ASBESTOSIS

PAUL SORISIO · 2026 · Case ID: A26036484

MIXED

Summary

The veteran, who served from June 1959 to July 1962, appeals a July 2025 rating decision. The veteran sought an increased rating for his service-connected asbestosis, also claimed as a lung condition, and service connection for sleep apnea. The Board granted an increased rating of 10 percent for asbestosis, finding that the March 2025 pulmonary function tests (PFTs) indicated a DLCO (SB) of 76-percent predicted, which warrants a 10 percent rating under Diagnostic Code 6833. The Board noted that the VA examiner incorrectly used older PFT results, but applied the more favorable March 2025 results. Service connection for sleep apnea was denied. The Board found that while the veteran has a diagnosis of sleep apnea, the evidence persuasively weighed against a finding that it began during service or is related to an in-service event. The VA examiner opined that asbestos exposure does not cause sleep apnea, and that lifestyle factors like BMI and tobacco use were likely contributors. The Board also noted the veteran reported the condition began in May 2025, long after service, and that separation examination records showed no defects. The Board concluded that the evidence was against the claim for sleep apnea.

Rationale

March 2025 PFTs showed DLCO (SB) of 76-percent predicted; Warrants 10 percent rating under DC 6833; Higher rating not warranted based on PFT results

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

6833

Docket No.

251226-625866

Full Decision Text

Citation Nr: A26036484
Decision Date: 04/20/26 Archive Date: 04/20/26

DOCKET NO. 251226-625866
DATE: April 20, 2026

ORDER

An increased rating of 10 percent, but no higher, for asbestosis, also claimed as lung condition, is granted.

Service connection for sleep apnea is denied.

FINDINGS OF FACT

1. During the period on appeal, the Veteran's asbestosis manifested with DLCO(SB) of 76-percent predicted.

2. The evidence of record persuasively weighs against finding that sleep apnea began during active service or is otherwise related to an in-service injury or disease including exposure to asbestos.

CONCLUSIONS OF LAW

1. The criteria for a 10 percent rating, but no higher, for asbestosis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.96, 4.97, Diagnostic Code 6833.

2. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1959 to July 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2025 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO).

In the December 2025 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Based upon the selection of the Direct Review option, the Board may only consider the evidence of record as of July 28, 2025-the date of the rating decision on appeal. See 38 C.F.R. § 20.301. If the Veteran submitted evidence that was added to the record after July 28, 2025, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. See 38 C.F.R. § 3.2501.

To the extent that the Veteran also included the issue of service connection for tinnitus on his December 2025 VA Form 10182, in addition to the issues listed on the title page of this decision, this issue was not adjudicated by any rating decision in the year prior to the Board's receipt of the VA 10182. Thus, the Board lacks authority to address this issue and it is not currently before the Board. That said, the Veteran is advised that if he believes that he is entitled to service connection for tinnitus, he should file a Supplemental Claim (VA 20-0995) with new and relevant evidence to readjudicate the issue.

1. An increased rating of 10 percent, but no higher, for asbestosis, also claimed as lung condition, is granted.

The Veteran asserts that he is entitled to a compensable rating for asbestosis. The Board observes that the Veteran also filed a claim for "lung condition-new condition". See VA 21-526EZ received 6/18/2025 at page 11. However, in the July 2025 rating decision on appeal, the RO combined the issue with an increased rating for asbestosis. The Board finds that no other lung conditions were diagnosed beyond the Veteran's asbestosis in the June 2025 VA examination. See C&P Exam received 7/25/2025 at page 2. Additionally, the Board finds, after a review of his treatment records, the Veteran has no diagnosis of a lung condition except for his service-connected asbestosis. See Capri received 5/14/2024 at page 129. Accordingly, the Board will also include the claimed lung condition in this appeal to give the Veteran the ability to appeal the denial if he chooses. That said, the Board advises that the Veteran can file a supplemental claim (VA 20-0995) with new and relevant evidence of a lung condition if he believes he has a lung disability that should be service connected. 38 C.F.R. § 3.2501.

Increased Rating for Asbestosis

Asbestosis is evaluated under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6833. Under DC 6833, evaluations are determined purely by certain PFTs: a 10 percent evaluation is warranted for forced vital capacity (FVC) of 75-80 percent predicted, or diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) of 66-80 percent predicted; a 30 percent evaluation is warranted for FVC of 65-74 percent, or DLCO (SB) of 56-65 percent predicted; a 60 percent evaluation is warranted for FVC of 50-64 percent predicted, or DLCO (SB) of 40-55 percent predicted, or maximum exercise capacity of 15-20 ml/kg in oxygen consumption with cardiorespiratory limitation; the maximum evaluation of 100 percent is warranted for FVC less than 50 percent predicted, or DLCO (SB) less than 40 percent predicted, or maximum exercise capacity less than 15 ml/kg in oxygen consumption with cardiorespiratory limitation, or cor pulmonale or pulmonary hypertension, or requirement of outpatient oxygen therapy. See 38 C.F.R. § 4.97, DC 6833.

There are special provisions under 38 C.F.R. § 4.96 for the application of the rating criteria for certain diagnostic codes for lung conditions, including DC 6833. PFTs are required to evaluate these conditions, except when the results of maximum exercise capacity test are of record and are 20 ml/kg or less; when pulmonary hypertension or pulmonale or right ventricular hypertrophy has been diagnosed; or when there have been one or more episodes of acute respiratory failure. 38 C.F.R. § 4.96(d)(1). If DLCO (SB) results are not of record, such conditions are evaluated based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2). When PFTs are not consistent with clinical findings, conditions are evaluated based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. 38 C.F.R. § 4.96(d)(3). Post-bronchodilator studies are required when PFTs 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 PFTs, post-bronchodilator results are to be used unless the post-broncho-dilator results were poorer than the pre-bronchodilator results, in which case, the pre-bronchodilator results are used for rating purposes. 38 C.F.R. § 4.96. These rating codes do not contain provisions for a zero percent evaluation. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31.

The June 2025 VA examination shows only a diagnosis for asbestosis, and no other lung conditions. The Veteran reported his current symptoms as shortness of breath when walking a short distance. The Veteran reported no treatment for his asbestosis since its diagnosis.

At outset, the Board finds that the June 2025 VA examiner used the February 2011 PFTs rather than the March 2025 PFTs that were on record at the time of the June 2025 VA examination. The February 2011 PFTs were noncompensable and are not an indication of his current level of disability. 38 C.F.R. §3.327(a); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) ("VA regulations specifically require the performance of a new medical examination . . . [when] 'evidence indicated there has been a material change in a disability or that the current rating may be incorrect."). Accordingly, the Board will base its finding on the March 2025 P
February 2011 PFTs rather than the March 2025 PFTs that were on record at the time of the June 2025 VA examination. The February 2011 PFTs were noncompensable and are not an indication of his current level of disability. 38 C.F.R. §3.327(a); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) ("VA regulations specifically require the performance of a new medical examination . . . [when] 'evidence indicated there has been a material change in a disability or that the current rating may be incorrect."). Accordingly, the Board will base its finding on the March 2025 PFTs and give the rating most favorable to the Veteran.

The March 2025 PFTs were as follows, pre-bronchodilator results FVC was 85-percent predicted; FEV-1 was 95-percent predicted, and FEV-1/FVC was 82-percent predicted. Post-bronchodilator results were as follows, FVC was 85-percent predicted, FEV-1 was 97-percent predicted; and FEV-1/FVC was 84-percent predicted. The DLCO(SB) was 76-percent predicted. Accordingly, the Board finds that a 10 percent rating but no higher is warranted since the DLCO(SB) is 76-percent predicted and warrants a 10 percent rating under DC 6833. That said, a higher 30 percent rating under DC 6833 is not warranted based on the March 2025 PFT results since the record does not show FVC of 65 to 74-percent predicted; or DLCO (SB) of 56-to 65-percent predicted. 38 C.F.R. §4.97, DC 6833.

The Board has also reviewed the treatment records and found no other PFT results during the period on appeal. As such, the Board finds that the March 2025 PFT results are the most probative and competent evidence of the Veteran's current level of disability. Therefore, the Board finds that a 10 percent rating for asbestosis but no higher is granted. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

2. Service connection for sleep apnea is denied.

The Veteran contends that he is entitled to service connection for sleep apnea. At the June 2025 VA examination, the Veteran reported that the condition began in May 2015, which is roughly 53 years after he separated from service in 1962. See C&P Exam received 7/25/2025 at page 2.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that, while the Veteran has a diagnosis of obstructive sleep apnea, the evidence of record persuasively weighs against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease.

The Veteran received a VA examination in June 2025 and was diagnosed with sleep apnea as of May 2025. The Veteran, who was examined via telehealth, reported that the condition began in May 2025 with snoring and breathing difficulty during sleep. The Veteran reported that a CPAP to treat his sleep apnea was pending. The Veteran's May 2025 sleep study showed severe obstructive sleep apnea.

The June 2025 VA examiner opined that his sleep apnea was less likely than not caused by his toxic exposure risk activity (TERA). As rationale, the June 2025 VA examiner explained that there is currently no medical evidence or research that shows that his conceded asbestos exposure causes sleep apnea. Rather, the Veteran's medical history of tobacco use, his BMI, and other lifestyles factors were likely contributory to his diagnosis. See C&P Exam received 7/25/2025 at page 4.

The Board finds that service connection due to his conceded TERA exposure is not warranted
AP to treat his sleep apnea was pending. The Veteran's May 2025 sleep study showed severe obstructive sleep apnea.

The Board finds that service connection due to his conceded TERA exposure is not warranted since as the probative competent medical evidence does not show that his sleep apnea was caused by his asbestos exposure. Rather, the only competent medical evidence, the June 2025 VA examiner medical opinion, found that there was no medical link between asbestos exposure and sleep apnea.

Additionally, the Board finds that service connection is otherwise not warranted. Specifically, a review of is treatment records show that his providers have educated him on the risks of obesity, including the development of sleep apnea. See Capri received 11/25/2011 at page 169. His problem list does not show a diagnosis of sleep apnea prior to May 2015. See Capri received 10/11/2012 at page 1. Although the Veteran submitted correspondence that suggested his sleep apnea was present when he received his lung cancer radiology report in May 2011, the Board finds the 2011 date is still after he separated from service in 1962, and therefore it does not tend to show a connection to his active duty service. See Medical Treatment Record received 6/18/2025 at page 2. Further, a review of his separation examination noted no defects or diagnoses. See STR-Medical received 7/25/2011 at page 3. Accordingly, the Board finds that direct service connection is not warranted since the Veteran reports the onset of his sleep apnea roughly 49 years after he left active-duty service, the June 2025 VA examiner found that he had a diagnosis of the condition in May 2025, and when he separated from service the Veteran had no diagnosis or treatment for sleep apnea.

Accordingly, the Board finds that relevant evidence is persuasively against the claim and service connection for sleep apnea is not warranted. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. Dixon

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.

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