Citation Nr: 1708994 Decision Date: 03/23/17 Archive Date: 04/07/17 DOCKET NO. 08-06 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for histoplasma granuloma and residuals from a lower left lung lobectomy. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Saindon, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1970 and from April 1971 to April 1988. The matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board previously remanded the issues in November 2010 and August 2013 for further development. In August 2009, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence of record is against a finding that the Veteran's histoplasma granuloma and residuals from a lower left lung lobectomy were incurred in or related to active service. 2. The evidence demonstrates that the Veteran's service-connected disabilities combine to a 20 percent rating and do not render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for histoplasma granuloma and residuals from a lower left lung lobectomy have not been met. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 2. The criteria for entitlement to TDIU are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.156. The duty to notify has been met. See April 2007, May 2008, & September 2013 VA correspondence and August 2009 Travel Board hearing transcript. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Circuit Court of Appeals has held that "absent extraordinary circumstances . . . it is appropriate for the Board . . . to address only those procedural arguments specifically raised by the veteran . . . ." Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), & (d). As pertinent to the claims at issue, the Veteran's relevant service and post-service medical records have been obtained and associated with the evidence. The Veteran and his representative have not indicated that there is any outstanding evidence to submit. The Veteran underwent VA examinations in December 2010, April 2014, and February 2015 and obtained VA opinions dated November 2015 and March 2016. The examinations and opinions provide a description of the Veteran's symptoms and describe the functional extent of his disabilities. They also discuss the etiology of the Veteran's lung disability as it relates to service and provide reasons and bases for their conclusions. The VA examinations and opinions, read together and in the totality, are deemed adequate for adjudication purposes with respect to the matters on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board remanded this claim in August 2013 in order to obtain a VA opinion regarding the Veteran's lung condition and to readjudicate the TDIU issue. The RO obtained the VA opinions in December 2015 and March 2016 in compliance with this remand. As discussed above, these opinions are adequate for adjudication purposes. The Veteran's representative also stated in a May 2016 statement that "the AOJ has complied with the Board's Remand directives." The Board is satisfied that the RO has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Based on the foregoing, the VA has fulfilled its duties to notify and to assist the Veteran in the evidentiary development of the claims decided herein and no additional assistance or notification is required. Having been provided with adequate opportunity to submit or otherwise identify relevant evidence in support of his claim, the record does not need to be held open any longer, and no further delay in the adjudication of this appeal is warranted. The Veteran has suffered no prejudice that would warrant a remand and his procedural rights have not been abridged. In addition, other than those addressed above, the Veteran has not argued that any procedural defects have occurred. See Scott, 789 F.3d at 1381. The Board will therefore proceed with the adjudication of this appeal. II. Service Connection The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide the reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000) ("Specifically, we reject the view that all evidence must be discussed."). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Board must consider the competency, credibility, and weight of all evidence, including the medical evidence, to determine its probative value. The Board must then account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) ("Our case law requires only that the Board address its reasons for rejecting evidence that is favorable to the veteran."). Equal weight is not accorded to each piece of evidence contained in the records and every item of evidence does not have the same probative value. If the evidence weighs in favor of the Veteran or is in relative equipoise, the Veteran will prevail. On the other hand, if the preponderance of the evidence is against the Veteran the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). The Veteran's personnel records show that he served in Vietnam and it is presumed that he was exposed to Agent Orange under 38 U.S.C.A. § 1116. In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Neither histoplasmosis nor histoplasma granuloma are conditions enumerated in 38 C.F.R. § 3.309(e). Accordingly, presumptive service connection cannot be established. Notwithstanding the provisions of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309(e), a claimant is not precluded from establishing service connection with proof of actual causation, that is proof the exposure to Agent Orange actually causes histoplasma granuloma. See 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). No such evidence (lay or medical) has been provided. Consideration of the Veteran's claim does not stop there, however. There are additional theories of entitlement that must be addressed. Around December 2005, the Veteran's doctors detected nodules in the Veteran's lower left lung. Surgeons removed the Veteran's lower left lung in a lobectomy in March 2006 and the results were sent to biopsy. The biopsy diagnosed histoplasma granuloma with no evidence of malignancy. The Veteran was treated with antifungal medication post-surgery and discharged. Post-surgical treatment records dated March 2006 stated "given the epidemiology of this case, the pulmonary histoplasmosis is acute." At the December 2010 VA examination, the Veteran was diagnosed with histoplasma granuloma causing lack of stamina and weakness or fatigue. The April 2014 VA examination contained the same diagnosis and stated that the condition "limits prolonged walking over 1/2 mile - able to do sit down work." The examination also notes that the Veteran exercised daily at the mall with his wife, walked daily outside, and was able to mow the lawn. Although the Veteran stated that he believed his regular or over-exposure to jet fuel in service caused his lung condition, a November 2015 VA examiner opined that "the patient's histoplasma granuloma is less likely than not to be related to the military based on his exposure to jet fuel." The Veteran's histoplasmosis, the examiner explained, "can be due to breathing spores from the soil in the southern part of the United States." The examiner looked for and was unable to find reference to histoplasma or histoplasmosis due to exposure to jet fuel. The 2006 treatment records corroborate a spore-based infection route as the Veteran was treated with an anti-fungal agent. The Veteran did report shortness of breath during and after service. For example an April 1984 emergency care and treatment record noted a "[history] of trouble breathing, possible [diagnosis] of asthma." As stated in the March 2016 examiner opinion, however, "histoplasma granuloma does not [typically] cause one to be short of breath." Instead the examiner opined that "[i]t is my opinion that the patient's shortness of breath and chest pain were most likely activity related." The Veteran is acknowledged to be competent to observe and report symptoms, such as shortness of breath. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The connection between the Veteran's in-service shortness of breath and jet fuel exposure to the later histoplasma granuloma, however, is not amenable to lay comment. As the Veteran does not appear to have specialized medical knowledge he is not deemed competent to make an etiological opinion. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) ("[t]he Board is not required to accept all lay statements as definitive proof of a service-connection claim"). Even assuming that the Veteran was competent, however, the Board attributes greater weight to the November 2015 and March 2016 examiner's opinions. The 2015 and 2016 examiner possessed specialized medical knowledge and importantly provided rationale for his conclusion based on the contemporaneous knowledge of the etiology of histoplasmosis. The Veteran did not. With regard to chronicity, it is acknowledged that the 2015 and 2016 examiner could not determine without resort to speculation whether the Veteran breathed the spores that resulted in his histoplasma granuloma "before, during, or after the military." Generally, the Board cannot rely on an examiner's conclusion that an opinion would be speculative unless there is an explanation for such opinion. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). However, without delving further as to whether these opinions are adequate with respect to the chronicity question, the Board's attention is drawn to the post-surgical medical notes from March 2006, which clearly categorizes the Veteran's histoplasma granuloma as "acute" rather than chronic. The examining doctor in 2006 had direct access to the symptomatic patient and the diseased tissue. On that basis the Board affords the 2006 opinion/conclusion more weight and concludes that the disease was not chronic. The weight of the evidence is therefore against a finding that the Veteran incurred histoplasmosis during service more than 15 years prior. As there is no evidence of histoplasmosis during service, as histoplasmosis does not typically cause the Veteran's observed shortness of breath, and as the Veteran did not have acute histoplasma granuloma until more than 15 years after service, the Board finds that the totality of the evidence fails to establish that the Veteran's lung condition was incurred in or related to service. Direct service connection for histoplasma granuloma and resultant residuals from a lower left lung lobectomy cannot be established. As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service connection for histoplasma granuloma and residuals from the lower left lung lobectomy to remove the granuloma must therefore be denied. II. TDIU VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: (1) if there is only one such disability, the disability shall be ratable at 60 percent or more, or (2) if there are two or more service-connected disabilities at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is rated at 20 percent for two foot related disabilities that were rated in the August 2013 Board decision. He is not service connected for any other disability. A 20 percent rating does not satisfy the schedular requirement for TDIU. Schedular TDIU must therefore be denied. An extraschedular total rating based on individual unemployability may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment." Id. "TDIU is to be awarded based on the 'judgment of the rating agency' . . . ." Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran has not submitted any medical opinion regarding an inability to sustain substantial gainful employment. The RO obtained a VA opinion in February 2015 that opined that "I do not believe this patient is individual[ly] unemployable." The examiner based this assessment on the Veteran's "Primary Care visit in February of 2015" in which the Veteran was "able to ambulate and perform all activities of daily living independently. Muscle strength appears to be adequate to perform both sedentary and some physical activity." The examiner also noted that the Veteran "retired in 2005 due to age and duration of employment." The Board acknowledges that the Veteran has a long history of foot pain and interference with some daily activities. Although they are serious problems, pain and interference with some activities do not amount to a total occupational impairment. The Veteran worked for almost two decades after service before retiring. And while the Veteran is advanced of age, age cannot be considered as a factor for TDIU. 38 C.F.R. § 3.341(a). The weight of the evidence--including the Veteran's employment history, the February 2015 VA opinion, and the previous VA examinations of the Veteran's feet--supports a finding that the Veteran is not unemployable. As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. TDIU must therefore be denied. ORDER Entitlement to service connection for histoplasma granuloma and residuals from a lower left lung lobectomy is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs