Citation Nr: 21040954 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-47 018 DATE: July 7, 2021 ORDER Entitlement to a rating in excess of 30 percent prior to December 10, 2019 and a rating in excess of 60 percent thereafter for asbestosis is denied. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU), to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. Prior to December 10, 2019, the Veteran's asbestosis was manifested by FVC of 65 percent predicted and DLCO (SB) of 90.65 percent predicted. The Veteran did not have a maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. 2. From December 10, 2019, the Veteran's asbestosis was manifested by FVC results of 60% predicted and DLCO (SB) of 66 percent predicted. The Veteran did not have a maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, cor pulmonale or pulmonary hypertension, and did not require outpatient oxygen therapy. 3. The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent prior to December 10, 2019 and a rating in excess of 60 percent thereafter for asbestosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.97, Code 6833. 2. The criteria for establishing entitlement to a TDIU, including on an extraschedular basis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1969 to December 1972. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issue of entitlement to a rating in excess of 30 percent for asbestosis in April 2019 to obtain updated VA and private treatment records and associate them with the claims file; additionally, the Board instructed that the Veteran should be afforded a new VA examination to determine the current severity of his service-connected asbestosis. Further, the Board referred the issue of Clear and Unmistakable Error (CUE) in the December 10, 2003 rating decision to the extent that it assigned a noncompensable evaluation for the period prior to May 9, 2012 to the RO. The Veteran was afforded the requested VA examination in December 2019 and additional VA treatment records and identified private treatment records were associated with the claims file. The RO subsequently issued a supplemental statement of the case (SSOC) in August 2020. Additionally, in an August 2020 correspondence, the RO notified the Veteran that a claim for CUE on an earlier effective date needed to be submitted on a standardized form, providing instructions for filing the claim; however, the Veteran did not file a formal claim for CUE. The Board finds that there has been substantial compliance with the March 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Subsequently, in an August 2020 rating decision, the RO granted a 60 percent disability rating for asbestosis effective December 10, 2019. As higher ratings are available for the Veteran's service-connected asbestosis, this issue remains in appellate status. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has another legacy appeal stream, which includes a claim for service connection for diabetes mellitus, type II. That separate appeal stream has been certified to the Board but is currently awaiting the requested Board hearing, and as such, it will not be addressed here. Finally, the Board notes that the Veteran's representative, in May 2021, indicated that the Veteran has been unable to work for years due to, in part, his asbestosis. Thus, the Board finds that the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 30 percent prior to December 10, 2019 and a rating in excess of 60 percent thereafter for asbestosis is denied. The Veteran's service-connected asbestosis has been rated as 30 percent disabling prior to December 10, 2019 and 60 percent disabling thereafter under Diagnostic Code 6833. 38 C.F.R. § 4.97. The Veteran contends that the current severity of his service-connected asbestosis warrants a higher evaluation. Under Diagnostic Code 6833, asbestosis is to be rated under the General Rating Formula for Interstitial Lung Disease (General Rating Formula). Id. The General Rating Formula provides as follows: A 100 percent evaluation is assigned for FVC less than 50 percent of predicted value, 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 (right heart failure) or pulmonary hypertension, or; requires outpatient oxygen therapy. A 60 percent evaluation is assigned 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 evaluation is assigned for FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65- percent predicted. A 10 percent evaluation is assigned for FVC of 75- to 80-percent predicted value, or; DLCO (SB) of 66- to 80-percent predicted. 38 C.F.R. § 4.97. A May 2012 private treatment record reflects that the Veteran had a computed tomography (CT) for possible asbestos related pleuro pulmonary disease. The results note very limited bilateral basilar pulmonary fibrosis was suggested. The Veteran was afforded a VA respiratory examination in September 2012. The examination notes that the Veteran was service connected for asbestos exposure, and the Veteran reported using albuterol as needed for symptomatic wheezing with exposure to strong odors. The examination notes that the Veteran required the intermittent use of inhaled medication, specifically inhalation bronchodilator therapy; however, he did not require the use of any other treatment. He did not have any other pulmonary condition. A March 2012 CT revealed results consistent with fibrosis. Pulmonary function testing was performed revealing Pre-Bronchodilator FVC was 65% predicted, FEV-1 was 76% predicted, FEV-1/FVC was 87%, and DLCO was 90.65% predicted; Post-Bronchodilator FVC was 58% predicted, FEV-1 was 68% predicted, FEV-1/FVC was 88%, and DLCO was 90.65% predicted. The examiner indicated that FEV-1/FVC test results most accurately reflected his level of disability. Exercise capacity testing was not conducted, and the examiner indicated the Veteran did not require outpatient oxygen treatment for his respiratory condition. The examiner indicated that the Veteran's respiratory disability did not impact his ability to work. A September 2012 VA treatment record, following his pulmonary function test (PFT) notes that the Veteran tolerated the PFT and albuterol treatment well; he appeared to get very short of breath with the test. The Veteran reported that he had problems breathing and occasionally stopped breathing when exposed to flowery scents, automobile exhaust, and cigar and cigarette smoke. An October 2012 high resolution CT of the thorax notes that there was no evidence of a mediastinal or pulmonary mass, pleural or pericardial effusion, or cardiomegaly. Coronary arterial calcifications and stents were noted. Very limited bilateral posterior basilar subpleural fibrosis was present, greater on the right; there were no pleural plaques or calcifications. A very small esophageal hernia was noted. The impression notes limited bilateral basilar pulmonary fibrosis, without evidence of mediastinal or pulmonary mass. A September 2014 statement from the Veteran's private provider notes that the Veteran's breathing was under "very reasonable control." An October 2014 CT of the thorax revealed slight interval progression of mild pulmonary fibrosis in the lung bases, more on the right side; old granulomatous disease; and stable prominent mediastinal calcified and non-calcified lymph nodes. An October 2015 VA ambulatory care outpatient progress record noted that the Veteran has been treated for asbestosis by his private primary care provider and pulmonologist. Prescribed treatment includes Albuterol. On physical examination, no complaints of chest pain or shortness of breath were reported. A July 2016 private PFT reflects FVC was 57% predicted, FEV-1 was 68% predicted, FEV-1/FVC was 120%. A September 2016 high-resolution imaging study revealed hyperinflation of the lungs with some bronchial wall thickening and heterogenous ventilation with bibasilar interlobular septal thickening which is mild. The record notes that this was a slight worsening compared to the prior study. The impression notes a continued slight interval progression of the mild pulmonary fibrosis in the lung bases right greater than the left; old granulomatous disease; no developing noncalcified or calcified pleural plaques. A March 2017 private medical emergency department record notes complaints of chest pain. The Veteran reported it began the day before when carrying bricks. Chest x-ray showed no evidence of acute cardiopulmonary disease. The records reflect airway patent and his breathing was unlabored, although his lungs had decreased breath sounds. A September 2018 private medical record notes that the Veteran was evaluated for a pulmonary embolism after having tachycardia. The Veteran denied any chest pain or difficulty breathing at the time. His breath sounds were clear and equal bilaterally; no restrictions, rales, rhonchi, or wheezes were noted. The assessment notes sinus tachycardia resolved. A November 2018 private PFT reflects FVC was 57% predicted, FEV-1 was 67% predicted, FEV-1/FVC was 117%; however, DLCO was not provided. A June 2019 CT of the thorax revealed early fibrotic changes an heterogenous ventilation likely secondary to the same. An October 2019 private treatment record notes that the Veteran reported a cough, chest pain, difficulty breathing/shortness of breath, and chronic hemoptysis for two months. He had a history of asbestos exposure. He denied any home use of oxygen or inhalers. The record notes that he was recently diagnosed with chronic obstructive pulmonary disease by his occupational pulmonologist; however, he was not in acute exacerbation. His lungs were free of localized infiltration or consolidation, and there was no evidence of pleural effusion or pneumothorax; pulmonary vascularity was noted as normal. A chest x-ray revealed poor inspiratory volume with left lung base subsegmental atelectasis. A December 2019 private medical record notes complaints of shortness of breath. A CT revealed that the Veteran's lungs were clear of infiltrates and effusions. Mild bronchiectasis was noted. A private PFT dated in December 10, 2019 notes Pre-Bronchodilator FVC was 60% predicted, FEV-1 was 69% predicted, FEV-1/FVC was 114%, and DLCO was 66% predicted; no Post-Bronchodilator results were provided. The record reflects that the Veteran put forth good effort upon evaluation, and the tests were accurate and reproducible. Although the FEV1 and FVC were reduced, the FEV1/FVC ratio was increased. The airway resistance was normal. Lung volume was reduced. The reduced diffusing capacity indicates a mild loss of functional alveolar capillary surface. The Veteran was afforded a VA respiratory examination in January 2020. The examination notes a diagnosis of interstitial lung diseases, asbestosis. The Veteran reported that he currently had a chronic dry cough, coughing up streaks of blood; plural thickening left fissure, plural plaque, bilateral atelectasis; he indicated that he was always short of breath, with chronic angina. The Veteran indicated that he had not worked since September 28, 1990. The examination notes that the Veteran required the daily use of inhaled medication, specifically inhalation bronchodilator therapy; however, he did not require the use of any other treatment, including oxygen therapy. The examination notes that the Veteran appeared to be in acute distress; he had short labored breathing and was not able to converse without taking breath. His lungs were clear bilaterally, and chest expansion was 4 cm with full breath. PULSE OX was 99 to 98% RR 19. There was no cyanosis. He had large morbid abdomen. The examiner also noted that the Veteran had a scar that was not painful, unstable, a total area equal or greater than 39 square centimeters, or located on the head, face, or neck. The scar was located on the mid-sternum from Coronary Artery Bypass Graft (CABG) and measured 29 centimeters by 1.5 centimeters. A December 2019 chest x-ray was negative. The December 2019 private PFT results were documented within the examination. The examiner indicated that these FVC test results most accurately reflected his level of disability. Exercise capacity testing was not conducted, and post-bronchodilator testing was not completed because the test was conducted by an outside provider. The examiner indicated that the Veteran's respiratory disability impacted his ability to work by impacting his breathing. The Veteran had a bronchoscopy in February 2020 which revealed hemoptysis with abnormal CXR; the airway examination was normal. A July 2020 private treatment record notes that the Veteran had been coughing up blood; he was still having chest pain and had low oxygen levels while sitting. The record notes that the Veteran had a history of asbestos exposure, but there was no evidence of pulmonary fibrosis or pleural plaques. His hemoptysis had largely resolved, reporting only one episode of blood streaked sputum since his bronchoscopy. In a September 2020 addendum, the same VA examiner explained that, during the January 2020 examination, the Veteran was in acute distress with labored breathing; he was not able to converse without taking a breath. He could not tolerate PFT during the examination. He did have a PFT demonstrating FVC 60%, FEV-1 69%, FEV-1/FVC 114% and DLCO 66%. Use of the private PFT, which was already completed, was used since the evaluation was within 60 days of the VA examination. The examiner indicated that it was unknown why post-bronchodilator testing was not done during his private PFT except to assume that, due his cardiac condition, prior CABG, and intermittent Sinus Tachycardiac rhythm, the Albuterol for the post-PFT testing would be contraindicated. In addition, the PFT pre-testing indicates a restrictive pattern, noting that bronchodilator tests are normally performed on obstructive or mixed pattern (obstructive/restrictive). According to the step-wise PFT interpretation, if the patient's initial PFT results indicate a restrictive pattern or a mixed pattern that is not corrected with bronchodilators, the patient should be referred for full PFT's with DLCO testing, which include Total Lung Capacity (TLC); full PFT's provide the total lung capacity. The restrictive pattern is confirmed as a true restrictive defect if the total lung capacity is less than 80% of predicted in patients five to 18 years of age, or less than the LLN in adults. In this case, the Veteran did undergo a full PFT with TLC 65%, which is a true restrictive pattern. At the outset, the Board acknowledges that it is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In this regard, the Board notes that, in addition to his service-connected asbestosis, there are other pulmonary diagnoses of record during the appeal period, including COPD, asthma, and bronchiectasis. However, absent any delineating evidence to distinguish the symptoms attributable to each diagnosis, the Board will not attempt to differentiate between symptoms attributable to his service-connected asbestosis or another nonservice-connected respiratory disorder. Id. After a review of the evidence, the Board finds that a rating in excess of 30 percent prior to December 10, 2019 and a rating in excess of 60 percent thereafter for asbestosis is not warranted. Initially, regarding the pulmonary function test (PFT) results, VA regulations provide that if a Veteran's DLCO (SB) test is not of record, the Veteran's disability should be rated on alternative criteria as long as the VA examiner states in his/her report why the DLCO (SB) test would not be useful or valid in the Veteran's particular case. See 38 C.F.R. § 4.96(d)(2). When the PFT's are not consistent with clinical findings, evaluate based on the PFT's unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. See 38 C.F.R. § 4.96 (d)(3). Post-bronchodilator studies are required when PFT's are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. See 38 C.F.R. § 4.96(d)(4). Post-bronchodilator PFT results are to be used when applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, the pre-bronchodilator values are to be used for rating purposes. 38 C.F.R. § 4.96(d)(5). Where there is a disparity between the results of different PFT's, such that the level of evaluation would differ depending on which test result is used, the regulations instruct use of the test result that the examiner states most accurately reflects the level of disability. See 38 C.F.R. § 4.96(d)(6). Based on the foregoing, for the period prior to December 10, 2019, the Board finds that the September 2012 VA examination is the most probative evidence of record regarding the Veteran's PFT results. Although the Board acknowledges the private PFT results of record, dated in July 2016 and November 2018, neither provided pre-bronchodilator and post-bronchodilator results for the DLCO (SB) pulmonary test or explained why the test would not be useful or valid in the Veteran's case. See 38 C.F.R. § 4.96 (d)(2). Additionally, the Board notes that neither of these PFT's indicate whether the results were pre- or post-bronchodilator. See 38 C.F.R. § 4.96 (d)(4). As such, the Board finds that the PFT results in the July 2016 and November 2018 are inadequate for purposes of rating the Veteran's service-connected asbestosis. Therefore, in considering the PFT results from the September 2012 VA examination, and in light of the inadequacy of the July 2016 and November 2018 private PFT's, the Board finds that the Veteran's service-connected asbestosis warrants the currently assigned 30 percent disability rating throughout the period prior to December 10, 2019. In this regard, as the post-bronchodilator results for FVC and FEV-1 were poorer than the pre-bronchodilator results, the appropriate PFT results to consider are: FVC at 65% predicted, FEV-1 at 76% predicted, FEV-1/FVC at 88% predicted, and DLCO at 90.65% predicted. 38 C.F.R. § 4.96(d)(5). Here, FVC of 65% predicted warrants a 30 percent evaluation, and a DLCO of 90.65% predicted warrants a noncompensable evaluation; thus, as the Veteran does not have a FVC of 50- to 64-percent predicted or less, or; DLCO (SB) of 40- to 55-percent predicted or less, or; maximum oxygen consumption of 15 to 20 ml/kg/min or less, nor does the evidence reflect that the Veteran has suffered from cor pulmonale or pulmonary hypertension, or required outpatient oxygen therapy as a result of his asbestosis during the period on appeal, the Board finds that there is no basis to award a rating in excess of 30 percent prior to December 10, 2019. 38 C.F.R. § 4.97, DC 6833. The Board has considered whether any additional Diagnostic Codes may be applicable in this case and finds that DC 6833 is the most appropriate rating code because it pertains specifically to the service-connected disability in the Veteran's case: asbestosis (or interstitial lung disease). The Veteran's asbestosis is not shown to involve any other factor that would warrant evaluation of the disability under any other provisions of the rating schedule. Nevertheless, the Board acknowledges that the September 2012 VA examiner stated that the FEV-1/FVC test results were the most accurate in depicting the Veteran's current pulmonary status and has considered whether a higher rating is warranted pursuant to any other diagnostic code based on the FEV-1/FVC test results during this period. In this regard, the Diagnostic Codes pertaining to the respiratory system, including restrictive lung disease, COPD, and asthma, provide that a 60 percent rating is warranted for a FEV-1/FVC of 40 to 55 percent. 38 C.F.R. § 4.97, DCs 6602, 6604, 6840-6845. Consequently, even applying the Veteran's September 2012 FEV-1/FVC test results to the rating criteria would not result in a higher evaluation pursuant to one of these Diagnostic Codes, and there is no indication that the Veteran had cor pulmonale, or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization) related to his asbestosis at any time during the period on appeal. Therefore, these Diagnostic Codes pertaining to the respiratory system would not provide a higher rating at any time during the period on appeal. Accordingly, the Board concludes that the Veteran is appropriately rated under DC 6833. For the period from December 10, 2019, the Board finds that the January 2020 VA examination, together with the December 2019 private PFT report and September 2020 addendum, is adequate for purposes of deciding the Veteran's claim and the most probative evidence of record regarding the current level of severity of the Veteran's asbestosis. In this regard, the Board notes that December 2019 PFT includes a DLCO test, and the September 2020 addendum explains that the Veteran was unable to tolerate PFT during the examination. The examiner further indicated that, in considering the recently conducted December 2019 PFT, the PFT likely contained only pre-bronchodilator results because post-PFT testing would be contraindicated due to the albuterol for his cardiac condition, prior CABG, and intermittent Sinus Tachycardiac rhythm. See 38 C.F.R. § 4.96(d)(2), (4). Further, there is no indication that the PFT results are not a valid indication of respiratory functional impairment; indeed, the December 2019 PFT report indicates that the Veteran put forth good effort upon evaluation, and the tests were accurate and reproducible. Additionally, the VA examiner considered the Veteran's symptoms and treatment, and, based on this information and the recent December 2019 PFT results and report, the examiner indicated that the FVC test results were the most accurate in depicting the Veteran's current pulmonary status. See 38 C.F.R. §§ 4.96(d), 4.97. Thus, the Board finds that the examination is adequate and contains sufficient information to rate the Veteran's asbestosis. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)). Based on a review of the evidence, the Board finds that a rating in excess of 60 percent is not warranted for the period from December 10, 2019. In this regard, the evidence reflects that the Veteran's asbestosis was manifested by FVC at 60% predicted, FEV-1 at 69% predicted, FEV-1/FVC at 114% predicted, and DLCO at 66% predicted. 38 C.F.R. § 4.96(d)(5). Given the disparity between the results of these PFT's, the examiner stated that the FVC test results were the most accurate in depicting the Veteran's current pulmonary status. See 38 C.F.R. § 4.96(d)(6). The Board finds that the Veteran's FVC of 60% predicted is consistent with his currently assigned 60 percent disability rating for this period. 38 C.F.R. § 4.97, DC 6833. A higher rating is not warranted from December 10, 2019 because there is no evidence of record indicating that the Veteran's FVC was less than 50-percent predicted, or that he had a maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, cor pulmonale, pulmonary hypertension, or required outpatient oxygen therapy as a result of his asbestosis. Id. The Board acknowledges that the Veteran's representative raised an argument with regard to extraschedular consideration. In this regard, the Board notes, however, that neither the Veteran nor his representative has raised any specific symptoms for which he is not currently compensated under his current schedular ratings. However, the Board notes that the evidence throughout the period on appeal consistently reflects that the Veteran experienced symptoms of shortness of breath due to his asbestosis; additionally, the records reflect other symptoms of coughing, wheezing, and chest pain at various times during the period on appeal. The Board finds that, to the extent that these symptoms are in fact related to his service-connected asbestosis, these signs and symptoms, and their resulting impairment, are contemplated by the rating schedule, which is based primarily on FVC results from PFT's and inherently contemplates decreased lung function. Moreover, the rating criteria provide for higher ratings for more severe symptoms. Although the Board acknowledges that the record also reflects that the Veteran experienced hemoptysis for a period of time during the appeal period, the Board notes that there is no indication that this was related to his service-connected asbestosis. Indeed, these reports appear to be noted in the context of his treatment for his nonservice-connected bronchiectasis. Nevertheless, to the extent that it was related to his asbestosis, the Board finds that his hemoptysis, which was first reported in October 2019 and was largely resolved by July 2020, is not reflective of his asbestosis disability picture as a whole. Assigning an increased rating for a limited period such as this would violate the rule regarding stabilization of ratings. See 38 C.F.R. § 3.344. Accordingly, the Board finds that the Veteran's disability pictures are contemplated by the Rating Schedule and adequately reflected in his currently assigned ratings. Thus, the assigned schedular ratings are, therefore, adequate and referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Finally, the Board has considered whether a separate rating would be warranted for the Veteran's mid-sternum scar. However, the VA examiner indicated that this scar was due to a CABG, which is associated with his nonservice connected coronary artery disease; nevertheless, there is no indication that it was painful, unstable, equal to or greater than 39 square centimeters, located on the head, face, or neck, or resulted in any functional impairment. Thus, there is no basis to assign a separate compensable evaluation for the mid-sternum scar noted on his January 2020 VA asbestosis examination. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. To the extent that the Veteran believes that he is entitled to a higher disability rating for his service connected asbestosis at any time during the period on appeal, the Board notes that although the Veteran is competent to report his symptoms, such as shortness of breath, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Board finds that the Veteran's statements in this regard are outweighed by the medial evidence of record. In summary, the Board finds that a rating in excess of 30 percent prior to December 10, 2019 and a rating in excess of 60 percent thereafter is not warranted for the Veteran's service-connected asbestosis pursuant to DC 6833. 38 C.F.R. § 4.97. 2. Entitlement to a TDIU, to include on an extraschedular basis, is denied. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where the schedular criteria set forth above are not met, but a veteran is nonetheless found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). For a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability. See Van Hoose, 4 Vet. App. at 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. For the period on appeal, the Veteran has been in receipt of the following disability ratings: a 30 percent disability rating prior to December 10, 2019, and a 60 percent disability rating thereafter for his asbestosis; a 10 percent disability rating for tinnitus; and noncompensable evaluations for status post tonsillectomy and adenoidectomy and left ear hearing loss. His total combined disability rating is 40 percent prior to December 10, 2019 and 60 percent thereafter. Thus, for the period prior to December 10, 2019, the Veteran did not meet the minimal schedular criteria for a TDIU, and he does not contend otherwise. As such, entitlement to TDIU is denied, for this period, as the Veteran does not meet the threshold requirements. However, the Veteran's representative contends that the Veteran does in fact meet the schedular criteria due to is service-connected asbestosis from December 10, 2019. Indeed, although he does not meet the schedular criteria for a TDIU when considering all of his service connected disabilities together for this period, when considering solely the service-connected asbestosis rated at 60 percent disabling from December 10, 2019, the Veteran meets the schedular criteria based on a single disability. See 38 C.F.R. § 4.16(a). However, notably, the Veteran does not contend that he is unemployable due solely to his service-connected asbestosis. Rather, the Veteran contends that his service-connected asbestosis, together with his coronary artery disease and diabetes mellitus, render him unable to work. As support for this assertion, the Veteran's representative, in a May 2021 brief, indicated that the Veteran has been unable to work for several years and was found disabled by the Social Security Administration (SSA) due to coronary artery disease and a respiratory disorder. A review of the medical evidence throughout the period on appeal is silent for any indication that the Veteran's service-connected tinnitus, status post tonsillectomy and adenoidectomy, and left ear hearing loss impact his ability to work, and the Veteran does not claim otherwise. At his January 2020 VA examination, the Veteran reported that he had not worked since September 28, 1990, and the examiner indicated that the Veteran's asbestosis impacted his ability to work by affecting his breathing. A review of the SSA records reveals that the Veteran was found to be disabled since June 1992 due to coronary artery disease and asthma. Upon review of all of the evidence of record, both lay and medical, the Board finds that entitlement to a TDIU is not warranted on a schedular basis nor is referral of the matter to the Director of Compensation Service for consideration of TDIU under 38 C.F.R. § 4.16(b) warranted. Although the Veteran has been unemployed throughout the period on appeal, the Veteran is not service connected for coronary artery disease or diabetes mellitus, and nonservice-connected disabilities may not be considered in the determination of whether a Veteran is entitled to a TDIU; neither the Veteran nor his representative has cited to any evidence of record demonstrating that the Veteran lacks the residual functional capacity to perform occupational tasks based solely on limitations caused by his service-connected disabilities. Although the Board recognizes that the medical evidence consistently notes the Veteran's reports of difficulty breathing related to his service-connected asbestosis, and the January 2020 VA examiner indicated that his asbestosis impacted his ability to work, there is no indication in any of the records throughout the period on appeal that the Veteran was unable to work due solely to his service connected disabilities. While the Board does not doubt that the Veteran's service-connected disabilities have some impact on his employability, the weight of the evidence does not support that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. Indeed, to the extent that the medical evidence of record, including the VA examinations, address functional impairment, the Board notes that there is no probative medical opinion of record indicating that the Veteran was unable to work due to solely his service-connected disabilities, including asbestosis, and the Board does not find that these limitations would prevent all forms of employment. The Board recognizes the limitations that the Veteran faces due to his service-connected disabilities; however, these limitations were considered in the disability ratings he is currently receiving. The assignment of the schedular ratings is recognition of the functional limitations caused by his disabilities, and those ratings contemplate the severity and overall impact the symptoms have on his life. (Continued on the next page) Thus, in light of the Veteran's occupational background and the functional limitations described, the Board finds that the Veteran is not unable to obtain and maintain substantially gainful employment in accordance with his background and education level due solely to his service-connected disabilities. Rather, the Board finds that the Veteran was capable of performing the physical and mental acts required for employment. Thus, there is no indication in the record that the Veteran was unemployable due to his service-connected disabilities, and referral of the matter to the Director of Compensation Service for consideration of TDIU under 38 C.F.R. § 4.16(b) is not warranted, nor is TDIU warranted on a schedular basis. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.