Citation Nr: 21001415 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 11-06 189 DATE: January 8, 2021 ORDER Entitlement to a rating in excess of 10 percent for asbestosis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s pulmonary function tests (PFT) showed an FVC of 75- to 80- percent predicted and a DLCO (SB) of 66- to 80-percent predicted. 2. The Veteran’s service-connected disabilities did not preclude him from obtaining and maintaining substantially gainful employment consistent with his level of education, prior work history and training. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for asbestosis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.96, 4.97, Diagnostic Code 6833. 2. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) are not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1951 to December 1954. The Veteran died in October 2011 and the appellant is his spouse. This March 2011 appeal comes before the Board of Veterans’ Appeals (Board) from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Philadelphia, Pennsylvania which continued a rating of 10 percent for the Veteran’s service-connected asbestosis. In a September 2015 Board hearing, the appellant testified that the Veteran was unable to work due to his service-connected disabilities. The appellant was sent notice in December 2015 that the Veterans Law Judge who presided over the hearing was no longer available and that she had the right to a new hearing prior to a decision; the appellant responded in January 2016 that she did not want an additional hearing. The Board remanded the appellant’s claim in February 2016 on the issue of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The RO issued a September 2020 supplemental statement of case (SSOC), the case was then returned to the Board for adjudication. 1. Entitlement to a rating in excess of 10 percent for asbestosis Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the entire recorded history, and each disability must be considered from the viewpoint of the Veteran working or seeking wok. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all increased rating claims, staged ratings must be considered for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s). Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected lung condition, diagnosed as asbestosis is rated pursuant to 38 C.F.R. § 4.97, Diagnostic Code (DC) 6833. Asbestosis is rated under the General Rating Formula for Interstitial Lung Disease (General Rating Formula). 38 C.F.R. § 4.97, DC 6833. Under the General Rating Formula, a 10 percent rating is warranted where the Forced Vital Capacity (FVC) is 75 to 80 percent of predicted value or the Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (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, DC 6825 to 6833. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are performed for disability evaluation purposes except in instances where the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done. Post-bronchodilator results are to be utilized in applying the evaluation criteria in the Rating Schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. The pre-bronchodilator values are to be used for rating purposes in those instances. 38 C.F.R. § 4.96(d)(5). If the DLCO (SB) test is not of record, the disability may be rated based on alternative criteria as long as the examiner explains why the DLCO (SB) test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2) (2019). The Veteran was granted service connection for asbestosis in a July 1991 rating decision effective January 8, 1991, the date of his claim. He filed an October 2007 statement requesting an increased rating contending the condition had gotten worse. In support of his claim, the Veteran summited medical records including a September 2007 chest x-ray report that indicated the Veteran had extensive bilateral pleural plaques, consistent with asbestosis exposure. See October 2007 Private Medical Treatment Records. Further, the appellant testified that the Veteran’s condition had started to progressively worsen in approximately 2008 or 2009 causing him to be out of breath a lot and he was unable to walk very far. See September 2015 Hearing Transcript. During an April 2008 VA examination, the Veteran reported shortness of breath that occurred daily, dyspnea on exertion while walking or working as a machinist, constant wheezing and a cough. The Veteran reported that he used oxygen throughout the night at a rate of 2 liters per minute. The VA examiner noted that the Veteran had congestive heart failure, however it was not clear if the Veteran had pulmonary hypertension, cor pulmonale, or right ventricular hypertrophy. Id. The VA examiner noted the Veteran was unable to work full time, however he was able to work on motors if he was sitting as opposed to standing. Id. A pulmonary function test (PFT) was performed and indicated a post-bronchodilator FVC of 84.3 percent predicted and a DLCO (SB) of 71.1 percent predicted. Id. A November 2010 VA medical treatment record states the Veteran’s asbestosis was stable, that the Veteran used an inhaler, however the Veteran was currently not using oxygen. See June 2020 VA Medical Treatment Records. The Board finds that during the period of appeal a rating in excess of 10 percent for asbestosis is not warranted. The Veteran’s PFT indicated a post-bronchodilator FVC of 84.3 percent predicted and a DLCO (SB) of 71.1 percent predicted. There is no evidence of record that his FVC was 65- to 74- percent predicted or that his DLCO (SB) was 56- to 65- percent predicted. There is no diagnosis of pulmonary hypertension (documented by electrocardiogram or cardiac catherization), cor pulmonale, or right ventricular hypertrophy. The Board has considered the appellant’s testimony; however, the rating criteria require the use of pulmonary function test results and subjective lay statements regarding the Veteran’s functioning do not approximate such tests. Therefore, a rating in excess of 10 percent for asbestosis is not warranted. 38 C.F.R. §§ 4.96(d)(1), 4.97, DC 6833. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 10 percent for asbestosis. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) In a February 2016 remand, the Board remanded the issue of entitlement to TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), based on testimony by the appellant that the Veteran was unable to work due to his disability. In a September 2020 supplemental statement of case (SSOC) the RO denied the Veteran a TDIU stating that the Veteran’s disability did not preclude him from obtaining and maintaining gainful employment. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Entitlement to a total rating must be based solely on the impact of the Veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). The term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) has two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the Veteran’s history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the adjudicator, not a medical examiner”). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. As of March 2007, the Veteran was service connected for asbestosis rated at 10 percent, effective January 8, 1991. During this period, the Veteran did not have either 1) one service-connected disability rated at 60 percent or 2) two or more disabilities with at least one disability rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Therefore, as of March 2007, the Veteran did not meet the schedular TDIU requirements. Id. Entitlement to a TDIU may still be granted on an extraschedular basis under § 4.16(b). This additional subpart of this governing VA regulation indicates 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. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), such as the case here, rating boards can refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. See 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, despite the Veteran not meeting the percentage requirements for schedular TDIU, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions which would have justified a TDIU. See 38 C.F.R. §§ 3.341(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board cannot assign an extraschedular TDIU evaluation in the first instance under § 4.16(b). Here, the Board must make the initial determination as to whether referral to the Director of Compensation for an extraschedular TDIU rating under § 4.16(b) is warranted. Ray v. Wilkie, 31 Vet. App. 58, 62-66 (2019). After weighing the medical and lay evidence of record, the Board finds that the criteria for referral of TDIU on an extraschedular basis are not met. See 38 C.F.R. § 4.16(b). There is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disability from March 2007. Ray, 31 Vet. App. at 62-66. The appellant indicated that the Veteran had a high school degree and was the owner of an engine building and repair business from approximately 1997 until 2008 when he transferred ownership to his son. See June 2020 Veterans Application for Increased Compensation Based on Unemployability. Prior to operating his business, the Veteran was gainfully employed over the course of 30 years as an automobile mechanic and real estate developer. See September 2009 Medical Treatment Records, SSA. Turning to the non-economic aspects of his employability, the Veteran’s service-connected disability alone, while certainly causing impairment, does not appear to have impacted his functional ability severely enough to preclude all employment. As discussed above, the Veteran was service connected for asbestosis rated at 10 percent and asserted that this caused shortness of breath and prevented him from walking very far. In an April 2008 VA examination, the Veteran stated he had last worked 40 hours per week in his early 60’s but was working part-time as a machinist/engine builder. The Veteran stated that he could no longer work while standing but would sit and work on the motors. Id. The Veteran’s statements suggest that he was still able to continue to perform occupational tasks for his profession with slight modifications. During a September 2015 hearing, the appellant testified that as the Veteran’s disabilities began to worsen in 2008 or 2009, that the Veteran lost his business and couldn’t work anymore. She stated that his breathing was an issue and he couldn’t walk very far. She further testified that he had Alzheimer’s disease and the condition was gradually getting worse and he had to quit working because he couldn’t remember anything. Id. As discussed above, the Veteran indicated that he was accommodating his physical limitations due to his asbestosis by sitting while working. However, the appellant’s testimony suggests that as of 2008 or 2009 the Veteran no longer had the mental ability to complete the occupational tasks necessary to maintain employment, but this was due to his non-service-connected Alzheimer’s disease and not his asbestosis disability. In a July 2020 VA medical opinion, the VA examiner opined that it was less likely than not that the Veteran’s service-connected asbestosis alone prohibited the Veteran from obtaining and maintaining substantially gainful employment. The VA examiner did a complete file review and noted that the Veteran’s medical records indicated that there was no significant change in spirometry between October 2002 and April 2008. Further, the Veteran’s PFT did not indicate a significant pulmonary functional impairment that would preclude the Veteran from seeking employment based on his asbestosis alone. Id. The evidence of record does not support that the Veteran was unable to obtain or maintain substantially gainful employment due to his asbestosis alone. The Veteran’s occupational impairment from his asbestosis manifested in shortness of breath and inability to walk long distances or stand for extended periods of time, however the Veteran indicated that he would sit as opposed to standing while working on his engines. See April 2008 VA Examination. Further, the July 2020 VA examiner stated Veteran’s PFT did not indicate a significant pulmonary functional impairment that would preclude the Veteran from seeking employment. Importantly, the Veteran’s PFTs has been stable since at least 2002, while the Veteran was employed as a mechanic. Thus, the Veteran’s current level of service-connected disability is compatible with employment in the marketplace. The Board finds there is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disability and therefore extraschedular referral for a TDIU is not warranted. 38 C.F.R. § 4.16(b). As the preponderance of the evidence is against referral of the (Continued on the next page)   TDIU claim on an extraschedular basis under § 4.16(b), the benefit of the doubt doctrine is not applicable, and a TDIU must be denied. 38 U.S.C. § 5107(b). J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Aubee, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.