Citation Nr: 22017901 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 12-04 949A DATE: March 26, 2022 ORDER Entitlement to service connection for a respiratory disorder other than asbestosis, to include COPD and bronchiectasis, is denied. Entitlement to an initial 100 percent disability rating for asbestosis is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's respiratory disorders other than asbestosis, to include COPD and bronchiectasis, are not etiologically related to service, to include as from exposure to asbestos. 2. Affording the Veteran reasonable doubt, his pulmonary symptoms may not be distinguished between his service-connected asbestosis and his non-service-connected lung disabilities; the Veteran's asbestosis requires constant outpatient oxygen therapy. 3. Because the Veteran is in receipt of a 100 percent disability rating for his asbestosis, as granted herein, and which is his only service-connected disability, the question of entitlement to TDIU is moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory disorder other than asbestosis, to include COPD and bronchiectasis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for a 100 percent rating for asbestosis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.96, 4.97 Diagnostic Code (DC) 6833. 3. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1955 to May 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, this appeal previously came before the Board in July 2014, March 2016, October 2018, and April 2020, with all issues being remanded on all occasions. The issues are now returned to the Board for further appellate review. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.310. Generally, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). 1. Entitlement to service connection for a respiratory disorder other than asbestosis, to include COPD and bronchiectasis. The Veteran contends that his various respiratory disorders, other than asbestosis, are attributable to active service. Specifically, he argues that asbestos exposure weakened his lungs, causing COPD. After a review of the evidence, the Board finds that service connection is not warranted. A review of the Veteran's service treatment records (STRs) show treatment for a common cold with a productive cough in September 1957. No other treatment for respiratory illness is noted. The Veteran was diagnosed with emphysema ia 2005, bronchiectasis in February 2012, and treatment for COPD is found as early as November 2009. The Veteran's private physician reported that he has treated the Veteran for respiratory conditions since 2000. Post-service medical records do not show treatment for any respiratory conditions until around 2000, 40 years after separation from active service. The Veteran claimed that he suffered from pneumonia and bronchitis during and after service. However, no treatment for pneumonia or bronchitis is found in his STRs that would corroborate such a claim. The Board recognizes that the Veteran is competent to describe observable symptoms, such as difficulty breathing, and his statements are credible in this regard. See Layno v. Brown, 6 Vet. App. 465 (1994). However, while he is competent to provide testimony regarding observable symptomatology, he is not competent to attribute such symptoms to a particular disorder. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding continuity of symptoms after service are found to lack competency. In a December 2015 private medical opinion, Dr. Gilliard, M.D., opined that symptoms reported during sick calls while in service, in combination with the Veteran's self-reported pneumonia, corroborate bouts of bronchitis. However, as mentioned, no evidence of pneumonia or bronchitis is found in the Veteran's STRs. To be sure, the Board is not making a medical determination in this instance. The Veteran's STR's clearly show that he was treated for a sore throat with coughing and harsh breathing sounds on a single occasion. A common cold was diagnosed and no other complaints of respiratory problems are found in the STR's. Based on the foregoing, the Board finds that a continuity of symptoms since service has not been established. As to nexus, the Veteran submitted three private medical opinions in support of his claim. The first, from January 2012, is from Dr. D., the Veteran's pulmonologist. Dr. D. begins by rendering a diagnosis of obstructive lung disease based on the notion that during service the Veteran was exposed to "significant amounts of asbestos" and suffered from pneumonia. Unfortunately, the record does not show any in-service treatment for pneumonia. There is no indication that Dr. D. reviewed the Veteran's claims file or performed any diagnostic testing. Hence, the diagnosis was based primarily on the Veteran's own self-assertions. As the opinion is based on the Veteran's own assertions rather than the evidence of record, it lacks significant probative value in assessing this claim. See Reonal v. Brown, 5 Vet. App. 458, 46 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In any event, Dr, D. merely states that the Veteran has "COPD, emphysema and chronic bronchitis which was caused by cigarette smoking and possibly by asbestos exposure." The term 'possibly' does not imply that the condition is more likely than not related to asbestos exposure. In a December 2015 opinion, Dr. G. opined that the Veteran's respiratory problems stem from acute bronchitis in service in combination with his reported pneumonia. However, as noted above, there is no evidence of pneumonia or is found in the Veteran's STRs. Dr. G. also bases his opinion on the Veteran's unverified reports of exposure to radiation, asbestos, and "toxic cleaning agents" in service. However, as such exposure (beyond his conceded asbestos exposure) is not shown by the record, Dr. Gilliard is careful to qualify his opinion by stating that the Veteran's respiratory disorder is more likely than not related to his exposure to "possible" radiation and asbestos and "potentially" toxic cleaning agents. The Board finds these assertions regarding the Veteran's exposure to be speculative, and therefore, inadequate to establish a nexus. Finally, in March 2022, the Veteran submitted a third opinion by a Dr. I.N. In that opinion, the private examiner discusses the severity of the Veteran's lung function, concluding that, even if the Veteran had smoked for a prolonged period of time (as the record reflects), it is clear for the literature that asbestos would still have been a very significant contributory factor to his deteriorating lung function. Therefore, it is his opinion that it is at least as likely as not impossible to separate the various symptoms and levels of functional/occupational impairment caused by the Veteran's service-connected asbestosis versus his non-service-connected COPD. The Board does not find this opinion to be probative of the question of service connection of COPD. While it does address the severity of his asbestosis, which has already been granted service connection, and it does imply that asbestos exposure could contribute to decreased lung functioning, it does not explicitly link COPD to any incident of active service. Rather, it appears to link the COPD to the Veteran's long history of tobacco use, which is not subject to service connection. In addition to the private opinions submitted by the Veteran, he has also been afforded several VA examinations in connection with his claim. In March 2010, a VA examiner noted that COPD is not caused by asbestos exposure. It is caused, in this case, by tobacco use. Two different VA examiners reiterated in November and December 2011 that asbestos exposure does not cause COPD and that the Veteran's COPD was caused by tobacco smoking. In June 2012, yet another VA examiner noted that there is "absolutely" no present evidence of asbestos exposure; no pleural plaques or evidence of interstitial lung disease was shown during previous chest x-rays or CT scans nor any reduction in lung volume indicative of asbestosis. Furthermore, the Veteran's PFT's are consistent with COPD, not restrictive lung disease. The opinion of the June 2012 VA examiner is given significant probative value as it is the first opinion of record that is based on diagnostic testing rather than the Veteran's own self-reports. In a July 2016 addendum opinion, the same VA examiner clarified that there is no evidence that any of the Veteran's respiratory impairment results from asbestosis. In November 2014, a VA examiner noted that, per the Veteran's chest x-rays, there are no pleural plaques or interstitial lung disease that would support a diagnosis of asbestosis. In June 2020, yet another VA examiner opined that the Veteran's respiratory impairment is due to his history of tobacco smoking and not related to any asbestos exposure. Specifically, the examiner opined that while the Veteran reported he was exposed to asbestos during his naval service, there is lack of clear evidence to support that he experienced COPD as a result of his military service. He was a tobacco user, and tobacco use is most known to cause COPD. Asbestos generally speaking does not cause COPD. According to the literature from UpToDate, "Asbestosis is a slowly progressive process that culminates in respiratory failure in a minority of patients. Asbestosis represents pulmonary fibrosis induced by inhalation of asbestos fibers. The detection of asbestos fibers and ferruginous bodies within the lung parenchyma allows for differentiation from other forms of pulmonary fibrosis." Asbestos represents pulmonary fibrosis, as indicated by the literature, and not COPD. Similarly, asbestos has not been identified to cause bronchiectasis. Therefore, the veteran's current conditions of COPD and bronchiectasis are not related to his claimed asbestos exposure. In a September 2021 addendum opinion, the same examiner clarified that the Veteran's treatment for productive cough in service was not related to his development of COPD, as he had a clear smoking history. The opinion of the June 2020 VA examiner is given substantial probative weight. The opinion was rendered by qualified medical professional after review of the claims file and application of the facts to known medical principles and supported the conclusion with published medical reference materials. Based on the foregoing, the Board finds that a nexus has not been established. The evidence indicates that the Veteran's respiratory impairment, other than his already service-connected asbestosis, is due to a long history of tobacco smoking rather than any event of service to include asbestos exposure. To the extent that tobacco may have been used while in service, service connection for disability on the basis that it resulted from an injury or disease attributable to tobacco usage by the Veteran during service is prohibited. 38 U.S.C.A. § 1103. VA compensation is not warranted for claims received after June 9, 1998, for disabilities or death attributed to tobacco usage. 38 C.F.R. § 3.300. In conclusion, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for a respiratory disorder other than asbestosis, to include COPD and bronchiectasis, is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim is denied. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, "[w]here 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. 2. Entitlement to an initial disability rating greater than 10 percent for asbestosis. The Veteran seeks a higher rating for his asbestosis. After a review of the evidence, the Board finds that a rating greater than 10 percent is not warranted. Asbestosis rated using the General Rating Formula for Interstitial Lung Disease under 38 C.F.R. § 4.97, Diagnostic Code 6833. Under that Diagnostic Code, the following ratings are available: 10 percent Forced Vital Capacity (FVC) of 75 to 80 percent predicted, or DLCO (SB) of 66 to 80 percent predicted; 30 percent FVC of 65 to 74 percent predicted, or DLCO (SB) of 56 to 65 percent predicted; 60 percent FVC of 50 to 64 percent predicted, DLCO (SB) of 66 to 80 percent predicted, or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation; 100 percent FVC less than 50-percent predicted, DLCO (SB) less than 40-percent predicted, maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, cor pulmonale or pulmonary hypertension, or requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6833. Generally speaking, pulmonary function testing (PFT) is required to evaluate asbestosis, except (1) when the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less. If a maximum exercise capacity test is not of record, evaluate based on alternative criteria; (2) when pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed (3) when there have been one or more episodes of acute respiratory failure, or (4) when outpatient oxygen therapy is required. 38 C.F.R. § 4.96(d)(1). 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. 38 C.F.R. § 4.96(d)(4). When evaluating based on PFT's, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. 38 C.F.R. § 4.96(d)(5). The Veteran was afforded a VA examination November 2011. Pulmonary function testing resulted in FVC measured 80 percent predicted and DLCO measured 24.86 predicted. Post-bronchodilator testing was not completed because the examiner stated that the Veteran's pulmonary status was too compromised to complete the testing. That examination report also indicated that the Veteran required consistent outpatient oxygen therapy. On that occasion, the examiner opined that the results were consistent with the Veteran's reported history of asbestos exposure. In support of his claim, the Veteran submitted additional pulmonary function test results conducted by his private examiner in December 2012. The results were an FVC of 59 percent predicted due COPD, bronchiectasis and asbestos-related pleural disease. DLCO was not reported, although FEV1 was 40 percent predicted and he was required to use constant low-flow oxygen, 24 hours a day. A March 2013 VA examination report showed FVC 78 percent predicted, with post-bronchodilator testing of 85 percent predicted. DLCO was 46 percent predicted. Outpatient oxygen therapy was required continuously (more than 17 hours per day). The examiner attributed the Veteran's symptoms to both asbestosis and restrictive lung disease, identified as COPD July 2013 private PFTs showed FVC of 66, with no DLCO reported. Constant oxygen use was documented. In addition, medical records show that the Veteran uses outpatient oxygen therapy to treat respiratory impairment. March 2021 PFTs indicate pre- and post-bronchodilator FVC results of 85 percent predicted, and DLCO of 54 percent predicted, which the examiner attributed to a combination of COPD, bronchiectasis, asbestosis, although the primary limitation was due to COPD. He was described as requiring oxygen for his asbestosis "all the time." In this case, as addressed above, the Board has denied service connection of any lung disease other than asbestosis. When considering the rating for a disability, it is possible that a veteran will have another, non-service-connected disability which may resemble the effects of his service-connected disability. In such a case, the veteran should not be compensated for non-service-connected disabilities or their effects. However, when it is not possible to separate the effects of the service-connected condition from a non-service-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt on any issue be resolved in the veteran's favor, and that such signs and symptoms be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181 (1998). At first glance, the medical evidence of record indicates that a higher rating for asbestosis is warranted. Indeed, DLCO findings from November 2011 support a 100 percent rating, and while FVC findings imply a possible rating between 10 and 60 percent, the Veteran has also been consistent found to require constant outpatient oxygen therapy for the entire period on appeal. This evidence suggests that a 100 percent rating may be warranted. Therefore, the question before the Board is whether or not these findings are related either exclusively to his asbestosis, or whether the symptoms attributable to his asbestosis are indistinguishable from his other non-service-connected disabilities. The Veteran's private pulmonologist noted that the Veteran is dependent upon oxygen and provided definitive diagnoses of COPD, emphysema, and chronic bronchitis due to a history of tobacco smoking. Upon review of the medical evidence of record, a VA examiner opined in April 2012 that the Veteran's pulmonary functioning tests (PFTs) are consistent with COPD, not restrictive lung disease (asbestosis), but did not discuss whether they could be separated. In June 2012, an examiner found no evidence to support a diagnosis of asbestosis or interstitial lung disease. In a July 2012 addendum, the same VA examiner clarified that there is no evidence that the Veteran's respiratory impairment results from asbestosis, although the opinion consisted of a single sentence and did not provide any rationale as to how that conclusion was reached. Two different VA examiners agreed in April 2018 that the Veteran's PFTs show COPD only and that the condition is solely attributable to the Veteran's history of tobacco smoking, although those opinions are of limited probative value as they state that the Veteran does not have asbestosis, despite a confirmed diagnosis of that condition throughout the record. In March 2022, the Veteran submitted a written opinion from the Chief of Pulmonary Medicine at Syosset Hospital/Northwell Health, Dr. I.N. In that letter, the private pulmonologist stated that he had reviewed the complete claims file and medical history of the Veteran, to include over 3100 pages of documents which further included VA treatment records, private treatment records, pulmonary functioning testing, and radiological studies. The private pulmonologist then provided a detailed medical history and discussion of the nature of asbestosis as well as bronchiectasis, emphysema, and COPD. After discussing the medical history of the Veteran, and citing to multiple medical treatises on the topic, the examiner concluded that there is no scientific basis to separate the long-term effects of asbestos from other disabilities related to tobacco use. Asbestos can cause emphysematous changes on CAT scan, and the CAT scan of 2005 of the Veteran was entirely compatible with a diagnosis of asbestosis, without or without the contribution of tobacco use. In addition, even if the Veteran had smoked fr a prolonged period of time, it is clear from the literature that asbestos would still have been a very significant factor in his deteriorating lung function. Therefore, it is the private pulmonologists opinion that it is impossible to separate the symptoms and levels of functional and occupational impairment caused by the Veteran's service-connected asbestosis as opposed to his non-service-connected COPD. The private pulmonologist also confirmed the Veteran's required constant use of at-home oxygen therapy, and that his lung condition causes severe interference with his ability to obtain and maintain gainful employment or carrying out tasks consistently. The Board finds this opinion to be particularly persuasive in this specific matter. that opinion was given by a board-certified specialist in pulmonology, with consideration of the complete medical record relevant in this specific case, and provides a detailed rationale for why the symptoms of the service-connected asbestosis cannot be distinguished from those of the non-service-connected lung diseases, to include COPD. Additionally, prior examinations tend to attribute his pulmonary functioning results to a combined disability picture including asbestosis. While some opinions may rule out asbestosis as causative of the Veteran's decreased pulmonary functioning, those opinions tend to be based on a lack of actual diagnosis of asbestosis, despite that condition be confirmed throughout the record. In light of the evidence of record, particularly the March 2022 private opinion, the Board finds that reasonable doubt should be resolved in the Veteran's favor, and that his pulmonary signs and symptoms, to include his long-history of required outpatient oxygen therapy, be attributed to the service-connected asbestosis despite the fact that non-service-connected lung conditions may also contribute to his decreased lung function. See Mittleider, supra. Because the symptoms cannot be distinguished between the various diagnoses, and because he requires constant outpatient oxygen therapy, the Board finds that the criteria for a 100 percent rating has been met for the period on appeal. As such, the appeal is granted in full. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2018). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed to Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58 (2019). 3. Entitlement to TDIU. The issue of entitlement to TDIU has been raised in this case and will be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). In this case, the Board has granted a maximum rating of 100 percent for the Veterans asbestosis for the entire period on appeal. Because the Veteran now has a total rating for that disability, he does not meet the basic schedular criteria for a grant of TDIU and the question of such entitlement is now moot. 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). Further, Entitlement to TDIU may still be considered in cases where a veteran has a 100 percent disabling rating for a single disability, and VA finds that TDIU is warranted based solely on disabilities other than the disability that is rated at 100 percent. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). However, in this matter, the Veteran is only in receipt of service connection of asbestosis, and therefore there are no other service-connected disabilities to result in a grant of TDIU. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, 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.