Citation Nr: 22014185 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-49 996A DATE: March 11, 2022 ORDER Entitlement to service connection for a respiratory condition, to include pulmonary fibrosis, and excluding asbestosis with pulmonary arterial hypertension, is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The evidence of record persuasively favors finding that the Veteran has not experienced a respiratory condition, to include pulmonary fibrosis, and excluding asbestosis with pulmonary arterial hypertension, during the period on appeal that arose during or as a result of his active service, including as due to in-service asbestos exposure or as secondary to his service-connected asbestosis with pulmonary arterial hypertension. 2. From September 12, 2015, the date the Veteran's claim for service connection was received, his service-connected asbestosis with pulmonary arterial hypertension is rated as 100 percent disabling. The evidence of record persuasively favors finding that his remaining service-connected disabilities do not prevent the Veteran from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory condition, to include pulmonary fibrosis, and excluding asbestosis with pulmonary arterial hypertension, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1994 to January 1999. These claims were most recently remanded by the Board of Veterans' Appeals (Board) in September 2021. The Regional Office (RO) substantially complied with its remand directives, and the Board may proceed with adjudication. In a January 2022 rating decision, the RO granted service connection for asbestosis with pulmonary arterial hypertension. Claims for connection for these issues had previously been remanded by the Board in September 2021. The Veteran has not indicated disagreement with the rating or effective date assigned by the RO, and as the grant of service connection constitutes a complete grant of the benefits sought on appeal, the Board will not consider these issues further in this decision. Finally, the Veteran has filed a claim for service connection for pulmonary fibrosis; however, there is evidence of record indicating that other respiratory conditions may be relevant to his claim. See, e.g., January 2022 VA medical opinion. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the Veteran's claims to include any respiratory disorder. As emphasized in Clemons, though a Veteran may only seek service connection for one condition, the Veteran's claim cannot be limited only to that diagnosis but must rather be considered a claim for any relevant disability that may be reasonably encompassed. As he has already been granted service connection for asbestosis with pulmonary arterial hypertension, those conditions have been excluded from the Board's analysis. 1. Service connection for a respiratory condition The Veteran asserts that he experienced a respiratory condition, to include pulmonary fibrosis, that arose during or as a result of his active service, to include as due to in-service asbestos exposure. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). To establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition to the above regulations, service connection may be granted for a condition diagnosed after service discharge, provided that evidence establishes that the condition was caused by service. Service connection may be granted on this basis for a disability related to asbestos exposure during service if evidence demonstrates that the veteran was actually exposed in service and that a disease usually associated with such exposure resulted. In this case, the Veteran's in-service exposure to asbestos is conceded. The Veteran's service treatment records (STRs) are negative for complaints, treatment, or diagnosis of respiratory or lung-related conditions. March 2015 private treatment records reflect the Veteran being diagnosed with significant industrial pulmonary fibrosis, along with chronic obstructive pulmonary disorder (COPD) with asthma. The Veteran was also noted to be positive for asbestosis. He had a history of smoking a pack of tobacco cigarettes per day for approximately ten years, but he had quit in 2013. In an August 2015 Notice of Disagreement (NOD) statement, the Veteran asserted that his conditions were caused by his in-service asbestos exposure. March 2016 treatment records reflect a preoperative diagnosis for pulmonary fibrosis. During the Veteran's October 2016 Disability Benefits Questionnaire (DBQ) for respiratory conditions, a private physician diagnosed him with asthma, COPD, asbestosis, and pulmonary vascular disease. Lab test results were submitted along with the DBQ. In an October 2016 Form 9 statement, the Veteran asserted that his pulmonary fibrosis was secondary to his asbestosis. March 2017 VA treatment records reflect diagnoses for asthma, COPD, and pulmonary hypertension. During his March 2020 Board hearing, the Veteran asserted that his conditions may be secondary to his asbestosis, which has since been granted service connection. May 2020 private treatment records reflect diagnoses for asbestosis and pulmonary fibrosis. An August 2020 VA treatment record lists pulmonary fibrosis and COPD as current pulmonary conditions. During the Veteran's December 2020 VA examination for respiratory conditions, the VA examiner found no evidence of any respiratory condition, including pulmonary fibrosis and asbestosis. As the Veteran has since been granted service-connection for asbestosis, the Board lends the December 2020 VA examination only limited probative weight. In a March 2021 addendum VA medical opinion, the VA examiner noted that the December 2020 CT scan taken showed no evidence of asbestosis or asbestos-related disease. They found insufficient evidence of any pulmonary condition, including pulmonary fibrosis. In an additional May 2021 addendum VA medical opinion, the VA examiner reiterated that, in their opinion, the Veteran did not meet the criteria to be diagnosed with any respiratory condition. The examiner considered the March 2015 and October 2016 medical opinions diagnosing the Veteran with multiple respiratory conditions, but they found that the evidence of record did not support such opinions. During the Veteran's October 2021 VA examination for respiratory conditions, the VA examiner noted diagnoses for asbestosis and pulmonary hypertension. The examiner provided positive etiology opinions for these conditions; however, they found insufficient evidence that the Veteran was positive for pulmonary fibrosis. The examiner stated that although the Veteran's medical records were suggestive of previous diagnoses for COPD, asthma, and pulmonary fibrosis, these conditions were less likely than not due to service. Regarding pulmonary fibrosis, although there was a previous diagnosis and possible evidence of mild interstitial prominence and thickening upon x-rays, this was not evident upon subsequent CTs. The examiner stated that a CT was a better indicator of the condition than an x-ray. Based on those facts, there was no diagnostic evidence of a current or past diagnosis in relation to pulmonary fibrosis. His records, history, and lay reports were reviewed, and the evidence did not support the previous diagnoses of either COPD or asthma based on past and current spirometry results. Additionally, during the present examination, there was no evidence of these conditions. The Board notes that the Veteran has consistently asserted that he is positive for respiratory conditions other than asbestosis and pulmonary arterial hypertension, including pulmonary fibrosis. In considering the Veteran's contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the October 2021 VA examination opinion and medical evidence of record. The Board finds that the evidence of record persuasively favors finding that the Veteran does not meet the criteria for a diagnosis for any respiratory condition, other than asbestosis and pulmonary arterial hypertension, during the period on appeal. Therefore, it is less likely than not that any condition arose during or as a result of his active service, or as secondary to a service-connected disability. The Board does acknowledge the Veteran's diagnoses for pulmonary fibrosis, COPD, and asthma during the period on appeal. However, the various VA examinations and medical opinions in the record all reflect findings that the Veteran has not met the criteria for such diagnoses. The examiners, especially the October 2021 examiner, note that the evidence for the previous diagnoses is unknown, and the current evidence did not support such findings. Additionally, while earlier medical evidence, such as x-ray reports, indicated the possibility of pulmonary fibrosis, subsequent evidence, such as CT scans, provided better evidence that did not reflect the presence of such conditions. As the October 2021 VA examiner was a qualified medical physician who reviewed the Veteran's entire medical history before offering their diagnoses and opinions, the Board finds this VA examination report to be the most probative evidence of record. Based on these facts, the Board finds that the evidence of record does not support the Veteran's claim and persuasively favors finding that he has not been positive for pulmonary fibrosis, COPD, asthma, or any other non-service-connected respiratory condition during the period on appeal. Accordingly, the Veteran's claim for service connection for a respiratory condition, to include pulmonary fibrosis, and excluding asbestosis with pulmonary arterial hypertension, is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is persuasively against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). 2. TDIU The Veteran asserts that his service-connected disabilities prevent him from securing or following a substantially gainful occupation. TDIU is assigned when a service-connected disability results in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). From September 12, 2015 onward, the duration of the period on appeal, the Veteran's asbestosis disability is rated as 100 percent disabling. See January 2022 codesheet. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities, as assigned in this case, means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate the Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether a Veteran's disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. Here, the other service-connected disabilities are gastroesophageal reflux disease (GERD), rated as 10 percent disabling, degenerative joint disease of the lumbar spine, rated as 10 percent disabling, and right and left lower extremity radiculopathy of the sciatic nerves, each rated as 10 percent disabling. See January 2022 codesheet. The Board also notes that the Veteran has been granted disability by the Social Security Administration (SSA). However, this determination included service-connected and non-service-connected disabilities. See June 2012 SSA Decision. During his March 2020 Board hearing, the Veteran asserted that the primary reason he could not hold a steady job was his inability to pass a company's pulmonary fitness test (PFT). He did not indicate that his other disabilities prevented him securing or following a substantially gainful occupation. The Board finds that neither the evidence of record nor the Veteran have suggested that his service-connected disabilities other than his asbestosis with pulmonary arterial hypertension have prevented him from securing or following a substantially gainful occupation. Additionally, the Board acknowledges that these disabilities do cause occupational and social impairment, but it finds that this impairment is not so severe that the disabilities, by themselves, would prevent him engaging in a substantially gainful occupation. The evaluations assigned to the respective disabilities adequately contemplate the impairment covered by those conditions. The claim is accordingly denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.