Citation Nr: 21027894 Decision Date: 05/06/21 Archive Date: 05/07/21 DOCKET NO. 18-41 407 DATE: May 6, 2021 ORDER An initial compensable rating for asbestos related pulmonary plaque from August 26, 2015, is denied. A rating in excess of 10 percent disabling for asbestos related pulmonary plaque from August 5, 2020, is denied. A total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to August 5, 2020, the Veteran's asbestos related pulmonary plaque was not manifested by pulmonary tests that showed Forced Vital Capacity (FVC) of 75- to 80-percent predicted or Diffusion Capacity for the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66- to 80-percent predicted. 2. Since August 5, 2020, the Veteran's asbestos related pulmonary plaque was manifested by pulmonary tests that showed DLCO of 73 percent predicted; pulmonary tests have not shown FVC of 65- to 74-percent predicted, or DLCO (SB) of 56- to 65-percent predicted. 3. The Veteran's service-connected disability has not precluded substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to August 5, 2020, the criteria for an initial compensable rating for asbestos related pulmonary plaque have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.97, Diagnostic Code (DC) 6833. 2. Since August 5, 2020, the criteria for a rating in excess of 10 percent disabling for asbestos related pulmonary plaque have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.97, DC 6833. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1955 to December 1958. The case is on appeal from a December 2015 rating decision. In December 2020, the Veteran testified at a virtual Board hearing. The claim was last before the Board in December 2020. At that time, the Board remanded the claims for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. An initial compensable rating for asbestos related pulmonary plaque from August 26, 2015; and in excess of 10 percent thereafter. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's asbestos related pulmonary plaque is currently evaluated at zero percent from August 26, 2015, and 10 percent from August 5, 2020, under DC 6833. This DC provides for a 100 percent rating for FVC less than 50-percent predicted, or; DLCO (SB) less than 40-percent predicted, maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or for pulmonale or pulmonary hypertension, or; requires outpatient oxygen therapy. A 60 percent rating is available 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 30 percent rating is available for FVC of 65- to 74-percent predicted, or DLCO (SB) of 56- to 65-percent predicted. A 10 percent rating is available for FVC of 75- to 80-percent predicted, or DLCO (SB) of 66- to 80-percent predicted. Analysis The issue on appeal is whether the Veteran's associated symptoms the level of impairment required for an initial rating in excess of zero percent disabling from August 26, 2015, and in excess of 10 percent from August 5, 2020. A December 2015 VA examination was afforded the Veteran. The examiner cited to August 2015 PFT results providing the following: pre-bronchodilator FVC 74% predicted, FEV-1 77% predicted, FEV-1/FVC 104%, DLCO 99% predicted; post-bronchodilator FVC 72%. FEV-1 80% predicted, FEV-1/FVC 110%. The DLCO was deemed as the most accurately reflecting the Veteran's level of disability. Upon remand, the Veteran was afforded a December 2020 VA examination. The examiner cited to August 2020 PFT results providing the following: FVC 70% predicted, FEV-1 78% predicted, FEV-1/FVC 111% predicted, DLCO 73% predicted. Post-bronchodilator testing was considered not indicated in the Veteran's case. The DLCO was deemed as the most accurately reflecting the Veteran's level of disability. Based on the evidence of record, the Board finds the Veteran's asbestos-related lung disease does not warrant a compensable rating prior to August 5, 2020, the earliest dated a factually ascertainable increase occurred. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Further, while an increased rating to 10 percent is effective from August 5, 2020, the Board finds further increased rating is not supported. As noted, a 30 percent rating is warranted under DC 6833 for the following PFT results: FVC of 65- to 74-percent predicted, or DLCO (SB) of 56- to 65-percent predicted. The Veteran's PFT results do not meet this criteria. While the Veteran believes his asbestos-related lung disease has worsened such that a higher disability rating should be assigned, he is not competent to provide an assessment as to the specific PFT testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In sum, the Board finds that an initial compensable rating prior to August 5, 2020 is not warranted, and that an increased rating to 30 percent or higher is not warranted for the Veteran's asbestos-related lung disease from August 5, 2020. As such, the preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A TDIU. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and 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. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). Analysis The Veteran is service connected for asbestos related pulmonary plaque from August 26, 2015 (zero percent) and from August 5, 2020 (10 percent). As such, the Veteran does not meet the schedular percentage requirement for consideration of a TDIU under 38 C.F.R. § 4.16(a) based on his service-connected disabilities. Referral to the Director of Compensation of TDIU on an extraschedular basis is still for consideration under 38 C.F.R. § 4.16(b). However, evidence of record does not demonstrate that the Veteran has been unable to secure and follow substantially gainful employment. In his VA Form 21-8940, the Veteran provided he last worked full-time on October 28, 2015, and this was the same day he became too disabled to work. Further, the highest education he received was high school. The December 2015 VA examiner provided the Veteran's respiratory condition does not impact his ability to work. The December 2020 VA examiner also provided that the Veteran's service-connected asbestos related pulmonary plaque with associated minimal interstitial fibrosis peripherally within both lower lobes would probably affect his ability to perform occupations requiring prolonged walking. However, there is no restriction from more sedentary occupational activity. Medical records include a June 2018 primary care note that provides the Veteran was currently working as a driver for Dairy Brothers. An August 2020 pulmonary consult note providing the Veteran was inactive over the winter months and that he had difficulty doing yard work in the spring. However, a psychology note from just two months before provided the Veteran reported staying busy working in the garage. Additionally, during the December 2020 hearing, the Veteran testified that the coronavirus "knocked [his] work out, which was just doing some driving basically for a dealership." He also testified that he can walk on the treadmill a bit and work his arms. "This works out good because [he's] not doing any walking or anything." He also testified that it has become harder for him to walk short distances without huffing and puffing and to enjoy regular tennis lessons. The evidence of record reflects that, although the Veteran had some limitations in terms of standing/walking for extended periods of time, his service-connected disability did not prevent him from performing sedentary work. For purposes of this decision, the Board uses the term "sedentary" to have the common meaning of a non-physical job, primarily involving sitting and usually performed in an indoor, office-type environment. See Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018). The Board is sympathetic to the Veteran's assertions regarding the impact his disability. However, those problems are compensated by the schedular ratings for such disability. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while his disability may have caused some economic impairment, his assigned disability rating contemplated his level of occupational impairment. He was also working as a driver for a company prior to the coronavirus pandemic. A TDIU claim is not purely a medical question. Here, the Board has considered both the relevant medical evidence as well as the non-medical evidence such as work history and lay statements. (Continued on the next page) Therefore, because the evidence of record shows neither a combined disability rating meeting the criteria of 38 C.F.R. § 4.16(a) nor functional impairment caused by the Veteran's service-connected disability resulting in an inability to secure and maintain a substantially gainful occupation during the appeal period, referral for extraschedular consideration is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, a TDIU is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becton, 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.