ASBESTOSIS

Summary

The veteran, who served from August 1968 to May 1970, appeals the denial of an increased disability rating for his service-connected asbestosis and entitlement to TDIU. The veteran sought a 100 percent disability rating for asbestosis, contending his condition warranted this higher rating prior to January 16, 2026. The Board reviewed evidence from a March 2025 VA examination and a May 2025 private Pulmonary Function Test (PFT). The VA exam showed a post-bronchodilator Forced Vital Capacity (FVC) of 51 percent predicted, while the private PFT showed a post-bronchodilator FVC of 18 percent predicted. The Board found the evidence in approximate balance regarding the veteran's FVC level, applying the benefit of the doubt to the veteran. Consequently, the Board found the veteran's FVC was below 50 percent predicted for the appeal period, granting a 100 percent disability rating for asbestosis from December 2, 2024, to January 16, 2026. Due to this 100 percent rating, the claim for TDIU was dismissed as moot. Service connection for asbestosis is granted at 100 percent for the specified period.

Rationale

Evidence in approximate balance regarding FVC below 50 percent predicted; Benefit of the doubt applied in favor of the veteran; Grant of 100% rating based on FVC below 50 percent predicted

Full Decision Text

Citation Nr: A26040277
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 260317-638445
DATE: April 29, 2026

ISSUES

1. Entitlement to a disability rating in excess of 60 percent prior to January 16, 2026 for service-connected asbestosis.

2. Entitlement to total disability due to individual unemployability (TDIU).

ORDER

Entitlement to a disability rating of 100 percent from December 2, 2024 to January 16, 2026 for service-connected asbestosis is granted.

Entitlement to TDIU is dismissed as moot. 

FINDINGS OF FACT

1. The evidence is in approximate balance that throughout the period on appeal the Veteran's asbestosis resulted in Forced Vital Capacity (FVC) of less than 50 percent.

2. The grant herein of a 100 percent disability rating for service-connected asbestosis effectively renders the issue of entitlement to TDIU moot.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an increased disability rating of 100 percent from December 2, 2024 to January 16, 2026 for service-connected asbestosis have been met or approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6833.

2. The issue of entitlement to TDIU is moot. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16.  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1968 to May 1970.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2026 rating decision by a Department of Veteran's Affairs (VA) regional office (RO), which is the agency of original jurisdiction (AOJ).  

By way of background, following the filing of a December 2, 2024 Intent to File (ITF) form, a March 2025 VA Form 21-526EZ for an increased disability rating, and a May 2025 rating decision in which the AOJ continued the noncompensable disability rating for asbestosis, the Veteran filed an August 2025 VA Form 20-0996 Higher-Level Review (HLR) request which resulted in a December 2025 rating decision (January 2026 notification) in which the AOJ granted an increased disability rating of 60 percent with an effective date of December 2, 2024. 

The Veteran then filed a January 2026 VA Form 20-0995 Supplemental claim (supplemental claim), a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability (VA Form 8940), and a VA Form 21-4138 Statement in Support of Claim. 

Interpreting the January 2026 filings as a new increased disability rating claim, in a March 2026 rating decision the AOJ granted an increased disability rating of 100 percent from January 16, 2026 for the Veteran's asbestosis and denied entitlement to TDIU as moot. The Veteran then filed a timely March 2026 VA Form 10182, Decision Review Request: Board Appeal, Notice of Disagreement (VA Form 10182), appealing the December 2025 rating decision as well as the March 2026 rating decision, and selecting the Direct Review docket.

As to the rating decision on appeal, the Board notes that although the Veteran's appeal is timely to both the December 2025 and March 2026 rating decisions, in the best interest of the Veteran the Board will consider the later March 2026 rating decision as the decision on appeal here, to allow any additional evidence to be considered. In this regard, the Board acknowledges the holding in Terry but distinguishes the present case in that both the December 2025 and March 2026 rating decisions were decided on the merits. See Terry v. McDonough, 37 Vet. App. 1, 12-13 (2023).

Therefore, because the Veteran selected the Direct Review docket the Board may only consider the evidence of record at the time of the March 2026 rating decision. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence
 Board acknowledges the holding in Terry but distinguishes the present case in that both the December 2025 and March 2026 rating decisions were decided on the merits. See Terry v. McDonough, 37 Vet. App. 1, 12-13 (2023).

Therefore, because the Veteran selected the Direct Review docket the Board may only consider the evidence of record at the time of the March 2026 rating decision. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a supplemental claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board notes that although the Veteran did not specifically appeal the denial of entitlement to TDIU, a claim for entitlement to a TDIU is considered part and parcel of the Veteran's claim for an increased rating for his service-connected asbestosis. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the Board has jurisdiction of that issue on appeal.  

The Board also notes that this decision is being issued prior to the expiration of the period during which the Veteran may elect to switch dockets. See Williams v. McDonough, 37 Vet. App. 305 (2024). However, in the March 2026 VA Form 10182 the Veteran's attorney waived the right to switch dockets, thus allowing the Board to proceed with adjudication of the claim.

1. Entitlement to a disability rating in excess of 60 percent prior to January 16, 2026 for service-connected asbestosis. 

The Veteran claims entitlement to a disability rating in excess of 60 percent prior to January 16, 2026 for his service-connected asbestosis. Specifically, he contends that his disability warrants a 100 percent disability rating prior to the January 16, 2026 date assigned by the AOJ, and that the present claim has been continuously pursued since December 2024. See March 2026 VA Form 10182.

As to continuous pursuit and the proper appeal period, following a February 2020 rating decision in which the AOJ granted service connection for asbestosis, as noted above on December 2, 2024 VA received the Veteran's ITF form. This was followed within a year by a March 2025 VA Form 21-526EZ increased rating claim. Within a year of a May 2025 rating decision the Veteran filed an August 2025 HLR request. Within a year of the December 2025 rating decision the Veteran filed a January 2026 supplemental claim (as well as a VA Form 8940). And although the AOJ interpreted this filing as a new increased disability rating claim rather than a claim appealing the December 2025 rating decision's assigned disability rating as clearly stated in the supplemental claim, the supplemental claim in and of itself, as well as the VA Form 8940 under Chisholm, should have been considered timely for continuity purposes by satisfying the definitional elements of 38 U.S.C. § 101(36), including the submittal of new and relevant evidence. See Chisholm v. Collins, 38 Vet. App. 140 (2025) (a claim on any prescribed form may be a supplemental claim so long as it meets the other elements of a supplemental claim.)   

And finally, within a year of the March 2026 rating decision the Veteran filed a March 2026 VA Form 10182. Thus, the Veteran has continuously pursued his increased disability claim for asbestosis back to the filing of the December 2, 2024 ITF form. Therefore, the period on appeal for the Veteran's increased disability claim begins with the Veteran's filed December 2, 2024 ITF form. And, as the Veteran's claim is one for an increased disability rating, the Board may also evaluate evidence during the period one-year prior. 38 C.F.R. § 3.400(o)(2). 

To that end, disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service
 2024 ITF form. Therefore, the period on appeal for the Veteran's increased disability claim begins with the Veteran's filed December 2, 2024 ITF form. And, as the Veteran's claim is one for an increased disability rating, the Board may also evaluate evidence during the period one-year prior. 38 C.F.R. § 3.400(o)(2). 

To that end, disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (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 the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Pulmonary Function Test (PFT) results are generally reported before and after the administration of bronchodilator therapy. VA regulations require the use of post-bronchodilator results in determining disability ratings for DC 6600, 6603, 6604, 6825-6833, and 6840-6845, unless post-bronchodilator results are poorer than pre-bronchodilator results. 38 C.F.R. § 4.96(d)(4).

The special provisions also note that when there is a disparity between the results of different PFTs such that the evaluation would be different depending on which test was used, use the test result that the examiner states most accurately reflect the level of disability. 38 C.F.R. § 4.96(d)(6).

The Veteran's service-connected asbestosis is evaluated under Diagnostic Code 6833, which uses the General Rating Formula for Interstitial Lung Disease. Under this formula, a 60 percent rating is warranted for  FVC of 50 to 64 percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 40 to 55 percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation; and a 100 percent rating is warranted for FVC less than 50 percent predicted, or; DLCO 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; requiring outpatient oxygen therapy. 38 C.F.R. § 4.97.

In a March 2025 VA Respiratory Conditions examination, after confirming the diagnosis of asbestosis, the examiner noted the Veteran's pre-bronchodilator FVC at 61 percent predicted and post-bronchodilator at 51 percent predicted, opining that FVC percentage predicted was the test that most accurately reflected the Veteran's level of disability. Although the examiner noted March 2018 as the date of test, it appears that the PFT was completed on March 18, 2025. There is no evidence that the examiner was not competent or credible, and as the report is based on the physical examination, test results, and the examiner's observations, the Board finds it entitled to significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008).

A May 2025 private PFT recorded the Veteran's pre-bronchodilator FVC at 26 percent predicted and post-bronchodilator at 18 percent predicted. As to DLCO and TLC testing, the clinician noted the Veteran was unable to complete either due to breathing difficulties. As above, there is no evidence that the clinician was not competent or credible, and therefore the Board finds the PFT is entitled to significant probative value as to FVC testing alone. Id.

Given the above probative evidence, namely the March 2025 VA examination  noting the Veteran's pre-bronchodilator FVC at 61 percent predicted and post-bronchodilator at 51 percent predicted, and a May 2025 private PFT pre-bronchodil
ator FVC at 26 percent predicted and post-bronchodilator at 18 percent predicted. As to DLCO and TLC testing, the clinician noted the Veteran was unable to complete either due to breathing difficulties. As above, there is no evidence that the clinician was not competent or credible, and therefore the Board finds the PFT is entitled to significant probative value as to FVC testing alone. Id.

Given the above probative evidence, namely the March 2025 VA examination  noting the Veteran's pre-bronchodilator FVC at 61 percent predicted and post-bronchodilator at 51 percent predicted, and a May 2025 private PFT pre-bronchodilator FVC at 26 percent predicted and post-bronchodilator at 18 percent predicted, and the temporal proximity between the two PFTs, the Board finds that the evidence is in approximate balance as to whether the severity of the Veteran's disability more closely reflects a FVC below 50 percent predicted from December 2, 2024 to January 16, 2026. 

As such, affording the benefit of the doubt to the Veteran, the Board finds that for the entire appeal period the Veteran's FVC was below 50 percent predicted, reflective of the 100 percent disability rating criteria. Therefore, entitlement to a disability rating of 100 percent from December 2, 2024, but no earlier, to January 16, 2026 for service-connected asbestosis is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). Lynch. 

Lastly, the Board has considered whether it was factually ascertainable that the  Veteran's asbestosis disability had worsened within the year prior to the date the Veteran's submitted his increased rating claim but finds that there is no evidence of record reflecting worsening within the year prior to the date of the claim.  

2. Entitlement to TDIU.

The Veteran claims entitlement to TDIU as due to his service-connected asbestosis. See January 2026 VA Form 8940.

As discussed in the previous section, the Veteran has been awarded a 100 percent disability rating for his service-connected asbestosis for the entirety of the appeal period and the Rice TDIU claim before the Board is only with respect to an inability to secure or follow substantially gainful occupation due to his service-connected asbestosis. Thus, the Veteran's TDIU claim must be dismissed as moot. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008); Rice, 22 Vet. App. at 453-54. 

 

 

Michale A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Matthew Leahy, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.