Citation Nr: 21012390 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-50 480 DATE: March 4, 2021 ORDER Entitlement to an initial compensable rating for a service-connected spot on the right lung due to asbestos exposure is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to May 6, 2019, is remanded. FINDING OF FACT The Veteran does not manifest symptomology related to his service-connected spot on the right lung due to asbestos exposure. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for a service-connected spot on the right lung due to asbestos exposure have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.97, Diagnostic Codes (DC) 6820, 6833. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to August 1974. The Board notes that the Veteran has also filed claims of entitlement to service connection for chronic obstructive pulmonary disease (COPD) and emphysema, along with entitlement to service connection for an acquired psychiatric disorder. See May 2019 Claim. While the Agency of original Jurisdiction (AOJ) has adjudicated entitlement to service connection for an acquired psychiatric disorder by denying entitlement to service connection for anxiety and depression (December 2019 rating decision) and granting service connection for posttraumatic stress disorder (April 2020 rating decision), the claims for COPD and emphysema have apparently not yet been adjudicated by the AOJ. The September 2020 VA examiner has clearly explained different etiologies and symptomology between COPD and service-connected connected spot on the right lung due to asbestos exposure. The claims for entitlement to service connection for COPD and emphysema are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). 1. Entitlement to an initial compensable rating for a service-connected spot on the right lung due to asbestos exposure Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran’s claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). If two disability 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s service-connected spot on the right lung due to asbestos exposure is currently rated as noncompensable under DC 6820-6833. DC 6820 indicates benign neoplasms in any specified part of the respiratory system should be evaluated using an appropriate respiratory analogy. DC 6833 notes the rating for asbestosis. Under the General rating Formula for Interstitial Lung Disease for DCs 6825 through 6833, a ten percent rating is warranted for FVC of 75-to-80 percent predicted, or; DLCO (SB) of 66-to-80 percent predicted. VA treatment records contain imaging reflecting a right lung nodule and reflect treatment for the nodule. See, e.g., March, May, and June 2013 VA Treatment Records. During a November 2013 VA examination, the Veteran was diagnosed with a lung nodule and shortness of breath. The Veteran noted symptoms of nausea, chocking on saliva, abdominal discomfort, coughing, anorexia, dyspnea on exertion, headaches, chest pains, and tightness around heart. The examiner noted, however, that the Veteran also had diagnoses of migraine headaches, morphine dependence, anxiety disorder, abdominal pain, irritable bowel syndrome, depressive disorder, atrial fibrillation, chronic pancreatitis, gastroesophageal reflux disease, and lumbago. After reviewing the Veteran’s medical records and examining the Veteran, the examiner noted the lung neoplasm was benign. Pulmonary function testing (PFT) reflected, pre-bronchodilator, FVC 64 percent predicted; FEV-1 69 percent predicted; and FEV-1/FVC 108 percent. Testing also reflected, post-bronchodilator, FVC 43 percent predicted; FEV-1 47 percent predicted; and FEV-1/FVC 111 percent. The examiner, however, noted that the Veteran did not try to follow instructions during the PFT. The examiner also noted that the Veteran’s pancreatitis can cause breathing problems, and the examiner was unable to determine the percentages that each condition contributed to the Veteran’s symptomology without speculation. During a July 2016 VA examination, the Veteran was diagnosed with asbestosis/lung nodules. The Veteran reported ongoing symptoms of shortness of breath, cough, and sputum production. The examiner noted that the Veteran did not require daily use of corticosteroids, inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen. A PFT was ordered for August 2016. In an August 2016 addendum, a PFT reflected, pre-bronchodilator, FVC 52 percent predicted; FEV-1 52 percent predicted; and FEV-1/FVC 99 percent. Testing also reflected, post-bronchodilator, FVC 50 percent predicted; FEV-1 51 percent predicted; and FEV-1/FVC 102 percent. However, the examiner explicitly noted that, upon testing, the Veteran was unable to perform spirometry, the testing was technically inadequate, and no meaningful data was collected from testing. During a May 2019 VA examination, the Veteran was diagnosed with a spot on his right lung due to asbestos exposure. The Veteran reported current symptoms of shortness of breath, chest pains, and cough. The examiner noted that the Veteran required intermittent use of inhalation bronchodilator therapy. A July 2019 PFT reflected, pre-bronchodilator, FVC 32 percent predicted; FEV-1 17 percent predicted; and FEV-1/FVC 51 percent. Testing also reflected, post-bronchodilator, FVC 79 percent predicted; FEV-1 75 percent predicted; and FEV-1/FVC 81 percent. The Board notes that the same examiner appears to have completed a November 2019 VA examination as well, in which the examiner indicated the July 2019 PFT reflected, pre-bronchodilator, FVC 20 percent predicted; FEV-1 17 percent predicted; and FEV-1/FVC 51 percent, with no post-bronchodilator results. The Board further notes that a July 2019 VA letter to the Veteran indicated that the July 2019 PFT reflected, pre-bronchodilator, FVC 32 percent predicted; FEV-1 17 percent predicted; and FEV-1/FVC 51 percent. According to the letter, testing also reflected, post-bronchodilator, FEV-1 62 percent predicted. In September 2020, a VA examiner reviewed the Veteran’s medical records and determined that the Veteran’s pulmonary symptomology is not related to his service-connected spot on the right lung due to asbestos exposure. The examiner noted that the Veteran’s service-connected condition involves plaque related to asbestos exposure. However, the Veteran also has COPD with emphysematous changes that, based on current medical literature, is unrelated to his asbestos exposure. Further, the examiner determined that the Veteran’s PFTs reflected problems because of the Veteran’s post cerebral vascular accident (CVA) status. Most importantly, according to the examiner, very low FEV-1s, such as those demonstrated by the Veteran, indicate obstructive lung disease, not interstitial lung disease such as asbestosis. The examiner determined that the medical records reflected minimal findings consistent with asbestosis. During his May 2018 Board hearing, the Veteran testified that his symptoms had worsened and included more trouble breathing, production of yellow and dark red sputum, and the use of albuterol. The Veteran is competent to report experiencing respiratory symptomology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the Veteran’s testimony to be credible. However, the Veteran is not shown to be competent to opine that these symptoms are caused by his service-connected connected spot on the right lung due to asbestos exposure. The Veteran is not competent because he is not shown to possess the requisite medical training necessary to formulate an opinion in this regard. Id. Therefore, the Veteran’s opinion linking his symptomology to his service-connected disorder has no probative value. The best evidence of record is the well-reasoned September 2020 VA examiner’s opinion that clearly explains the Veteran’s respiratory symptomology, including his PFT results, are caused by his COPD and status post-CVA, and not related to his service-connected asbestosis. As the Veteran’s symptomology has a clear and separate cause, and the asbestosis has minimal related findings, a compensable rating for service-connected connected spot on the right lung due to asbestos exposure is not warranted. REASONS FOR REMAND 1. Entitlement to a TDIU rating prior to May 6, 2019, is remanded. Because a decision on the claims of entitlement to service connection for COPD and emphysema currently before the AOJ could significantly impact a decision on the issue of entitlement to a TDIU rating prior to May 6, 2019, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matters are REMANDED for the following action: After completing the appropriate action regarding the claims of entitlement to service connection for COPD and emphysema currently before the AOJ, adjudicate the claim of entitlement to a TDIU rating prior to May 6, 2019. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.