Citation Nr: 21073865 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 17-52 571 DATE: December 10, 2021 ORDER Entitlement to a rating in excess of 30 percent for asbestosis with pleural plaques and asthma is denied. REMANDED Entitlement to a total disability rating based on individual unemployment due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's service-connected asbestosis has not resulted in Forced Expiratory Volume in one second (FEV-1), FEV-1/Forced Vital Capacity (FVC), or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 40- to 55-percent of predicted value; FVC of 50- to 64-percent of predicted value; at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for asbestosis are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6833-6602 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active naval service from August 1966 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in November 2019, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for appellate review. In November 2020, VA contacted the Veteran to determine whether he wanted to undergo a pulmonary function test (PFT) to evaluate his lung function. At that time, the Veteran declined to undergo PFT. Therefore, the Board will make a decision based upon the evidence of record. Increased Rating Asbestosis The Veteran has asserted that he should have a higher rating for his asbestosis as his symptoms are worse than those contemplated by the currently assigned rating. A June 2014 VA examination report shows that the Veteran's asbestosis required inhaled medications, but did not require use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran had not experienced any asthma attacks with episodes of respiratory failure in the 12 months prior to the examination. A PFT indicated that, post-bronchodilator, FEV-1 was 85 percent of predicted value, and that FEV-1/FVC was 75 percent of predicted value. DLCO, pre-bronchodilator, was 77 percent of predicted value. The examiner noted that FEV-1/FVC most accurately reflected the Veteran's level of disability. At an April 2015 VA examination, the Veteran reported that since his last VA examination, he felt that his respiratory condition was not getting any better. He stated that he ran out of breath quicker than in the past and occasionally he coughed up some phlegm. He reported that he used no asthma-like medications. Medical records attached to the examination report showed that the Veteran's dilator therapy involved the use Albuterol Sulfate. The Veteran had not experienced any asthma attacks with episodes of respiratory failure in the 12 months prior to the examination. The examination report included the 2014 PFT results as noted above. A June 2015 active medication list included in the Veteran's VA treatment records reflected that the Veteran had been prescribed Albuterol for use every 6 hours as needed. A June 2017 VA examination report showed that the Veteran's disability required the use of inhalational bronchodilator therapy, but did not require use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran had not experienced any asthma attacks with episodes of respiratory failure in the 12 months prior to the examination. A PFT indicated that, post-bronchodilator, FVC was 96 percent of predicted value, FEV-1 was 95 percent of predicted value, and that FEV-1/FVC was 76 percent of predicted value. DLCO, pre-bronchodilator, was 85 percent of predicted value. The examiner noted that FEV-1/FVC most accurately reflected the Veteran's level of disability. At an August 2020 VA examination, the Veteran reported that his respiratory disability resulted in ongoing shortness of breath with exertion like climbing, and walking distances greater than 60 yards. The examination report noted that the Veteran's disability required the use of inhalational bronchodilator therapy, but did not require use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran had not experienced any asthma attacks with episodes of respiratory failure in the 12 months prior to the examination. An additional PFT was not performed. The Board finds that the Veteran is not entitled to a rating in excess of 30 percent for his asbestosis. In this regard, the evidence does not indicate that the Veteran's asbestosis has resulted in FEV-1, FEV-1/FVC, or DLCO of 40- to 55-percent of predicted value, or FVC of 50- to 64-percent of predicted value. The evidence also does not indicate that the Veteran had at least 3 intermittent courses of systemic corticosteroids in a one-year period, required at least monthly visits to a physician for required care of exacerbations, required the daily use of systemic high dose corticosteroids or immuno-suppressive medications, or had more than one asthma attack per week with episodes of respiratory failure. See 38 C.F.R. § 4.97, Diagnostic Codes 6602 and 6833. In reaching this conclusion, the Board has considered the Veteran's statements regarding the frequency and scope of his respiratory symptoms. However, the statements taken on their face do not establish entitlement to a higher rating based on the relevant criteria described above. In sum, the Board finds that the Veteran's asbestosis symptomatology is consistent with a 30 percent rating throughout the appeal period and that a higher rating is not warranted. REASONS FOR REMAND Entitlement to a TDIU The Veteran maintains that he is unable to secure or follow a substantially gainful occupation due to his service-connected asbestosis. Initially, the Board notes that despite numerous attempts to obtain the requested information from the Veteran, he has failed to submit a VA Form 21-8940 or otherwise provided any relevant employment related documentation to substantiate a claim of unemployability due to his service-connected disabilities. The Board also notes that the Veteran has a combined rating of 40 percent, and so, he does not meet the schedular criteria for assignment of a TDIU. Nevertheless, it is VA's established policy 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. Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). The evidence of record indicates that the Veteran reported that he stopped working as a result of his service-connected asbestosis. See June 2014 VA examination, April 2015 VA examination, and January 2016 NOD. As there is a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities, the Board finds that a remand is necessary for referral to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis. The matters are REMANDED for the following action: 1. Refer the claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). 2. Then, readjudicate the appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. SONJA A. MISHALANIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.