ARTERIOSCLEROTIC HEART DISEASE (CORONARY ARTERY DISEASE)

Summary

The veteran, who served from June 1966 to March 1970, appeals the denial of service connection for coronary artery disease (CAD), obstructive sleep apnea (OSA), an increased rating for asbestosis, and total disability based on individual unemployability (TDIU). The Board denied service connection for CAD and OSA, finding the evidence weighed against a service connection due to the lack of in-service complaints or diagnoses, the negative findings on separation examinations, and the significant time lapse between service and diagnosis. The Board also denied an increased rating for asbestosis, finding the veteran's pulmonary function tests did not meet the criteria for higher ratings, and that private medical opinions were speculative and outweighed by VA examinations. The TDIU claim was denied, as the Board found the veteran's inability to work was primarily due to non-service-connected disabilities and age, not his service-connected conditions, despite a favorable SSA finding of disability. The Board found the veteran's lay statements regarding the cause of his CAD and OSA were not probative, and that private medical opinions lacked probative value due to speculation and failure to address risk factors. The Board relied on VA examinations which found the conditions less likely than not related to service or TERAs, citing multifactorial causes for CAD and obesity as the primary cause for OSA.

Rationale

No in-service diagnosis or treatment for heart condition.; Post-service diagnosis of CAD occurred 50 years after service.; Lay statements of continuity inconsistent with service and post-service records.; VA examinations found CAD less likely than not related to service or TERAs.; Private medical opinions lacked probative value due to speculation and ignoring risk factors.

Full Decision Text

Citation Nr: A26039085
Decision Date: 04/27/26	Archive Date: 04/27/26

DOCKET NO. 250919-588150
DATE: April 27, 2026

ORDER

Service connection for coronary artery disease (CAD) is denied.

Service connection for obstructive sleep apnea (OSA) is denied. 

A disability rating higher than 10 percent for asbestosis prior to June 3, 2025, and a rating higher than 60 percent thereafter is denied.

A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. 

FINDINGS OF FACT

1. The evidence persuasively weighs against finding that the Veteran's current OSA and heart disability, to include CAD status-post myocardial infract (MI) with stent placement, had its onset during active service, manifested within one year of service discharge, or is otherwise related to active service, to include toxic exposure risk activities (TERAs) while onboard the USS Kitty Hawk and his military occupational specialty (MOS) of being an aircraft mechanic.

2. From May 16, 2025 to June 3, 2025, the Veteran's asbestosis was not manifested by an FVC of 65- to 74-percent predicted, or; an DLCO (SB) of 56- to 65-percent predicted.

3. From June 3, 2025, the Veteran's asbestosis was not characterized by FVC values less than 50 percent predicted, or; DLCO (SB) values less than 40-percent predicted, or; maximum exercise capacity values less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale or pulmonary hypertension, or; required outpatient oxygen therapy.

4. The most probative evidence indicates that the?Veteran's service-connected disabilities do not preclude him from substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for service connection for a heart disability, to include CAD, have not been met.  38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309

2. The criteria?for?service connection?for?OSA have not been met.? 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.309.

3. The criteria for a disability rating higher than 10 percent for asbestosis prior to June 3, 2025, and a rating higher than 60 percent thereafter, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Code 6833.

4. The criteria for entitlement to a TDIU have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(b)

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1966 to March 1970.

This appeal comes from June 2025 and August 2025 Appeals Modernization Act (AMA) rating decisions.  The appellant initially requested the hearing option in his September 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD).  See VA Form 10182 AMA Notice of Disagreement (Hearing Review Lane) received in September 2025.

In December 2025, the appellant withdrew the hearing request; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant or his or her representative within 90 days following receipt of the withdrawal.  38 C.F.R. § 20.302(b).

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.? 38?U.S.C. §§?1110, 1131; 38?C.F.R. §?3.303.? Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein.? 38?C.F.R. §?3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service
.  38 C.F.R. § 20.302(b).

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.? 38?U.S.C. §§?1110, 1131; 38?C.F.R. §?3.303.? Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein.? 38?C.F.R. §?3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.? 38?C.F.R. §?3.303(d).??? 

To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service.? Horn v.? Shinseki, 25?Vet. App.?231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v.? Principi, 19?Vet. App.?1, 5 (2004) (citing Hickson v.? West, 12?Vet. App.?247, 253 (1999)).? In many cases, medical evidence is required to meet the requirement that the evidence be "competent."? However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.? Barr v. Nicholson, 21?Vet. App.?303, 309 (2007).??? 

Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38?U.S.C. §§ 1101, 1112; 38?C.F.R. §§?3.307(a)(3), 3.309(a).? Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.? 38?C.F.R. §§?3.307(a).

When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.? 38?C.F.R. §?3.303 (b).? To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question.? Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38?C.F.R. §?3.303(b).? There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.  Walker, 708 F.3d at 1336.??? 

Service connection may also be granted on a secondary basis for a condition that is not directly caused by the veteran's service.  38 C.F.R. § 3.310.  In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be due to the service-connected disability or disabilities.  Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998).  In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition.  See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b); see also Spicer v. McDonough, No. 2022-1239 (Fed. Cir. March 8, 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection).      

During the pendency of this appeal, the PACT Act
 West, 11 Vet. App. 509, 512 (1998).  In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition.  See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b); see also Spicer v. McDonough, No. 2022-1239 (Fed. Cir. March 8, 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection).      

During the pendency of this appeal, the PACT Act created a statutory duty for VA to provide a Toxic Exposure Risk Assessment (TERA) examination to any Veteran determined to have been exposed to toxic substances, when there is not sufficient evidence to establish service connection without such an examination.  38 U.S.C. § 1168 (a).  When providing the Secretary with a TERA opinion, the health care provider must consider (1) the total potential exposure through all applicable military deployments of the veteran; and (2) the synergistic, combined effect of all toxic exposure risk activities of the veteran.  38 U.S.C. § 1168 (a)(2)(A-B).  This requirement shall not apply if the Secretary determines there is no indication of an association between the disability claimed by the veteran and the toxic exposure risk activity for which the veteran submitted evidence.  38 U.S.C. § 1168 (b). 

In 2024 VA found that the Veteran's military occupational specialty (MOS) of Aircraft Mechanic exposed him to asbestos, fuels, hazardous chemicals, air pollutants, and industrial solvents due to his service aboard the USS Kitty Hawk.  As such, the Veteran participated in a TERA.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.? VA shall consider all information and medical and lay evidence of record.? Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.? 38?U.S.C. §?5107; 38?C.F.R. §?3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).?? 

Lastly, the Board notes that in Medlin?v. Collins, 2025 U.S. App. Vet.?Claims LEXIS 1122 (13 Aug 2025), the Court recently held that to satisfies its duty to provide adequate reasons and bases under 38 U.S.C. § 7104(d)(1) its' decisions should include the following: 1. address legal authorities potentially applicable to the claim; 2. analyze the credibility and probative value of evidence; 3. account for evidence that it finds persuasive or unpersuasive; and 4. provide reasons for rejecting any material evidence potentially favorable to the claimant.  

1. Entitlement to service connection for CAD.

As a matter of procedural history, in a May 2024 decision, the Board denied entitlement to service connection for a heart disability, to include CAD.  On June 14, 2024, VA received the Veteran's VA Form 20-0995: Supplemental Claim for entitlement to service connection for a heart condition.  An October 2024 rating decision found new and relevant evidence had been received and the Veteran's claim was reconsidered, and the claim was denied.  The Veteran appealed that decision.  In June 2025, the Board remanded the claim for additional development.  The claim was denied in an August 2025 rating decision and the current appeal ensued.

The Veteran asserts that he developed CAD in service as due to exposure to asbestos and other exposures while serving aboard the U.S.S. Kitty Hawk.

As an initial matter, the Board notes that there are no statutes specifically dealing with?asbestos?and service connection for?asbestos?related diseases and the Secretary of VA has not promulgated any specific regulations.? There is no presumption that a veteran was?exposed?to?asbestos?in-service and no disabilities for which service connection can be presumed if exposure is shown.? Thus, the standard service connection regulations apply.? 

The evidence shows the Veteran served aboard the USS Kitty Hawk from December 1968 to September 1969. 

The Veteran's service treatment records show that he complained of and was treated for chest pain on several occasions, including in June 1967, July 1967, and August 1967.  Chest imaging studies were negative with no evidence of
 are no statutes specifically dealing with?asbestos?and service connection for?asbestos?related diseases and the Secretary of VA has not promulgated any specific regulations.? There is no presumption that a veteran was?exposed?to?asbestos?in-service and no disabilities for which service connection can be presumed if exposure is shown.? Thus, the standard service connection regulations apply.? 

The evidence shows the Veteran served aboard the USS Kitty Hawk from December 1968 to September 1969. 

The Veteran's service treatment records show that he complained of and was treated for chest pain on several occasions, including in June 1967, July 1967, and August 1967.  Chest imaging studies were negative with no evidence of systemic illness.   In an October 1967 service narrative summary, the Veteran was noted to be hospitalized from August 28, 1967 to October 10, 1967.  The medical professional noted that no cause was discovered for his pain and a psychiatric evaluation found no evidence for a psychophysiological chest pain.  It was determined that the problem might be one of attitude and motivation rather than a psychiatric or organic illness.  The Veteran's diagnosis was changed to passive-aggressive personality, and he was discharged to duty.  Subsequent service treatment records do not document complaints of or treatment for chest pain or abnormal heart symptoms.  

A February 1968 periodic Report of Medical Examination and the February 1970 service discharge Report of Medical Examination showed that the Veteran's heart and vascular systems were determined to be clinically normal.

The Veteran's service treatment records do not contain any findings, diagnosis or treatment consistent with a heart disability, including CAD.  

After service, an April 1970 VA Report of Medical Examination for Disability Evaluation showed that the Veteran complained of tightness in his chest and occasional shortness of breath.  A physical examination of his cardiovascular system showed no heart enlargement, sinus rhythm, no murmur, and normal pulses. An electrocardiographic record from the same date showed results that were within normal limits.  Likewise, a May 1970 VA chest x-ray showed that the Veteran's heart and vessels were of average size and shape.  His lung fields were clear.

A July 2001 private treatment record showed that the Veteran was seen for a follow-up for hypertension and health maintenance.  He denied chest pain or shortness of breath.  He was noted to smoke one-half pack of cigarettes per day and to drink an average of six alcoholic beverages per week.  A physical examination of the cardiac systems showed that he had regular rate and rhythm.

An August 2002 private treatment record showed that the Veteran's cardiac system had regular rate and rhythm without murmurs or gallops.  His hypertension was noted to be stable on medication.

A September 2006 private annual physical evaluation showed that the Veteran reported having a family history that was significant for coronary disease. 

A January 2016 VA primary care note showed that the Veteran reported smoking one pack of cigarettes per day, and that he planned to quit entirely at the end of that month.  He planned on continuing to chew tobacco.

December 2020 VA treatment records showed that CAD was added to the Veteran's problem list and that he was to start cardiac rehabilitation after completing a stress test later in the month.

A June 2021 VA cardiology consultation note showed that in November 2020, he had a left heart catheterization, which showed significant stenoses in his mid-right coronary artery (RCA), distal RCA, and mid-left anterior descending (LAD) artery for which he received three coronary stents.  He was noted to be working on cutting down his smoking, as he currently smoked one pack every three days and was smoking two packs per day prior to his MI in November 2020.

As to the claims of service connection for a heart disability manifested by chest pain, the Board finds it significant that the Veteran's in-service complaints of chest pain were attributed to noncardiac etiologies and repeated examinations and imaging studies were negative for any cardiovascular problems.  Moreover, the Board finds that his chest symptoms appear to have been transitory in nature and to have resolved with time.  See Owens v. Brown, 7?Vet. App.?429, 433 (1995). 

Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused a heart disability manifested by chest pain, disease despite the claims to the contrary and despite the Veteran being treated for chest pain while on active duty.  See 38?U.S.C. §§?1110, 1131; 38?C.F.R. §?3.303(a). 

Additionally, the post-service record does not show the Veteran being diagnosed with any of cardiac disability in the first year following his separation
 nature and to have resolved with time.  See Owens v. Brown, 7?Vet. App.?429, 433 (1995). 

Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused a heart disability manifested by chest pain, disease despite the claims to the contrary and despite the Veteran being treated for chest pain while on active duty.  See 38?U.S.C. §§?1110, 1131; 38?C.F.R. §?3.303(a). 

Additionally, the post-service record does not show the Veteran being diagnosed with any of cardiac disability in the first year following his separation from active duty.  Therefore, the Board finds that the presumptions found at?38 C.F.R. §?3.309(a) do not help the Veteran establish service connection for this claim.  See 38 U.S.C. §§ 1101, 1112, 1113;?38 C.F.R. §?3.307. 

More importantly, the Board finds that record does not show that the Veteran had a continued problem?with?a heart disability manifested by chest pain in and since service.  In fact, and as noted above, the Veteran was not diagnosed with the claimed heart disorder when examined for separation from service in February 1970, as well as when examined by VA in April 1970. 

In fact, post-service treatment records are negative for any symptoms associated with a heart disability, to include CAD, until 2020, half a century after discharge from service.? 

In this regard, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well.? See Buchanan v. Nicholson, 451 F.3d at 1335.? If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then the United States Court of Appeals for the Federal Circuit held that this evidence tends to weigh against a finding of a connection between the disability and service.? See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).? 

Therefore, to the extent the Veteran may assert continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service treatment records and post service treatment records.? See Owen, supra.  Accordingly, the Board finds that Veteran did not adequately show that his heart disability, to include CAD, continued in and since service despite the in-service complaints of chest symptoms.  Id. 

In reaching the above conclusion, the Board does not rely solely on the absence of contemporaneous evidence corroborating the reports of continuity.  Instead, there is evidence in the service treatment records including the February 1970 separation examination that are negative for diagnoses of any of the claimed heart disability and the post-service treatment records to include a VA examination in April 1970, and VA treatment records prior to 2020, wherein the Veteran not only affirmatively denied any problems with chest pain.  The Board places greater evidentiary weight on the findings by the examiners and the affirmative denials issued by the Veteran many years prior to the filing of his service connection claim, than the later statements alleging continuity of symptoms since service, which may be influenced by pecuniary interest in obtaining VA benefits.? See Cartwright v. Derwinski, 2?Vet. App.?24, 25 (1991) (pecuniary interest may affect the credibility of testimony); see also Caluza v. Brown, 7?Vet. App.?498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony).? 

Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem?with?a heart disability in and since active duty despite any claim to the contrary and despite the Veteran being treated for chest pain while on active duty.  See?38 U.S.C. §§ 1110, 1131;?38 C.F.R. § 3.303?(b). 

As a heart disability was not shown in service or for many years thereafter, the question in this case becomes whether the claimed disability is etiologically related to service.  On this question, the most persuasive evidence is against the claim. 

The Veteran underwent a VA heart examination in August 2023.  The examiner diagnosed CAD, acute, subacute or old myocardial infarction (MI).  Following
 not have a continued problem?with?a heart disability in and since active duty despite any claim to the contrary and despite the Veteran being treated for chest pain while on active duty.  See?38 U.S.C. §§ 1110, 1131;?38 C.F.R. § 3.303?(b). 

As a heart disability was not shown in service or for many years thereafter, the question in this case becomes whether the claimed disability is etiologically related to service.  On this question, the most persuasive evidence is against the claim. 

The Veteran underwent a VA heart examination in August 2023.  The examiner diagnosed CAD, acute, subacute or old myocardial infarction (MI).  Following a telephone interview of the Veteran, as well as a review of his records and self-reported history and symptoms, the VA examiner in September 2023 opined that the Veteran's current heart disability was less likely than not caused by the indicated TERAs, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all TERAs of the Veteran.  The examiner explained that the cause of the Veteran's CAD, status-post MI with stent placement is most likely multifactorial, including a combination of hypertension, hyperlipidemia, and diabetes mellitus type II, all of which are noted in his medical records.  The examiner further explained that given that the onset/diagnosis of the Veteran's current heart disability was not until 2020, which is 50 years after his separation from active duty, it was highly unlikely that his CAD, status-post MI with stent placement is in any way related to service, including but not limited to the Veteran's indicated TERAs.  Therefore, the examiner concluded that the Veteran's CAD, status-post MI with stent placement, was less likely than not caused by his MOS based exposure along with service aboard the USS Kitty Hawk after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic combined effect of all TERAs of the Veteran. 

In support of his claim, the Veteran submitted a June 2024 private medical statement from P. Ward, a registered nurse who also has a Juris Doctor, who noted that the Veteran was exposed to asbestos, fuels, aircraft exhaust, and toxic solvents while aboard the Kitty Hawk.  P. Ward indicated that a growing body of evidence suggested that long-term exposure to combustion particles was associated with atherosclerosis and cardiovascular diseases.  P. Ward also noted that asbestos exposure was now considered as an increased risk for cardiovascular disease.  

Along with the opinion report, the Veteran submitted an article published on the National Institute of Health: National Library of Medicine.  The conclusion of this article was that the meta-analysis showed that asbestos exposure significantly increased the risk of cardiovascular related diseases in exposed workers.  

The Veteran underwent a VA examination in June 2025.  Following a review of the claims file, with consideration of the Veteran's indicated TERAs, the examiner opined that it was less likely than not that CAD was caused by caused by the known TERA exposure after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic combined effect of all toxic exposure risk activities of the Veteran.  The examiner noted that consistent with the medical literature, the Veteran had numerous known risk factors for the development of CAD, including obesity, insulin resistance, advanced age at onset, a history of long-term tobacco use, hypertension and hyperlipidemia, among others.  

The examiner indicated that P. Ward's opinion asserting that the Veteran's CAD was due to service was not medically or scientifically sound therefore lacked credibility.  There was insufficient evidence showing that the indicated TERA exposures were a causative agent of CAD.  While a few studies showed a possible association between asbestos and CAD, there was no literature evidence for direct causation and the examiner felt exposure history was not congruent with study participants who had long-term occupational exposure to asbestos, therefore these conclusions were not likely applicable to Veteran.  Moreover, the examiner noted that the studies cited by P. Ward did not differentiate between CAD and other cardiac conditions also making them possibly not applicable to the Veteran's specific facts.  

The examiner concluded that the Veteran's other known significant risk factors for developing CAD, including advanced age at diagnosis, obesity, insulin resistance, long term tobacco use, hypertension and hyperlipidemia, outweighed his indicated TERA exposures.  Moreover, the fact that the onset of CAD was in 2020, more than 50 years after his TERA exposures, made causation from known remote exposure a less likely cause of CAD than other known long-term diagnosed previously mentioned risk factors more likely.  The examiner reiterated that there were significant causative risk factors outside of military service, such as hereditary, congenital, smoking history, weight, lab findings, multif
 cardiac conditions also making them possibly not applicable to the Veteran's specific facts.  

The examiner concluded that the Veteran's other known significant risk factors for developing CAD, including advanced age at diagnosis, obesity, insulin resistance, long term tobacco use, hypertension and hyperlipidemia, outweighed his indicated TERA exposures.  Moreover, the fact that the onset of CAD was in 2020, more than 50 years after his TERA exposures, made causation from known remote exposure a less likely cause of CAD than other known long-term diagnosed previously mentioned risk factors more likely.  The examiner reiterated that there were significant causative risk factors outside of military service, such as hereditary, congenital, smoking history, weight, lab findings, multifactorial, etc..., that far outweighed any military TERAs, which could not be ignored.  The examiner concluded that given the length of time from exposure compared to the onset of illness, common risk factors for the development of CAD, and the lack of causation found in the literature to this condition, it was less likely than not that CAD was caused by caused by the known TERA exposure after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic combined effect of all toxic exposure risk activities of the Veteran.

The examiner also opined that the Veteran's CAD was less likely than not caused or incurred in service, nor was it caused or aggravated by the service connected asbestosis.  The examiner explained that it was well known that CAD was a disease of aging and metabolic dysfunction.  The Veteran was in his early 20s during active service and it was unlikely that CAD was present at that time.  There was no evidence of diagnosis of heart disease during active duty service or shortly thereafter, despite the Veteran spending over one month twice inpatient with extensive work up on his heart and both times finding no evidence of organic heart disease.  The examiner based the opinion not on a lack of findings of heart disease in service, but rather on the extensive heart work-up documented in the service treatment records and within one year therefrom which was negative, proving positive evidence that that heart was sound and functioning during service and for many years thereafter, making CAD unlikely cause of chest pain during service and unlikely that CAD onset was during service.  Moreover, there was no evidence to support a finding that CAD was aggravated beyond its natural progression by his service connected asbestosis.  

In support of his claim, the Veteran submitted a September 2025 private medical opinion statement from Dr. R. Patel who reported having reviewed the claim file and opined, given the Veteran's prolonged exposure to asbestos, jet fuels, solvents, and other industrial toxins during service aboard the USS Kitty Hawk as an aircraft mechanic, that these exposures were at least as likely as not to have contributed to the development of his CAD.  In support of the opinion, Dr. Patel discussed multiple studies, including one that found emerging epidemiologic evidence suggesting that long-term asbestos exposure may contribute CAD through systemic mechanisms of inflammation and oxidative stress.  Dr. Patel also noted that cross-sectional analyses in occupational cohorts demonstrated a dose response relationship between cumulative exposure to asbestos and cardiovascular dysfunction.  Dr. Patel concluded that these findings provided biological plausibility that the same mechanisms could have contributed to the Veteran's development of CAD.  Another study showed that asbestos textile workers experienced a significantly higher mortality ratio for heart disease compared to unexposed populations, suggesting that cardiovascular risk was elevated even when asbestos exposure was primarily pulmonary.  In sum, Dr. Patel concluded that it was biologically plausible that the Veteran's TERAs caused his CAD because studies showed an association between long term exposure to particulate matter and the progression of CAD.  

Generally, the degree of?probative?value?which may be attributed to a medical opinion issued by a VA or?private?treatment provider takes into account such factors as its thoroughness and degree of detail and whether there was review of the appellant's history.? Prejean v. West,?13?Vet. App.?444?(2000); see also Madden v. Gober,?125 F.3d 1477, 1481?(Fed. Cir. 1997) (the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence).??? 

Concerning the opinion reports from Dr. Patel and P. Ward, the Board finds the reports are of limited, if any, probative value.? In support of the opinion, both P. Ward and Dr. Patel cited to numerous articles and studies, some of which are completely irrelevant to the facts of this case.? In this regard, the opinion reports relied on studies that generally found a correlation between long-term asbestos exposure, such as textile workers, and heart disease in general.  Unlike most of the subjects of the studies cited, the Veteran's presumed
. Cir. 1997) (the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence).??? 

Concerning the opinion reports from Dr. Patel and P. Ward, the Board finds the reports are of limited, if any, probative value.? In support of the opinion, both P. Ward and Dr. Patel cited to numerous articles and studies, some of which are completely irrelevant to the facts of this case.? In this regard, the opinion reports relied on studies that generally found a correlation between long-term asbestos exposure, such as textile workers, and heart disease in general.  Unlike most of the subjects of the studies cited, the Veteran's presumed TERAs aboard the USS Kitty Hawk was limited to 10 months.  Notably, the studies, in general, suggested a correlation or an increased risk for the development of heart disease.  Correlation does not equal causation.  Significantly, P. Ward and Dr. Patel fail to acknowledge, much less discuss, the Veteran's numerous significant known risk factors for the development of CAD, including advanced age at diagnosis, obesity, insulin resistance, long term tobacco use, hypertension and hyperlipidemia.  A medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record.  Stefl v. Nicholson, 21 Vet. App. 102, 124 (2007).  Finally, Dr. Patel's opinion was expressed in such speculative language ("biologically plausible") is inadequate and does not establish a plausible claim.  The Board finds the opinion inadequate for its conclusory and speculative nature and affords it little, if any, probative weight in adjudicating the claim.  See Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992).

Overall, the Board must unfortunately find that the private medical opinions lack a great deal of probative weight.? The opinions are, at best, grossly speculative and appear to be based on pure conjecture, bordering on advocacy, as opposed to the findings of objective medical examiners, ignoring key pieces of evidence.  

Beyond the above, at minimum, the private opinion reports are outweighed by the 2023 and 2025 VA examiners' medical opinion reports.? The VA examiners considered the Veteran's relevant history, including his indicated TERA exposures, and his lay statements and provided a well-reasoned rationale for the adverse conclusions reached.? The June 2025 VA examiner specifically addressed and discussed the medical literature and studies, as well as the private medical opinion rendered by P. Ward, and explained why they did not support the Veteran's assertions.? The VA examiner provided detailed and through explanation in support of the opinions rendered cited to the medical literature and provided adequate rationale for the conclusions reached.? Additionally, the VA examiners' opinions were internally consistent and consistent with other evidence of record and are of significant probative value.? Consequently, the Board finds the 2023 and 2025 VA examination opinion reports more probative and outweigh the findings of the private medical opinion reports.? See Nieves-Rodriguez v. Peake, 22?Vet. App.?295, 302-04 (2008).???? 

The Board has considered the Veteran's assertions that his current heart disability was caused by or related to his active duty, to include his indicated TERAs.  While the Veteran is competent to report symptoms related to this disability, including shortness of breath, fatigue, and chest pain, and treatment related to this disability, including receiving catheterization and coronary stenting, determining the precise cause of the Veteran's CAD, status-post MI with stent placement, is not a simple question, as there are conceivably multiple potential causes of the Veteran's current disability, which was illustrated by the 2023 and 2025 VA examiners who attributed the current disability to multifactorial causes, including a combination of long-term tobacco use, obesity, age, hypertension, hyperlipidemia, and diabetes mellitus type II.  In this case, the facts are complex enough that the Veteran's intuition about the cause of his current heart disability is not sufficient to establish a nexus between the current disability and service.  See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson - including both claimants and Board members - must be determined on a case-by-case basis.").  Accordingly, the lay opinions from the Veteran regarding the causal connection between the current heart disability and his active duty, including his indicated TERAs, are not probative.  Moreover, whether the symptoms the Veteran experienced in service
 this case, the facts are complex enough that the Veteran's intuition about the cause of his current heart disability is not sufficient to establish a nexus between the current disability and service.  See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson - including both claimants and Board members - must be determined on a case-by-case basis.").  Accordingly, the lay opinions from the Veteran regarding the causal connection between the current heart disability and his active duty, including his indicated TERAs, are not probative.  Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his in-service symptoms is a matter that requires medical expertise to determine. ?See Clyburn v. West,?12?Vet. App.?296, 301?(1999) ("Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). 

Simply?stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the claim, indicating?problems with his heart that began many years after service with no connection to service, including indicated TERAs therein, or a service-connected disability. 

In summary, there is no competent evidence of heart disease in service or within one year following discharge from service.? Thus, the provisions?regarding continuity of symptomatology are not applicable.??See Walker, 708 F.3d at 1340.? Moreover, the most probative and persuasive evidence is against a finding that his current CAD is related to service.????

In reaching the above conclusions, and in?accordance with Medlin, supra, the Board's decision included the following: 1. It addressed all legal authorities potentially applicable to the claims; 2. It analyzes the credibility and probative value of evidence; 3. It accounted for evidence that it found and unpersuasive; and 4. It provided reasons for rejecting any material evidence potentially favorable to the claimant. 

Also, in reaching the above conclusions, the Board considered the doctrine of reasonable doubt.  38 U.S.C. § 5107(b).  However, as the most probative evidence of record is against the claim (i.e., the evidence for and against the claim is not approximately in balance), the Board finds that the doctrine is not for application.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); See?Lynch, 30?Vet. App. 298. (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).?? 

2. Entitlement to service connection for OSA.

The Veteran seeks service connection for OSA, to include as due to exposure to asbestos and other exposures while serving aboard the U.S.S. Kitty Hawk.

The service treatment records contain no complaints, history or findings consistent with a sleep disorder. 

After service, VA treatment records from 2010 to 2025, show that the Veteran denied having sleep apnea.  

In May 2025, show that the Veteran reported snoring with observed episodes of apnea for several years.  

A June 2025 sleep study revealed OSA.	

The Board notes that the first documented evidence of OSA, is more than 55 years after the Veteran's discharge from service.? In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well.  See Buchanan, 451 F.3d at 1335; see also Maxson, 230 F.3d at 1333. To the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service and post-service treatment records.? Thus, the Veteran has not adequately shown that his present OSA complaints had onset and continued since service.??? 

On the question of a nexus between the current OSA and service, to include his indicated TERA exposures, the evidence weighs against the claim.????  

On VA examination in August 2025, the examiner noted that the Veteran initially presented with complaints of snoring and apneas in May 2025, followed by a sleep study in June 2025 that revealed OSA.  Records showed that the Veteran had a body mass index (
1333. To the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service and post-service treatment records.? Thus, the Veteran has not adequately shown that his present OSA complaints had onset and continued since service.??? 

On the question of a nexus between the current OSA and service, to include his indicated TERA exposures, the evidence weighs against the claim.????  

On VA examination in August 2025, the examiner noted that the Veteran initially presented with complaints of snoring and apneas in May 2025, followed by a sleep study in June 2025 that revealed OSA.  Records showed that the Veteran had a body mass index (BMI) of 35, indicative of obesity.  Following a review of the claims file and an examination of the Veteran, the examiner diagnosed OSA and opined that the condition was less likely than not proximately due to or the result of service or a service connected disability.  The examiner explained that OSA was caused by a blockage of the airway, usually when the soft tissue in the rear of the throat collapses during sleep.  The most common cause of OSA was excess weight and obesity, which was associated with the soft tissue of the mouth and throat.  During sleep, when throat and tongue muscles relaxed, this soft tissue could cause the airway to become blocked.  Based on the medical literature, there was a linear correlation between obesity and OSA.  In obese people, fat deposits in the upper respiratory tract narrowed the airway, thereby causing a decrease in muscle activity in this region, leading to hypoxic and apneic episodes, ultimately resulting in sleep apnea.  Therefore, the condition was less likely than not incurred as a result of service.   Concerning service connection for OSA secondary to the service connected tinnitus, the examiner explained that although tinnitus could affect sleep, it was not anatomically possible for tinnitus to cause airway blockage which is the main pathology in OSA.  

The examiner also opined that OSA was less likely than not caused by the indicated TERAs, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran.  The examiner explained that there was no medical or scientific evidence available that provided any indication of a relationship between the development of OSA and the indicated TERA.  In this regard, the Veteran had been diagnosed with OSA, not central apnea which would be due to central nervous system (CNS) issues resulting from possible exposure.  Additionally, the Veteran's indicated TERAs would not cause blockage of the airway, or the soft tissue in the rear of the throat to collapse during sleep, which, as noted above, was the main pathology in sleep apnea.  There was no medical literature to support finding of a direct causal relationship between the Veteran's indicated TERAs and the development of OSA.  Moreover, in this case there was a well-known risk factor for development of OSA present, obesity.  The examiner opined that obesity, a risk factor outside the Veteran's military service, far outweighed military exposures identified in the indicated TERAs.

In support of the claim, the Veteran's submitted the September 2025 opinion report from Dr. Patel who opined that the evidence strongly supported a direct connection between the Veteran's indicated TERAs and the later development of OSA.  In support of the opinion, Dr. Patel cited to multiple studies that linked inhaled pollutants, especially fine particulate matter, to disturbances in respiratory physiology and sleep architecture.  Reportedly, the research showed that even short-term exposure to high levels of pollutants could increase apnea and hypopnea events, while long term exposures contributed to chronic structural changes in the airway and sustained inflammatory activity.  In sum, Dr. Patel concluded that while direct studies linking asbestos exposure to OSA were limited, the combination of his documented asbestos-related lung disease and his diagnosis of severe OSA provided a biologically plausible and clinically supported connection between OSA and TERAs in service.  Therefore, it was at least as likely as not that his OSA was related to his cumulative asbestos exposure and resulting pulmonary impairment during service.  

Concerning the opinion reports from Dr. Patel, the Board finds the report is of limited, if any, probative value.? In support of the opinion, Dr. Patel cited numerous studies, some of which are completely irrelevant to the facts of this case.? Notably, the studies, in general, suggested a correlation between sleep problems, including apneas, and asbestos exposure/asbestosis.  As previously noted, correlation is not the same as causation and the fact that two conditions may be simultaneously present does not necessarily imply, much less confirm, causality.  Notably, Dr
.  Therefore, it was at least as likely as not that his OSA was related to his cumulative asbestos exposure and resulting pulmonary impairment during service.  

Concerning the opinion reports from Dr. Patel, the Board finds the report is of limited, if any, probative value.? In support of the opinion, Dr. Patel cited numerous studies, some of which are completely irrelevant to the facts of this case.? Notably, the studies, in general, suggested a correlation between sleep problems, including apneas, and asbestos exposure/asbestosis.  As previously noted, correlation is not the same as causation and the fact that two conditions may be simultaneously present does not necessarily imply, much less confirm, causality.  Notably, Dr. Patel acknowledged in formulating the opinion that studies that directly linked OSA to asbestos/asbestosis were limited.  Once again, Dr. Patel failed to acknowledge, the Veteran's significant known risk factor for the development of OSA, his BMI.  The Board finds the opinion inadequate for its conclusory and speculative nature and affords it little, if any, probative weight in adjudicating the claim.  See Stelf, 21 Vet. App. at 124; see Tirpak, 2 Vet. App. At 610-11.

Overall, the Board must unfortunately find that the private medical opinion from Dr. Patel lacks a great deal of probative weight.? Once agin, his opinion is, at best, grossly speculative and appears to be based on pure conjecture, as opposed to the findings of objective medical examiners, ignoring key pieces of evidence.  

Beyond the above, at minimum, the private opinion report is outweighed by the 2025 VA examiner's medical opinion reports.? The VA examiner considered the Veteran's relevant history, including his lay statements and provided a well-reasoned rationale for the adverse conclusions reached including a throughral explanation of the mechanics and causes of OSA.? The VA examiner addressed and discussed the medical literature and explained it did not support the Veteran's contentions.? The VA examiner provided detailed and through explanation in support of the opinions rendered cited to the medical literature and provided adequate rationale for the conclusions reached.? Additionally, the VA examiner's opinion was internally consistent and consistent with other evidence of record and are of significant probative value.? Consequently, the Board finds the VA examination opinion report more probative and outweigh the findings of the September 2025 private medical opinion report.? See Nieves-Rodriguez, 22?Vet. App. at 302-04.????

The Board has considered the statements from the Veteran asserting that his OSA was caused by service, to include his TERA exposures, a service connected disability.  The Veteran is certainly competent to report as to the observable symptoms he experienced, but he cannot diagnose himself because of the medically complex nature of such a diagnosis.? See Layno,?6?Vet. App. at 470; See Jandreau, 492 F.3d at 1376-77. ?The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship.?Id.? The Board finds that the specific, reasoned opinions of the VA examiner of greater probative weight than the more general lay assertions in this regard.? The examiner has training, knowledge, and expertise on which they relied to form the opinions, and the examiner provided rationale for the conclusions reached.???? 

Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the claim.??????? 

Finally, to the extent Dr. Patel appears to have found that the Veteran's OSA was secondary to his CAD, as service connection has not been established for a CAD, there is no legal basis upon which to award service connection on a secondary basis.  See 38 C.F.R. § 3.310.

In reaching the above conclusions, and in?accordance with Medlin, supra, the Board's decision included the following: 1. It addressed all legal authorities potentially applicable to the claims; 2. It analyzes the credibility and probative value of evidence; 3. It accounted for evidence that it found and unpersuasive; and 4. It provided reasons for rejecting any material evidence potentially favorable to the claimant. 

Also, in reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.? However, the most persuasive evidence weighs against the Veteran's claim.? As such, that doctrine is not applicable in the instant appeal, and the claim must be denied.? See 38?U.S.C. §?5107(b); See?Lynch, supra.??? 

Increased Rating

Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities,
 and probative value of evidence; 3. It accounted for evidence that it found and unpersuasive; and 4. It provided reasons for rejecting any material evidence potentially favorable to the claimant. 

Also, in reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.? However, the most persuasive evidence weighs against the Veteran's claim.? As such, that doctrine is not applicable in the instant appeal, and the claim must be denied.? See 38?U.S.C. §?5107(b); See?Lynch, supra.??? 

Increased Rating

Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4.  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating 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.  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009).  

The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology.

3. Entitlement to a rating higher than 10 percent for asbestosis prior to June 3, 2025, and a rating higher than 60 percent thereafter.

As a matter of procedural history, in a June 2025 decision, the Board denied the claim for an initial disability rating in excess of 10 percent for asbestosis.  On May 16, 2025, VA received a VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability.  Following a VA examination on June 3, 2025, a July 2025 rating decision increased the Veteran's disability rating for asbestosis to 60 percent disabling, with the AOJ interpreting the Veteran's May 16, 2025 TDIU application as an increased rating claim for his asbestosis.  

The Veteran's lung condition is rated under Diagnostic Code 6833.  Here, the Veteran's service-connected lung condition is rated as analogous to the General Rating Formula for Interstitial Lung Diseases.

Under the General Rating Formula for Interstitial?Lung?Disease provides for a?10 percent rating is granted for FVC of 75 to 80?percent predicted, or DLCO (SB) of 66 to 80?percent?predicted.  A 30?percent?rating is warranted for FVC of 65 to 74 percent predicted, or Diffusion Capacity of the DLCO (SB) of 56 to 65?percent predicted.  For a 60 percent?rating, the evidence must show 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.  Finally, a 100?percent?rating is assigned for FVC of less than 50-percent?predicted, 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 or pulmonary hypertension, or where outpatient oxygen therapy is required. Id. 

See?38 C.F.R. § 4.97, Diagnostic Code?6833.  Pulmonary function tests (PFTs) are required to evaluate asbestosis except 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, alternative criteria should be used.? 38 C.F.R. § 4.96
 less than 50-percent?predicted, 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 or pulmonary hypertension, or where outpatient oxygen therapy is required. Id. 

See?38 C.F.R. § 4.97, Diagnostic Code?6833.  Pulmonary function tests (PFTs) are required to evaluate asbestosis except 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, alternative criteria should be used.? 38 C.F.R. § 4.96 (d)(1)(i).  PFTs are also not used when pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed.? 38 C.F.R. § 4.96?(d)(1)(ii).  PFTs are also not used when there have been one or more episodes of acute respiratory failure or when outpatient oxygen therapy is required.? 38 C.F.R. § 4.96?(d)(1)(iii)-(iv). 

If the DLCO (SB) test is not of record, evaluation should be 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 the PFTs are not consistent with clinical findings, evaluation should be 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, 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). 

Finally, when there is a disparity between the results of different PFTs (Forced Expiratory Volume in the first second (FEV-1), FVC, etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflect the level of disability.? 38 C.F.R. § 4.96?(d)(6). 

In October 2024, the Veteran was afforded a VA examination.  The examiner noted the Veteran's asbestosis did not require the use of parenteral corticosteroid medications or oral bronchodilators, does not require use of inhaled medications, antibiotics, and oxygen therapy.  PFT results revealed pre-bronchodilator, FVC of 100 percent predicted and FEV-1/FVC of 98 percent, and; DLCO of 80 percent.  Post-bronchodilator results were not obtained, because the examiner noted the Veteran's pre-bronchodilator results were normal.

In June 2025, the Veteran attended a VA Respiratory Conditions examination.  The Veteran described inability to walk longer than 30-40 feet without becoming short of breath.  The examiner noted the Veteran's asbestosis did not require the use of parenteral corticosteroid medications or oral bronchodilators, does not require use of inhaled medications, antibiotics, and oxygen therapy.  Upon examination, PFTs were: pre-bronchodilator FVC 48% predicted, FEV-1 50% predicted, FEV-1/FVC 73%.  Post bronchodilator was FVC 57%, FEV-1 66%, and FEV-1/FVC 81%.  The examiner indicated FEV-1% predicted most accurately reflected the Veteran's level of disability.  There was no occupational impairment.

VA treatment records throughout the appeal reflect findings consistent with the VA examination reports, and nothing in these records show adverse symptomatology to be worse than what was reported by the above VA examiners.

In support of his claim, in September 2025, the Veteran submitted an opinion statement from Dr. Patel who
 pre-bronchodilator FVC 48% predicted, FEV-1 50% predicted, FEV-1/FVC 73%.  Post bronchodilator was FVC 57%, FEV-1 66%, and FEV-1/FVC 81%.  The examiner indicated FEV-1% predicted most accurately reflected the Veteran's level of disability.  There was no occupational impairment.

VA treatment records throughout the appeal reflect findings consistent with the VA examination reports, and nothing in these records show adverse symptomatology to be worse than what was reported by the above VA examiners.

In support of his claim, in September 2025, the Veteran submitted an opinion statement from Dr. Patel who apparently reviewed the June 2025 VA examination report and concluded that the Veteran's asbestosis met the criteria for a 100% evaluation under 38 C.F.R. § 4.97, Diagnostic Code 6833 because it showed FVC of 48% predicted which alone satisfied the schedular criteria for a total rating.  Notably, Dr. Patel's opinion report regarding the his interpretation of the VA examination findings read more like a legal brief in support of the Veteran's claim than a medical evaluation report.

Prior to June 3, 2025, weight of the evidence is not sufficient to meet the criteria for a disability rating in excess of 10 percent under Diagnostic Code 6833.  The evidence fails to show FVC of 65 to 74 percent predicted, or DLCO (SB) of 56 to 65?percent predicted.

From June 3, 2025, the evidence weighs against a rating higher than 60 percent.  While Dr. Patel argues that the criteria for a higher rating of 100 percent have been met because the FEVC score was 48% predicted.  As noted above, the regulations provide that when evaluating based on PFTs, VA must 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.  Such is not the case here as the post-bronchodilator FVC was 57% predicted.  Further, when there is disparity between the results of different PFTs so that the level of evaluation would differ depending on which test result is used, VA must use the test result that the examiner states most accurately reflects the level of disability.  As such, the Veteran is evaluated based on his post-bronchodilator FVC of 57% and FEV-1 of 66%, which corresponds to a 60 percent disability rating.

The Board acknowledges that the Veteran is competent to report his symptoms of shortness of breath; however, he is not competent to provide a probative opinion regarding the severity of his symptoms, including in relation to the applicable rating criteria that are based primarily instead on the results of objective clinical testing and evaluation (i.e., PFTs).  See Jandreau, 492 F.3d at 1377; Woehlaert v. Nicholson,?21?Vet. App.?456 (2007).  The Board affords these statements limited probative value. 

Accordingly, the Board finds that a?rating higher than 10 percent prior to June 3, 2025, and a rating higher than 60 percent thereafter, are not warranted for asbestosis.? Because the evidence is persuasively against the claim, the benefit-of-the-doubt doctrine is not for application.? 38 U.S.C. § 5107;?38 C.F.R. § 3.102.?

4. Entitlement to a TDIU.

The Veteran contends that his service-connected disabilities prevented him from securing and maintaining gainful employment. 

In terms of total disability ratings, if the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran has one service- connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). 

Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extraschedular consideration.

The
 one service- connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). 

Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extraschedular consideration.

The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough.  The assignment of a rating evaluation is itself recognition of industrial impairment.

During the period on appeal, service connection has been in effect for: 

"	Asbestosis, evaluated as 10% disabling prior to June 3, 2026, and 60% thereafter; 

"	Bilateral hearing loss, evaluated as 0% disabling;

"	Tinnitus, evaluated as 10% disabling; 

"	Pilonidal cyst, evaluated as 0% disabling; and

"	A scar, evaluated as 0% disabling.

Therefore, prior to June 3, 2025, the Veteran did not meet the percentage requirements for consideration of a TDIU on a schedular basis.  38 C.F.R. § 4.16 (a).  Since June 3, 2025, the Veteran met the schedular criteria for TDIU.  38 C.F.R. § 4.16. 

The question before the Board is whether the Veteran is unemployable by reason of his service-connected disabilities, taking into account his educational and occupational background.? 

The Board finds that the most persuasive evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities.??? 

In May 2025 the Veteran submitted a VA Form?21-8940, Application for Increased Compensation Based on Unemployability.? He asserted that his non service-connected CAD precluded his employment.? The Veteran reported last being employed part time as a delivery driver in September 2024.  

The evidence shows that prior to his most recent employment as a delivery driver for approximately six years, he was employed full time as a weighmaster in the melt department at a steel manufacturing plant for 33 years until he retired.  At a February 2025 Board hearing the Veteran described his work duties as supervising the work of others.  He testified that he would tell the cranemen, fork truck drivers and others the materials required to melt steel in a furnace.  The Veteran had attained one year of college.? 

Social Security Administration (SSA) records reflect that the Veteran was found to be disabled and unable to work in December 2006 due to posttraumatic stress disorder (PTSD), bilateral knee arthritis, and chronic neck and back pain. 

Crucially, the Veteran is not service connected for these problems.

It is important for the Veteran to understand that this evidence not only provides evidence against this claim, but also against the current finding of TDIU caused by a service connected disability.

While SSA findings are not binding on Board decisions, this fact only provides some evidence against this claim and will be addressed below.

Concerning the Veteran's service connected hearing loss and tinnitus, on VA examination in July 2021, the Veteran reported having to ask people to repeat themselves frequently on phone calls from work.  He also reported that tinnitus interfered with concentration and communication.  

In a February 2024 private medical statement, Dr. R.N. Phelps, a private orthopedic surgeon, opined that the Veteran opined would be unable to perform any gainful employment where satisfactory hearing is required, such as in noisy environments.  

Pertaining to the service connected asbestosis, on VA examination in October 2024, the Veteran reported dyspnea on exertion.  The examiner opined that the condition would result in zero to one week of lost time at work in a 12 month period.  On VA examination in June 2025, the Veteran reported that asbestosis was productive
 on phone calls from work.  He also reported that tinnitus interfered with concentration and communication.  

In a February 2024 private medical statement, Dr. R.N. Phelps, a private orthopedic surgeon, opined that the Veteran opined would be unable to perform any gainful employment where satisfactory hearing is required, such as in noisy environments.  

Pertaining to the service connected asbestosis, on VA examination in October 2024, the Veteran reported dyspnea on exertion.  The examiner opined that the condition would result in zero to one week of lost time at work in a 12 month period.  On VA examination in June 2025, the Veteran reported that asbestosis was productive of occupational impairment as he could not walk more than 30 to 40 feet without feeling out of breath.  No restrictions on prolonged walking or standing were reported.  

Treatment records from during the period on appeal do not document any functional impairment associated with the Veteran's service-connected scarring.

In support of his claim, the Veteran submitted a November 2025 vocational assessment report completed by a private vocational consultant, K. Mac Dillon.  The consultant opined, based on a review of the record and an interview with the Veteran, that his service-connected asbestosis had at least as likely as not rendered him unable to secure and follow substantially gainful employment, including unskilled sedentary employment, since at least August 2023.  

In formulating the opinion, the consultant referred to the Department of Labor's Dictionary of Occupational Titles (DOT) definition of sedentary employment as work exerting up to 10 pounds of force occasionally (up to one third of the time), and/or a negligible amount of force frequently (1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body.  According to DOT's definition, sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Id.  Jobs were sedentary if walking and standing were required only occasionally and all other sedentary criteria were met. Id.  The consultant concluded, it is unclear based on what evidence of record, that the Veteran's asbestosis, scar and/or hearing impairment precluded work which required prolonged sitting, standing and walking for up to 1/3 the duration of an eight-hour workday.

The consultant summarized the Veteran's occupational history and her phone interview with the Veteran, and provided a partial summary of the VA examination findings discussed above.  She found that the Veteran's service-connected disabilities would prevent the Veteran from any prolonged standing or walking, again, it is unclear on what evidence she reached this conclusion.  She also determined that the service connected disabilities precluded his ability to sustain adequate focus and attention, stay on-task, refrain from unscheduled breaks, keep a regular schedule, and meet production requirements.  Reportedly his shortness of breath, fatigue, low energy, dyspnea, and chronic sleep impairment with daytime fatigue, would cause him to become distracted from work throughout the day, leading to excessive time off task.  Specifically, the Veteran would likely be off-task in excess of 10 percent of the workday, and would be unable to maintain focus on work tasks for at least two consecutive hours, so as to preclude employment. 

Regarding the Veteran's education, training, skills, and work history, the Veteran earned some college credits and reported one year of college education, but did not earn a degree.  As for his occupational background, the consultant only discussed the Veteran's post-retirement parttime position as a delivery driver, ignoring his 33-year work history as weighmaster at a manufacturing plant, where he worked in a supervisory role.  She also reported that the Veteran lacked computer skills beyond basic operation of a smartphone, which is in fact a computer. 

The Board notes that determinations regarding employability are an issue reserved to the adjudicator based on a totality of the evidence and not any one opinion or assessment.

The Board has discussed above that consultant assessment and finds it is of little, if any, probative value.  It is evident that the consultant's findings relied heavily on the Veteran's subjective complaints.  Notably, the consultant stated that medical professionals were qualified to define the physical or mental limitations extending from a condition but had no expertise in translating this information into the degree of impact on the ability to work.  However, the consultant appears to personally ascribe occupational deficits based on physical limitations that are not supported by the evidence of record, such as limitations on prolonged sitting and standing, which have not been shown.  The consultant also ascribed mental limitations to the Veteran that were not indicated by a medical provider and have not been associated with any service connected disability, including chronic sleep impairment and daytime fatigue,
 is of little, if any, probative value.  It is evident that the consultant's findings relied heavily on the Veteran's subjective complaints.  Notably, the consultant stated that medical professionals were qualified to define the physical or mental limitations extending from a condition but had no expertise in translating this information into the degree of impact on the ability to work.  However, the consultant appears to personally ascribe occupational deficits based on physical limitations that are not supported by the evidence of record, such as limitations on prolonged sitting and standing, which have not been shown.  The consultant also ascribed mental limitations to the Veteran that were not indicated by a medical provider and have not been associated with any service connected disability, including chronic sleep impairment and daytime fatigue, or inability to learn new skills.  The consultant overlooked significant evidence that strongly contradicts her evaluation, such as the Veteran's significant 33-year occupational history in a supervisory position.  

To the extent the consultant indicated that the Veteran's service-connected disabilities were productive of other impairment, such as problems concentrating with inability to stay on task and/or learn new skills, the evidence weighs against a finding that the Veteran's symptoms hindered his ability to focus or learn, nor was service connection in effect for an acquired psychiatric disorder at that time.

Simply stated, the vocational consultant's opinion regarding the nature and severity of the Veteran's symptoms and their functional impact is afforded little probative value.  Overall, the opinion amounts to gross speculation based on highly limited data that does not support the findings.  It is perilously close to simple advocacy rather than an objective assessment and unbiased opinion.  The opinion is of nearly no probative value.

In sum, the Board finds that the Veteran's service-connected disabilities were productive of some occupational limitations, however, the most persuasive evidence weighs against finding that his service-connected disabilities either singularly or jointly, precluded the Veteran from gainful employment for which his education and occupational experience would otherwise qualify him, and collectively provided evidence against this finding.  Here the evidence throughout the appeal shows that the Veteran's dyspnea and auditory impairment certainly resulted in some social and occupational impairment, however, it appears that the Veteran's inability to secure or maintain employment was due to independent factors such as the Veteran's nonservice connected disabilities.  This evidence indicates only moderate intermittent symptoms impacting his employability since his most recent full-time employment following his retirement after 33 years of working in the same industry with the same employer.  Simply stated, the employment record is found by the Board to provide evidence of some value against this claim.  

Based on the above assessment of the Veteran's physical and mental abilities with consideration of his education, skills, and work history, the Board finds that the Veteran is capable of work that would result in income at the level of substantially gainful employment.  For example, the evidence is against a finding that the Veteran's service-connected disabilities would preclude him from jobs that involve data entry.  With data entry, the Veteran is primarily responsible for entering data into a system.  These jobs can usually be done from home without significant training or experience and can be performed while seated.  Additionally, the Veteran could perform certain cashier positions, or work as a library, theater, or museum attendant, positions that would not be physically demanding, and would allow the Veteran to sit or stand as needed.  The Veteran could also be a parking lot or toll booth attendant, which jobs would entail activities such as collecting payment, and providing customers with instructions for parking and locating vehicles, which would be sedentary in nature and allow the Veteran to sit or stand as needed.  

With reasonable accommodations, the service connected asbestosis, hearing loss and tinnitus would not preclude employment.  Finally, as noted, his scar was not shown to be productive of occupational impairment.

While the SSA found the Veteran disabled, an SSA award is not controlling as to his TDIU claim.  SSA benefits are based on different criteria than are VA disability benefits.  Moreover, while the Veteran has been found to be disabled by the SSA, it was based solely on his non service-connected disabilities.  Overall, the finding provides evidence against this claim as it indicates multiple nonservice-connected problems are, in part, the cause of the issue.

In sum, the evidence indicates that the Veteran has the ability to perform the activities required for gainful employment consistent with his educational background and substantial work history.  Even though he has some limitations impacting his employability, the limitations primarily arose from his nonservice-connected disabilities.

The Board has reviewed this case in great detail.  Nothing above should be viewed as an indication that the Veteran does not have many problems with his service-connected disabilities.  If he did not, there would be no basis for the currently assigned substantial disability evaluations.  The question is without taking into consideration the Veteran's nonservice-connected problems and his age, could the Veteran work.  In this case
 multiple nonservice-connected problems are, in part, the cause of the issue.

In sum, the evidence indicates that the Veteran has the ability to perform the activities required for gainful employment consistent with his educational background and substantial work history.  Even though he has some limitations impacting his employability, the limitations primarily arose from his nonservice-connected disabilities.

The Board has reviewed this case in great detail.  Nothing above should be viewed as an indication that the Veteran does not have many problems with his service-connected disabilities.  If he did not, there would be no basis for the currently assigned substantial disability evaluations.  The question is without taking into consideration the Veteran's nonservice-connected problems and his age, could the Veteran work.  In this case, the Veteran's history of productive work that ended due to retirement due to a nonservice connected disability cannot be ignored.  The weight of the evidence of record does not contradict the findings of the Veteran's VA examiners.  In this regard, it is important for the Veteran to understand that there is now a highly significant amount of highly probative medical evidence that weighs against this claim. 

The Board acknowledges statements from the Veteran addressing the impact of his service-connected disabilities on his ability to work during the period of the appeal.  Again, no one is suggesting the Veteran's service-connected disabilities do not cause the Veteran many problems.  While the Veteran is competent to report symptoms he experiences, an opinion as to the limitations on gainful employment due to his service-connected disabilities (and not his age or nonservice-connected problems, which the record clearly indicates is a factor in this case) is beyond his medical expertise.  See Jandreau, supra.  Thus, any such lay statements regarding him being unable to work are not competent or sufficient.  Simply stated, both the best factual evidence, including occupational history reported by the Veteran himself, and the best medical evidence, in the form of the examinations cited above, provides evidence against this claim. 

In this case, there is no indication from the record that the Veteran was unable to obtain and maintain substantially gainful employment solely as a result of his service-connected disabilities, either singularly or jointly, at any time during the period on appeal.

In conclusion, the Board finds that referral of this issue for extraschedular consideration of TDIU pursuant to 38 C.F.R. § 4.16 (b) prior to June 3, 2025, is not appropriate, and that a TDIU is not warranted.  The Board further finds that the evidence does not support the Veteran's eligibility for TDIU on a schedular basis from June 3, 2025.  38 C.F.R. § 4.16 (a).

As the most persuasive evidence weighs against the claim for entitlement to a TDIU, the benefit of the doubt rule is not for application, and the claim must be denied.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

 

 

Paul R. Casey

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Azizi, T.

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.