Citation Nr: 21031709 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-50 039 DATE: May 24, 2021 ORDER A disability rating in excess of 30 percent for asbestosis with calcified plaques is denied. A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's asbestosis with calcified plaques has not been productive of Forced Vital Capacity (FVC) of 50- to 64-percent predicted, or Diffusion Capacity of the Lung to Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 40- to 55-percent predicted, or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation 2. The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an award of a disability rating in excess of 30 percent for asbestosis with calcified plaques have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6833. 2. The criteria for an award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.1, 4.3, 4.7, 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 January 1951 to December 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in January 2021, when it was remanded to the agency of original jurisdiction (AOJ) for an attempt to obtain records from A.B. hospital. In January 2021 and February 2021, the AOJ requested that the Veteran complete and return proper forms in order to assist the AOJ in obtaining records from A.B. hospital. The Veteran did not respond to those requests and the AOJ was not able to obtain the records. The United States Court of Appeals for Veterans Claims has held that "[t]he duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a veteran desires help with his claim, he must cooperate with VA's efforts to assist him. While the records from A.B. hospital were not obtained, the Board finds that there has been at least substantial compliance with the January 2021 Board remand directives because the Veteran did not respond to the AOJ's requests. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). 1. A disability rating in excess of 30 percent for asbestosis with calcified plaques is denied. The Veteran asserts that he is entitled to a disability rating in excess of 30 percent for his asbestosis with calcified plaques. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's asbestosis is evaluated under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6833, which specifically contemplates asbestosis. As such, no other Diagnostic Code may be employed to rate the Veteran's disability. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). Diagnostic Code6833 provides that asbestosis is evaluated under the General Formula for Interstitial Lung Disease. 38 C.F.R. § 4.97, Diagnostic Code 6833. Under that formula, a 30 percent rating applies where there is FVC of 65- to 74-percent predicted, or DLCO (SB) of 56- to 65-percent predicted. A 60 percent rating applies where there is 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 100 percent rating applies where there is FVC less than 50-percent predicted, or DLCO (SB) less than 40-percent predicted, or maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or cor pulmonale or pulmonary hypertension, or requires outpatient oxygen therapy. 38 C.F.R. § 4.97. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are used for rating purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be performed and explains why. 38 C.F.R. § 4.96(d)(4). When evaluating a disability based upon PFT results, post-bronchodilator results are used unless they are poorer than the pre-bronchodilator results. If so, the pre-bronchodilator results are used. 38 C.F.R. § 4.96(d)(5). If the DLCO (SB) test is not of record, VA may evaluate based on alternative criteria so long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2). After a review of all the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a disability in excess of 30 percent for the Veteran's asbestosis with calcified plaques. Diagnostic Code 6833 directs that the relevant PFT criteria for a 60 percent rating are the FVC or the DLCO results. PFT performed at on January 14, 2014 revealed pre-bronchodilator FVC of 65.1 percent predicted, FEV-1 of 58.7 percent predicted, and DLCO of 64 percent predicted, and post-bronchodilator FVC of 58.3 percent predicted and FEV-1 of 57.8 percent predicted. Post-bronchodilator DLCO results were not reported. The VA clinician noted that the FEV-1 results most accurately reflected the Veteran's level of disability. The Veteran was afforded a VA examination in April 2014. The examiner noted the August 2013 PFT results pre-bronchodilator FVC of 65.1 percent predicted and FEV-1 of 58.7 percent predicted, and post-bronchodilator FVC of 58.3 percent predicted, FEV-1 of 57.8 percent predicted, and DLCO of 64.7 percent predicted. Pre-bronchodilator DLCO results were not reported. The examiner indicated that the FEV-1 results most accurately reflected the Veteran's level of disability. An August 2014 VA examiner opined that the Veteran's COPD was unrelated to his asbestos exposure and that the Veteran's FVC results were most indicative of his remote asbestos exposure. As an initial matter, the Board notes that at no time during the pendency of the appeal has the Veteran's asbestosis been productive of by cor pulmonale, pulmonary hypertension, maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption or less with cardiorespiratory limitation, or a need for outpatient oxygen therapy. The April 2014 VA examination did not indicate the presence of such evidence, nor does the medical treatment of record demonstrate such evidence. As such a disability rating of 100 percent is not supported by the record. The August 2013 and January 2014 PFTs of the record revealed that the post-bronchodilator results were worse than the pre-bronchodilator results and could support a higher rating. However post-bronchodilator results that are poorer than pre-bronchodilator results are not used for rating purposes. 38 C.F.R. § 4.96(d)(5). The August 2013 and January 2014 pre-bronchodilator FVC results of 65.1 percent are not supportive of a higher rating. Neither the pre-bronchodilator, nor post-bronchodilator DLCO results are supportive of a higher rating. The Board notes that the August 2013 and May 2014 VA examiners noted that the FEV-1 results most accurately reflects the Veteran's level of disability. FEV-1 results are considered under Diagnostic Codes 6840 through 6845. A higher rating under those Diagnostic Codes would require a FEV-1 of 40-55 percent. The Veteran's August 2013 and January 2014 FEV-1 pre-bronchodilator results were 58.7 percent of the predicted value. This would not support a higher rating under Diagnostic Codes 6840 through 6845. Further the August 2014 examiner opined that the Veteran's FVC results were most indicative of his remote asbestosis exposure, and the Veteran's asbestosis with calcified plaques is rated under Diagnostic Code 6833 which specifically considers FVC and DLCO values rather than FEV-1 values. The record does not otherwise contain other PFT results during the period on appeal. Nor does the record otherwise indicate the August 2013 and January 2014 PFT results are not probative. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 30 percent for asbestosis with calcified plaques. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The appeal of this issue is denied. 2. A TDIU is denied. The Veteran asserts that a TDIU is warranted because he is not able to work due to breathing and endurance problems associated with his asbestosis, chronic sinusitis, and esophagus problems. See, e.g., October 2014 Notice of Disagreement, September 2017 Substantive appeal. Total disability ratings for compensation may be assigned where the schedular rating is less than total, and the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to secure and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16 In evaluating a veteran's employability, consideration is to be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. The determination or finding that a veteran is unable to secure or follow a substantially gainful occupation is not medical in nature. Indeed, no specialized opinion is required, as this is a determination exclusively within the province of VA adjudicators, including the Board. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner). Basic eligibility is established where there is one disability rated at 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In the present case, the Veteran is service connected for chronic sinusitis rated as 50 percent disabling, asbestosis with calcified plaques rated as 30 percent disabling, esophageal stricture associated with Barrett's esophagus and intramucosal adenocarcinoma of the esophagus with ulcer rated as 30 percent disabling, Barrett's and intramucosal adenocarcinoma of the esophagus with ulcer rated as 10 percent disabling, and deviated septum rated as noncompensable. His combined disability rating is 70 percent from September 27, 2010, and 80 percent disabling from August 26, 2020. Having met the combined rating criteria under 38 C.F.R. § 4.16(a) to be eligible for a TDIU, the remaining question before the Board is whether the service-connected disabilities preclude the Veteran from securing (obtaining) or following (maintaining) substantially gainful employment. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. After a review of all the evidence, the Board concludes that the preponderance of the evidence is against a finding that the Veteran is unable to secure or follow substantially gainful employment due solely to his service-connected disabilities. The Veteran has a high school education, and he had education and training as an automobile mechanic. See, February 2012 Application for Increased Compensation Based on Unemployability. He has a work history as a technician for a gas company. Id. He has not worked since 1999. In November 2013, a VA examiner opined that the Veteran was not rendered unemployable due to his chronic sinus condition. It was reasoned that the Veteran reported that he quit working due to bilateral knee pain because he worked as a welder. The examiner noted that the Veteran reported that even though the sinus condition was bothering him, it was more of a side issue when it came to retaining employment. The same examiner also opined that the Veteran's sinus, nose, throat, larynx, or pharynx condition did not impact his ability to work. The examiner reiterated that the reported that had not worked for 23 years because of knee pain as he was a welder, and noted that the Veteran reported that he did not feel the sinus itself contributed significantly with work, rather it was an irritant. In December 2013, a VA examiner opined that the Veteran was not unemployable on the basis of Barrett's esophagus and carcinoma of the esophagus. The examiner reasoned that the Veteran's reflux symptoms were treated with medication and he was functional on that account. In regard to high grade dysplasia of the esophagus, the examiner noted that there was no evidence to suggest that the Veteran had any morbidity due to that process and did not have any functional impairment that would render him unemployable. See also January 2014 VA esophageal conditions examination report (noting that the Veteran's Barrett's esophagus and carcinoma of the esophagus did not impact his ability to work). In April 2014, a VA examiner opined that the Veteran's respiratory condition impacted his ability to work in that he has shortness of breath on exertional activities. In June 2016, a VA examiner opined that the Veteran's sinus, nose, throat, larynx or pharynx condition did not impact his ability to work and noted there was no significant effect of the Veteran's service connected disabilities on his ability to function in an occupational environment. In a September 2018 esophageal conditions disability benefits questionnaire, it was opined that the Veteran's esophageal conditions did not impact his ability to work because he was retired. See also June 2019 esophageal conditions disability benefits questionnaire In July 2019, a VA examiner opined that the Veteran's esophageal conditions did not impact his ability to work. See also October 2020 VA examination report. Based on the foregoing, the Board finds that the evidence weighs against a finding that the Veteran has been unable to secure or follow substantially gainful employment due to solely to his service-connected disabilities at any point during the appeal period. It is uncontroverted that during the period on appeal the Veteran was not employed. However, the focus of the current inquiry is whether the Veteran was capable of performing the physical and mental acts required by employment, not simply whether the Veteran was working or not. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The record reflects that the Veteran has reported that he retired due to non-service-connected knee pain. Moreover, multiple examiners opined that he had no functional limitations due to his esophageal or sinus disabilities. The Board acknowledges that the Veteran's service-connected disabilities undoubtedly result in additional difficulties when attempting to work, especially as a result of shortness of breath due to the respiratory disability. However, these additional impairments are contemplated by the assigned disability rating for each individual disability. 38 C.F.R. § 4.2. The fact that a particular disability makes it more difficult or challenging to work is not synonymous with a disability or disabilities completely precluding the ability to gain or maintain substantially gainful employment. Stated differently, while the Veteran's shortness of breath due to the service-connected respiratory disability causes difficulty with performing employment function, such symptom does not completely preclude him from performing his prior work as an automobile mechanic, a gas company technician, or a welder. The schedular disability rating criteria are intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. §§ 3.321(a), 3.340, 4.1 (2017); Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose, at 363. Therefore, to the extent that the service-connected disabilities caused some impairment to the Veteran's earning capacity as a result of exacerbations or illness during the period on appeal, the Veteran has already been compensated by VA for such impairment at the combined rating of 70 percent from September 27, 2010, and 80 percent disabling from August 26, 2020. As such, the Board finds that, in light of the Veteran's education, work history and training, the preponderance of the evidence is against a finding that his service-connected disabilities prevent him from gaining or maintaining substantially gainful employment. Because the preponderance of the evidence is against the claim for a TDIU, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The appeal of this issue is denied. J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.