record does not show that the Veteran physically stepped foot in Vietnam or any other area subject to presumptive herbicides exposure. The Board further notes that the USS Intrepid is not one of the recognized Vietnam “brown water” vessels. Thus, there is no presumption that the Veteran was exposed to Vietnam on that basis. In March 2017, the RO contacted the Joint Service Records Research Center (JSRRC) to verify any claimed exposure to herbicides while stationed aboard the USS Intrepid. Thereafter, in a July 2017 response which indicated that after a review of the command history of the USS Intrepid, the history and deck logs did not document that the ship docked, transited inland waterways or that the ship’s personnel stepped foot in the Republic of Vietnam. Moreover, the JSRRC was unable to verify or document that the Veteran was exposed to Agent Orange or other herbicides while stationed aboard the USS Intrepid from September 2, 1965 to May 6, 1967, as the ship is not on the list of ships operating primarily or exclusively on Vietnam’s inland waterways or docking to shore. In addition, a review of Compensation Services Navy and Coast Guard Ships associated with service in the Republic of Vietnam, and exposure to herbicide agents lists, did not identify the USS Intrepid in any category for herbicide exposure. Based on the foregoing evidence, VA cannot concede any exposure to herbicides. As such, the Veteran is not presumed to have been exposed to herbicides during service, and, to the extent that he has a diagnosis of a presumptive disorder (CAD), he is not entitled to presumptive service connection based on herbicide exposure. A thyroid disorder is not among the presumptive diseases. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection (for a thyroid disorder and for a heart disorder) can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, cardiovascular or valvular heart disease will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran’s separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to “chronic diseases” enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a “second route by which a veteran can establish service connection for a chronic disease” under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during the] presumptive period.” Id. (holding that section 3.303(b) provides an “alternative path to satisfaction of the standard three-element test for entitlement to disability compensation”). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury. Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (“the Court”) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service Connection The service treatment records (STRs) do not reflect a thyroid disorder nor was a thyroid disorder shown for many years after service. The STRs also do not reflect heart disease nor was heart disease shown within a year of service or for many years thereafter. The Veteran submitted a private physician statement from Dr. H.B., dated in April 2006 indicating CAD was at least as likely as not related to service, but the examiner gave no rationale whatsoever for this opinion; rather he checked the line provided for “at least as likely as not.” The Veteran also underwent a VA examination in July 2009. The examiner determined that neither the Veteran’s CAD nor thyroid disorder was related to asbestos exposure in service, but this examiner also failed to provide an adequate rationale for the opinions rendered. The RO then obtained a VA opinion in October 2014 which only addressed whether the Veteran’s heart disability was related to his inservice pericardial cyst removal. Specifically, she opined that the Veteran had undergone a pericardial cyst removal in 1967 during service, but this did not cause CAD, cardiomyopathy, or the need for pacemaker. Rather, these are conditions that are caused by specific risk factors for CAD and not a procedure such as cyst removal. Thus, it was less likely than not that CAD, cardiomyopathy, and the need for a pacemaker are due to or aggravated by pericardial cyst removal. In June 2016, VA medical opinions were obtained. The thyroid opinion indicated that the Veteran was diagnosed with hypothyroidism approximately 35 years after service and that there is no recognized connection between asbestos exposure and hypothyroidism, which is an autoimmune condition. Therefore, the examiner concluded that hypothyroidism was less likely than not related to service. There was no secondary service connection opinion. The heart opinion indicated that the Veteran’s CAD was diagnosed many years after service and there is no evidence that CAD is secondary to or related to asbestos-caused disease. This report did not include a secondary service connection opinion. Although this examiner indicated that the Veteran should investigate the possibility that he may be deemed as having been Agent Orange exposed, as noted above, there was no such exposure. In January 2017, a medical opinion was provided. The examiner noted that the Veteran was exposed to asbestos while in service (which has been conceded). During service, the Veteran had a resection of a pericardial cyst. Such a condition and the surgery therefore is in no way related to his CAD or hypothyroidism medically or the course of progression of his heart or thyroid condition. Therefore, it is less likely than not that those conditions were caused by or aggravated in their progression by the pericardial cyst or the surgery for the cyst. In November 2017, a VA medical opinion indicated that it is less likely than not that the development of the Veteran’s need for a pacemaker for SVT and AF and his CAD is due to his prior pericardial cyst resection. These are structural heart conditions that developed due to possible risk factors that are independent of surgery in or around the pericardium. The examiner stated that it is less likely than not, that any current heart disorders have been permanently aggravated by the Veteran’s service-connected pericardial cyst, including the right resection surgery for that cyst. The examiner also opined that it is less likely than not that the Veteran’s hypothyroidism is due to the Veteran’s pericardial cyst resection. The examiner stated that these conditions are independent of each other with different pathophysiological mechanisms with the thyroid condition occurring spontaneously and usually having an autoimmune component and the pericardial surgery was not in the Veteran’s area of his thyroid gland. The examiner indicated that it is less likely than not, that any current thyroid disorder had been permanently aggravated by the Veteran’s service-connected pericardial cyst, including the right resection surgery for that cyst. Asbestos Exposure There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans’ Administration, DVB Circular 21-88- 8, Asbestos Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have been included in VA Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chap. 1, Sec. I., Para. 3 (August 7, 2015) (M21-1). Also, an opinion by VA’s Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00 (April 13, 2000). The aforementioned provisions of M21-1 have been rescinded and reissued as amended in 2015. See M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, entitled “Service Connection for Disabilities Resulting from Exposure to Environmental Hazards or Service in the Republic of Vietnam (RVN).” VA must analyze the Veteran’s claim of under these administrative protocols using the specified criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos -related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 2f. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. With regard to occupational exposure, exposure to asbestos has been shown in insulation, mining, milling, demolition of old buildings, carpentry and construction, and shipyard workers, and others including workers involved in the manufacture and servicing of friction products such as clutch facings and brake linings. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 2a-g. Further, asbestosis is a pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles.” See McGinty. Neither the M21-1 provisions nor the DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) create a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines that serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers, and they direct that the raters develop the record, ascertain whether there is evidence of exposure before, during, or after service, and determine whether the disease is related to the putative exposure. Thus, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. The Veteran in this case had asbestos exposure. However, CAD and thyroid disorders are not among the asbestosis-related disorders which are enumerated as various lung disorders and cancers. Moreover, the medical opinions did attribute current diagnoses to asbestos exposure. Direct and Secondary Service Connection 1. Entitlement to service connection for a thyroid disorder diagnosed as hypothyroidism. 2. Entitlement to service connection for a heart disorder including CAD. The question for the Board is whether the Veteran has a current disability that began during service, a presumptive period if applicable, or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of thyroid and heart disabilities, the preponderance of the evidence weighs against a finding that these disabilities were manifest during service, that a heart disorder including CAD was manifest within one year of service, or that these diagnoses are otherwise related to an in-service injury, event, or disease or to service-connected pericardial cyst removal. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). There was not diagnosis of thyroid or heart disabilities for many years post-service. While the Veteran is competent to report having experienced heart symptoms such as chest pain or thyroid-type symptoms, the medical opinions are more probative regarding the causation of the current disabilities as this involves complicated medical questions and assessments. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Although Dr. H.B. provided a positive medical opinion regarding the etiology of current heart disability, this opinion is not probative because no rationale was provided. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Conversely, the VA medical opinions, particularly the most recent opinions, indicated that the current thyroid and heart diagnoses are not etiologically connected to service and are not etiologically related to the service-connected pericardial cyst removal, including on the basis of aggravation. As these opinions cumulatively were thorough and consistent with the record, they are probative. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The VA medical opinions are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight, taken together, to the VA medical opinions, cumulatively. 3. Entitlement to an initial compensable disability evaluation for asbestos related respiratory disability from December 17, 2008; in excess of 30 percent from June 1, 2016; and in excess of 60 percent from November 28, 2017. Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), 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 evaluation 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 reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In deciding the Veteran’s increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. Asbestosis is rated under the General Rating Formula for Interstitial Lung Disease. 38 C.F.R. § 4.97, Diagnostic Code 6833. The General Rating Formula for Interstitial Lung Disease provides that a 10 percent disability rating will be awarded where Pulmonary Function Tests (PFTs) show FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66- to 80-percent predicted. 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. December 2008 private medical records revealed that PFTs showed an FEV-1 of 2 44 liters (67% predicted), FVC of 3.34 liters (72% predicted), and ratio of 73 percent. These were of suboptimal effort but stable. A high resolution computerized tomography (CT) scan without contrast demonstrated extensive bilateral calcified and noncalcified pleural plaques. The Veteran was continued on Advair. In July 2009, the Veteran was afforded a VA examination. Pulmonary examination revealed clear right and left lung lobes. There was no history of hemoptysis. There was a history of wheezing and dyspnea occasionally at rest and with exertion. There was no history of anorexia. There was a history of chest pain occasionally at rest. There was no history of swelling. There was no history of respiratory failure. There was no history of fever. There had not been periods of incapacitation. There were no abnormal respiratory findings. Diaphragm excursion and chest expansion were normal. There was no chest wall scarring or deformity. There were no conditions that may be associated with pulmonary restrictive disease. The diagnosis was reactive airway disease consistent with asthma. There were effects on usual daily activities. The lung disease mildly affected traveling and bathing; moderately affected chores, shopping, and recreation; and prevented exercise and sports. There was no evidence of cor pulmonale, pulmonary hypertension, or RVH. Additional PFTs were not performed since the prior private PFTs. A January 2010 CT revealed an approximately 10 mm noncalcified nodule in the medial aspect of the right middle lobe. Multiple calcified and noncalcified pleural plagues were seen in the left hemithorax which might represent asbestos related pleural disease if the Veteran had significant asbestos exposure history. An x-ray suggested chronic obstructive pulmonary disease (COPD). The Veteran was subsequently seen by VA for respiratory complaints. In August 2011, the Veteran was afforded a VA examination. He stated that he was on oxygen for 60 percent of the time. It was noted that the Veteran had a gradual onset of shortness of breath that had become much worse in the past two years. He was using a daily inhaled bronchodilator, inhaled anti-inflammatory, and an oral bronchodilator. He was not taking steroids or antibiotics. His treatment response was poor. He had abnormal breath sounds on both sides with wheezing. His diaphragm excursion and chest expansion were moderately limited. There were no conditions that may be associated with pulmonary restrictive disease or chest wall scarring. PFTs were essentially normal with no obstruction and normal diffusion. Specific findings were as follows: FVC ref 4.54, pre 3.75 percent, 83 percent predicted; FEV1 ref 2.86, pre 2.50 percent; 84 percent predicted; FEV1/FVC ref 67 pre 67; DLCO ref 22.5 pre 21.7 percent, 97 percent predicted. As PFT s were essentially normal, no bronchodilator was given. CT revealed a stable 10 mm right middle lobe nodule; interval surgical repair of the ascending thoracic aortic aneurysm, otherwise stable diffuse dilatation of the thoracic aorta with the proximal descending aorta reaching a caliber of about 5 cm; and bilateral pleural plaque compatible with previous asbestos exposure with trace new bilateral pleural effusions. An April 2013 CT showed bilateral pleural effusions (left greater than right) with overlying atelectasis and/or consolidation. The Veteran also had congestive heart failure. The Veteran continued to be treated for respiratory impairment. He reported that he used oxygen at night although no prescription for oxygen is reflected in the record. On July 9, 2015, the Veteran underwent private PFT testing revealed FEV-1 of 50 percent of predicted; FVC of 65 percent predicted; and DLCO of 76 percent of predicted. On June 1, 2016, the Veteran was afforded a VA examination. It was noted that he used inhalational bronchodilator therapy daily. He did not use oral bronchodilators and he did not take antibiotics. He required outpatient oxygen therapy, but not continuously. X-rays and CT revealed scattered calcified and noncalcified pleural plaques; interstitial scarring at the lung bases; and that the lungs were otherwise clear. PFTs were performed and accurately reflected the Veteran’s current pulmonary function. Pre-bronchodilator reflected FVC: 72 percent predicted; FEV-1: 60 percent predicted; FEV-1/FVC: 84 percent predicted; and DLCO: 57 percent predicted: Post-bronchodilator testing reflected: FVC: 70 percent predicted; FEV-1: 64 percent predicted; and FEV-1/FVC: 90 percent predicted. On November 28, 2017, the Veteran was afforded another VA examination. At that time, the Veteran reported that he continued to have episodes of non-productive cough, worse at night and with exposure to dust although the latter is less common for him right now as he is retired. He also reported during oxygen at home. He required chronic low dose (maintenance) corticosteroids. The Veteran also used inhalational bronchodilator therapy and inhalational anti-inflammatory medication daily. He did not use oral bronchodilators or antibiotics. The diagnoses were asbestosis and COPD. X-rays revealed marked chronic bilateral pleural thickening and probable bilateral calcified pleural plaques. Pre-bronchodilator testing revealed FVC: 50 percent predicted; FEV-1: 40 percent predicted; FEV-1/FVC: 76 percent predicted; and DLCO: 69 percent predicted. Post-bronchodilator testing revealed FVC: 53 percent predicted; FEV-1: 46 percent predicted; and FEV-1/FVC: 68 percent predicted. The examiner indicated that the symptoms associated with the Veteran’s asbestosis could not be distinguished from those attributable to his COPD and cardiac disability. Prior to June 1, 2016, a noncompensable rating has been assigned. However, the July 9, 2015 PFTs reveal findings consistent with a 30 percent rating, but not before that time. At no time between July 9, 2015 and November 27, 2017 were the PFTs compatible with a higher rating of 60 percent. From November 28, 2017 the RO assigned a 60 percent rating; however, a higher 100 percent rating is warranted because the VA examiner specifically indicated that the Veteran required oxygen therapy. Although he previously reported using oxygen, no examiner indicated that this was necessary. Further, as noted, even if he currently requires oxygen for multiple conditions, they cannot be disassociated from each other and so shall be rated as part of his asbestosis. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran’s 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(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, prior to July 9, 2015, the preponderance of the evidence is against an initial compensable rating; as of July 9, 2015, the evidence supports a 30 percent rating but no higher; as of November 28, 2017, the evidence supports a higher rating of 100 percent. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Connolly, Counsel