ASBESTOSIS

Summary

The veteran served from June 1970 to January 1994. This case involves appeals from multiple VA Regional Office decisions. The veteran sought an increased rating for asbestosis, service connection for left shoulder disability, and service connection for benign prostatic hypertrophy (BPH). The Board denied the claim for an increased rating for asbestosis, finding the veteran's pulmonary function tests did not meet the criteria for a higher evaluation. The veteran's FVC was 88 percent predicted, FEV-1 was 92 percent predicted, and FEV-1/FVC was 75 percent, aligning with the 10 percent disability rating criteria under DC 6833. The Board noted the absence of pneumonia or other conditions caused by the asbestosis. The claims for left shoulder disability and BPH were remanded. For the left shoulder, the veteran reported in-service complaints of neck and left arm pain, and a diagnosis of left shoulder strain. The Board found the VA failed to obtain a medical opinion on the nexus between these in-service complaints and the current disability. For BPH, the veteran reported painful urination in service and a current diagnosis of BPH, with his doctor indicating a likely service connection. The Board found the VA failed to obtain a nexus opinion for this condition as well. Both remands require addendum opinions addressing the likelihood of service connection, with examiners to review the entire claims file and the remand text.

Rationale

Pulmonary function tests (FVC 88%, FEV-1 92%) align with 10% criteria; No pneumonia or other conditions identified due to asbestosis; Veteran's contention of higher rating due to potential return of pneumonia not supported by current evidence

Full Decision Text

Citation Nr: A26032302
Decision Date: 04/08/26	Archive Date: 04/08/26

DOCKET NO. 240827-468468
DATE: April 8, 2026

ORDER

Entitlement to an initial evaluation in excess of 10 percent for asbestosis is denied.

REMANDED

Entitlement to service connection for left shoulder disability is remanded. 

Entitlement to service connection for benign prostatic hypertrophy (BPH) is remanded.

FINDING OF FACT

The probative evidence of record demonstrates that the symptoms of asbestosis are more nearly approximated by the 10 percent criteria than the 20 percent criteria.

CONCLUSION OF LAW

The criteria for an initial evaluation in excess of 10 percent for asbestos are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.96, 4.97, Diagnostic Code (DC) 6833.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1970 to January 1994. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO)'s decisions issued in November 2023, January 2024, and August 2024. 

In the August 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket, appealing the issues adjudicated in the November 2023, August 2024, and September 2022 AOJ decisions. The August 2024 VA Form 10182 is not timely for appealing the September 2022 AOJ decision. No good cause was raised. The Board is not waiving its right to enforce the filing deadline based on the facts and circumstances of this case. Forfeiture is not a relevant consideration. See Hall v. McDonough, 34 Vet. App. 329, 334 (2021).

As a result, an appeal of these issues are not properly before the Board in the AMA system, claims processing rules were not followed, and the appeals of these issues are dismissed. See Ferko v. McDonough, 37 Vet. App. 262 (2024). The Board will not adjudicate the appeal from the September 2022 AOJ decision. Moreover, the November 2023 AOJ decision deferred the adjudication of service connection for BPH, which was denied in the January 2024 decision. Although the Veteran did not specify the January 2024 decision, he identified the issue of service connection for BPH as appealed. Therefore, the Board notes that his appeal on the issue of BPH is from the January 2024, and not November 2023, rating decision. This is appropriate since the January 2024 decision issued within one year prior to August 2024. 

Therefore, the Board may only consider the evidence of record at the time of the November 2023 decision on appeal for the issue of asbestosis, January 2024 decision for the issue of BPH, and August 2024 decision for the issue of left shoulder. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

Entitlement to an initial evaluation in excess of 10 percent for asbestosis is denied.

The Veteran contends that he is entitled to a higher evaluation for asbestosis because it caused pneumonia, which was "cured by draining," but could return. See August 2024 VA Form 10182. 

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 ;38 C.F.R. § Part 4. 

When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects
 1155 ;38 C.F.R. § Part 4. 

When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.

The Veteran's asbestosis is currently evaluated as 10 percent disabling under DC 6833. 

DC 6833 provides the following rating criteria: 

Forced Vital Capacity (FVC) less than 50-percent predicted, or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (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	100%

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	60%

FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted	30%

FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66- to 80-percent predicted	10%

38 C.F.R. § 4.97. 

In September 2023, the Veteran underwent a VA examination. He reported that the current symptom was shortness of breath and the treatment consisted of taking Singulair. He reported that shortness of breath when walking up the stairs or on an incline and it prevents him from living on the second floor. The examination was negative for the presence of pneumonia. The pulmonary function testing (PFT) was performed, with the result of FVC 88 percent predicted, FEV-1 92 percent predicted, FEV-1/FVC 75 percent. The examiner determined that FEV-1 percent predicted most accurately reflects the level of his disability. DLCO testing was not completed because it was not indicated for his condition. He does not have multiple respiratory conditions. 

Since his FEV was 88 percent, FEV-1 was 92 percent, and FEV-1/FVC was 75 percent during the evidence review period, his symptoms of asbestosis are more nearly approximated by the 10 percent criteria than the 20 percent criteria. The medical evidence of record does not identify any other conditions that currently exist due to his asbestosis. The claim is denied. 

REASONS FOR REMAND

1. Entitlement to service connection for left shoulder disability is remanded. 

The Veteran contends that he has left shoulder disability as a result of activities he conducted while in service, to include digging, bomb damage repairs, overuse, and misuse and that those activities contributed to left shoulder pain. See September 2023 VA shoulder examination. 

A review of the Veteran's service treatment records (STRs) indicates that the Veteran had a complaint of neck pain and left arm pain, intermittently for several years in September 1982 and September 1989. Moreover, he was diagnosed with left shoulder strain in the May 2022 VA examination. This evidence was available prior to the issuance of the August 2024 rating decision on appeal. Yet, the AOJ did not obtain a medical opinion for a possible nexus between in-service complaints and the current left shoulder disability, to include left shoulder strain. Remand is necessary to correct the pre-decisional error in duty to assist. 38 C.F.R. § 20.802 (a). See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4).

2. Entitlement to service connection for BPH is remanded.

The Veteran reports that he was diagnosed with enlarged prostate and has difficulty with urination without taking pills and that his doctor told him that this condition is likely related to his military service. See April 2022 VA Form 21-526EZ. 

In his Report of Medical History at separation, he indicated that he
, to include left shoulder strain. Remand is necessary to correct the pre-decisional error in duty to assist. 38 C.F.R. § 20.802 (a). See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4).

2. Entitlement to service connection for BPH is remanded.

The Veteran reports that he was diagnosed with enlarged prostate and has difficulty with urination without taking pills and that his doctor told him that this condition is likely related to his military service. See April 2022 VA Form 21-526EZ. 

In his Report of Medical History at separation, he indicated that he had painful urination in 1991. He is currently diagnosed with BPH, as reflected in the September 2023 VA examination. This evidence was available at the time of the January 2024 rating decision on appeal; yet the AOJ failed to obtain a medical opinion on the nexus between the in-service complaint and the current disability. Remand is necessary to correct the pre-decisional error in duty to assist. 38 C.F.R. §§ 20.802(a), 3.159(c)(4).

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's left shoulder disability, to include left shoulder strain, is (likelihood is at least approximately balanced or nearly equal, if not higher) related to his service, to include in-service complaint of left arm pain with the neck pain. The examiner must review the entire claims file to include the remand text above before rendering the opinion. All opinions must accompany sufficient rationale. 

2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's BPH is related to his service (likelihood is at least approximately balanced or nearly equal, if not higher), to include the in-service complaint of painful urination. The examiner must review the entire claims file to include the remand text above before rendering the opinion. All opinions must accompany sufficient rationale. 

3. Readjudicate the claims. 

 

 

Emily Tamlyn

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Y. Taylor, 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.