Citation Nr: 1804146	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  10-13 644	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for a digestive disability (other than irritable bowel syndrome (IBS)) to include gastroesophageal reflux disease (GERD), hiatal hernia, esophageal stricture, esophageal spasm, and duodenal ulcer, also claimed as secondary to service-connected adjustment disorder. 

2.  Entitlement to service connection for asthma. 

3.  Entitlement to service connection for pulmonary disabilities (other than asthma) to include lung damage, restrictive lung disease, pneumonia, and pleural effusion, also claimed as secondary to service-connected adjustment disorder and gastrointestinal disorders.

4.  Entitlement to service connection for bilateral hearing loss. 

5.  Entitlement to service connection for a right shoulder disability.

6.  Entitlement to a total disability rating based on individual unemployability (TDIU). 
REPRESENTATION

The Veteran represented by:  Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

N. Robinson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1982 to May 1986 in the United States Air Force.  These matters are before the Board of Veterans' Appeals (Board) on appeal from January and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.
 
In the March 2010 substantive appeal, the Veteran requested a Board hearing.  That hearing was held in March 2013 by a Veterans Law Judge (VLJ) no longer with the Board.  In June 2017, the Veteran declined an additional Board hearing.  38 U.S.C. § 7107(c); 38 C.F.R. § 20.707.  A transcript of the March 2013 hearing is associated with the record and has been reviewed by the undersigned.

In an August 2014 decision, the Board reopened the issues of entitlement to service connection for a digestive disorder and a pulmonary disorder and remanded the issues of service connection for those claims and for the remaining claims on appeal for additional development.   

To afford the Veteran the most sympathetic review, the Board will construe his claim for service connection for a pulmonary disability broadly as separate claims for asthma (which the Board is granting here) and for additional pulmonary disabilities to include lung damage (to include restrictive lung disease), pleural effusions, and pneumonia (which the Board is remanding).  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the Board must consider any disability that "may reasonably be encompassed by" the claimant's description of the claim and symptoms, and other submitted information).

The issues of entitlement to service connection for bilateral hearing loss, pulmonary disorders (excluding asthma), and digestive disorders are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Resolving reasonable doubt in his favor, the Veteran's asthma was incurred during active service.  

2.  Resolving reasonable doubt in his favor, the Veteran's right shoulder disability was incurred during active service.  

3.  The Veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment.


CONCLUSIONS OF LAW

1.  The criteria for service connection for asthma have been met.  38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017).

2.  The criteria for service connection for a right shoulder disability have been met.  38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017).

3.  The criteria for entitlement to TDIU have been met during the entire period on appeal.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Because the benefits sought and adjudicated herein are being granted, there is no reason to belabor the impact of the VCAA on these matters; any notice error or duty to assist omission is harmless. 

Legal Criteria: Service Connection 

To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Service connection may be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service.  38 U.S.C. §§ 110, 1112; 38 C.F.R. §§ 3.307, 3.309.  Entitlement to service connection on the basis of a continuity of symptoms after discharge under 38 C.F.R. § 3.303(b) is also available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).

Further, service connection may be warranted for disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310 (a).  Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998).


I.  Asthma 

The Veteran is claiming service connection for asthma.  His service treatment records (STRs) show hospitalization for pneumonia, breathing difficulties, bronchitis, and asthma/reactive airway disease. 

During his October 2008 VA examination, the Veteran reported being diagnosed with asthma after developing a persistent lung infection during active service.  The examiner noted decreased breath sounds on physical examination and negative results of a methacholine challenge test.  Overall, the examiner concluded that no lung condition was present. 
   
The April 2015 VA examiner opined that the Veteran has reactive airway disease/mild asthma.  He stated that this opinion was not certain; however, based on his review of the Veteran's STRs, including progress notes and consultations documenting wheezing, post-service medical records noting asthma, and high pitched rhonchi and wheezing on physical examination, he concluded that it is at least as likely as not that the Veteran has reactive airway disease (mild asthma) dating back to his military service, despite non-confirmatory pulmonary function studies.

The RO then obtained another nexus opinion from a different physician.  In a January 2016 opinion, this examiner stated that, based on her review of the Veteran's medical records, it does not appear that he has asthma. 

After a careful review of the April 2015 examination report and the January 2016 medical opinion, as well as the other relevant evidence of record, the Board finds that the evidence reasonably shows that the Veteran has a current diagnosis of asthma that was incurred in service and has continued through present.  In reaching this conclusion, the Board weighed the two nexus opinions summarized above.  The Board assigns more probative weight to the positive opinion because it is accompanied by a detailed rationale and was provided by a physician who personally interviewed and examined the Veteran.  See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (VA examination report "must be read as a whole" to determine the examiner's rationale).  Because the probative evidence of record is positive as to incurrence of the Veteran's asthma during service, service connection is warranted, and the claim is granted in full.

II.  Right Shoulder Disability 

During his October 2008 VA examination, the Veteran reported he was lifting equipment in 1984 or 1985 while on active duty when something in his right shoulder popped or pulled loose.  He was treated with Tylenol and physical therapy.  He denied any subsequent shoulder injuries.  He reported continuing symptoms of burning pain in his right shoulder.  The examiner described the Veteran's shoulder condition as "arthralgia" (joint pain) with limited range of motion and crepitus.  Arthritis was not seen on x-ray.  The examiner opined that the Veteran's right shoulder injury would severely affect daily activities including chores, shopping, exercise, sports, and recreation.   

During his March 2013 Board hearing, the Veteran testified that he injured his right shoulder lifting heavy equipment during active service.  He testified that he has experienced the exact same type of pain and stiffness since this injury through present, and that these symptoms have never improved, but rather worsened over time.   

In August 2014, the Board remanded this issue to obtain an updated VA examination. During his April 2015 VA examination, the Veteran reported injuring his right shoulder while unloading a signal generator in 1984.  He was evaluated and diagnosed with bursitis.  He reported recurrent symptoms including continued pain in his right shoulder.  On examination, rotator cuff testing was positive.  The examiner noted that the Veteran was diagnosed with right shoulder bursitis in 1984 during service.  She stated that the Veteran cannot lift or carry more than 10 lb. with his right arm.  The examiner stated that the Veteran "may have a condition beyond bursitis at this point, but no additional diagnosis has been made."  She noted that his post-service occupation might have caused a shoulder condition.  She added that she did not have sufficient evidence to conclude that the Veteran's in-service shoulder injury is related to his current shoulder condition.  

October 2015 VA treatment records show current right shoulder diagnoses of bursitis and tendinopathy.  

After a careful review of the evidence, the Board finds that it is at least as likely as not that the Veteran's incurred his right shoulder disability during active service.  The Board finds the Veteran's statements and testimony describing his initial in-service injury and continued right shoulder symptoms competent, credible, and highly probative of the fact that these symptoms started in service and continued through present.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The VA examiners' opinions discussed above cannot be assigned significant probative weight because they did not clearly identify a current diagnosis (which is established via MRI and associated VA treatment records), and did not consider the Veteran's full description of his in-service right shoulder injury or his report of continuing right shoulder symptoms.  Because the probative evidence of record is positive as to incurrence of a right shoulder disability during service, service connection is warranted, and the claim is granted in full.

III. TDIU 

To establish entitlement to TDIU, there must be impairment so severe that it is impossible for the Veteran to follow a substantially gainful occupation.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  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 (1993).  Consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 

A veteran is eligible for a schedular rating of TDIU if either one service-connected disability is rated at least 60 percent or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more).  38 C.F.R. § 4.16(a).  Where the schedular criteria are not met, an extraschedular rating may be considered.  38 C.F.R. § 4.16(b).

In this case, the Veteran meets the schedular criteria for TDIU (a combined 70 percent evaluation, with his psychiatric disorder rated as 50 percent disabling), and he has provided competent and credible reports that his psychiatric, IBS, right shoulder, and pulmonary disabilities prevent him from obtaining and maintaining substantially gainful employment.  Eligibility for TDIU is supported by the evidence showing that he has not worked full time, his part-time employment was not substantially gainful and considered protected, and that he has significant functional limitations due his psychiatric, IBS, and right shoulder disabilities as noted on the VA examination reports and treatment records.  Although examiners opined that the Veteran could be employed with some limitations, the examiners did not consider the total impact of his disabilities and his resulting clinical picture on his employment prospects; but rather, they each opined regarding the impact of a single disability.  In contrast, the Veteran has provided competent and credible evidence that the total impact of his psychiatric, right shoulder, pulmonary, and IBS disabilities prevents him from maintaining "substantially gainful" employment. Accordingly, the Board finds that entitlement to TDIU is warranted, and the claim is granted in full.  


ORDER

Service connection for asthma is granted. 

Service connection for a right shoulder disability is granted.

Entitlement to TDIU is granted.  





REMAND

The Board sincerely regrets the additional delay and is cognizant of the fact that these claims already have been remanded in years past.  Therefore, the Board wishes to assure the Veteran that it would not be remanding these claims again unless it was essential for a full and fair adjudication.  See, e.g., Ascherl v. Brown, 4 Vet. App. 371, 377 (1993) (Where the record before the Board is inadequate, a Remand is mandatory rather than permissive.).

Bilateral hearing loss

The Veteran is claiming entitlement to service connection for bilateral hearing loss.  His current bilateral hearing loss is established by the March 2015 examination report; however, the examiner opined that this disability is not related to the Veteran's service because he had normal hearing at enlistment and separation with no change between those examinations.  This statement is seemingly based on incorrect information in that the Veteran's February 1985 audiogram does note a threshold shift from his January 1982 audiogram.  Furthermore, the U.S. Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385  does not preclude an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even when hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).   Finally, the examiner does not appear to take into consideration the Veteran's report of in-service noise exposure.  Because the opinion is inadequate, the claim must be again remanded for a supplemental opinion.

Pulmonary Disabilities 

As noted above, the Board is granting service connection for asthma.  The Veteran also claimed service connection for pneumonia, pleural effusions, and lung damage/restrictive lung disease.  Because the evidence of record is inadequate to fairly adjudicate the claim, a remand is necessary to obtain a new medical opinion or examination if necessary.  See Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (2007) (explaining that an adequate medical opinion must provide "such sufficient information that it does not require the Board to exercise independent medical judgment").

Digestive Disabilities 

The Veteran is claiming service connection for digestive disabilities (other than already service-connected IBS) to include GERD, esophageal stricture, esophageal spasm, hiatal hernia, and a duodenal ulcer, and is also claiming entitlement as secondary to his service-connected adjustment disorder.  During his March 2013 Board hearing, the Veteran testified that he developed a variety of gastrointestinal (GI) symptoms during service.  The Air Force had sent him to Indiana for a detailed GI evaluation.  He emphasized that these same symptoms have continued from service to present.   

During his April 2015 VA examination, the Veteran reported symptoms of dysphagia and acid reflux since active service.  He reported pain associated with these symptoms impacted his ability to work.  The examiner reported the Veteran's GI diagnoses as GERD, hiatal hernia, esophageal stricture, and esophageal spasm.  The examiner also noted a 2006 diagnosis of duodenal ulcer.  The examiner stated that these conditions were less likely than not incurred in or caused by service because the dates of diagnoses are not within one year of separation, and that "there is insufficient documentation in his service medical records to establish the presence of those disorders to an earlier date." 

In a February 2016 supplemental medical opinion, a VA examiner opined that the Veteran's GERD had not worsened beyond expected progression; accordingly, she concluded that it was less likely than not that his GERD had been aggravated by his service-connected psychiatric disability.  In an April 2016 supplemental opinion, the examiner opined that it was less likely than not that the Veteran's digestive disorders including hiatal hernia, esophageal stricture, and esophageal spasms were permanently aggravated by his service-connected psychiatric disability because the medical evidence is not sufficient to establish a baseline level of severity for the digestive disorders.   

Unfortunately, these negative nexus opinions are both incomplete (as to secondary service connection) and speculative in that they rely on "insufficient evidence of baseline severity," to discount the Veteran's secondary service connection claim and do not adequately consider his in-service digestive symptoms and his statements and testimony regarding continuity of these symptoms from service to present.  Because there is otherwise insufficient evidence to decide the claim, a remand is necessary to obtain a supplemental nexus opinion. 

Accordingly, the case is REMANDED for the following action:

1. Obtain updated VA and adequately identified private treatment records relevant to the claims on appeal. 

2.  Obtain a supplemental opinion on whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral sensorineural hearing loss is related or attributable to his military service from May 1982 to May 1986, or initially manifested within the initial post-service year, so by May 1987, to alternatively warrant presuming it was incurred during his service. 

The supplemental opinion must be based on consideration of the following: 

a) The threshold shift between the Veteran's enlistment January 1982 and February 1985 audiograms

b) The Veteran's in-service noise exposure

A detailed explanation (rationale) is requested for all opinions provided.  (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.  Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested).
  
If an adequate opinion responsive to these directives cannot be provided without another actual examination, the Veteran should be scheduled for this additional evaluation, but this is left to the designee's discretion.

3.  Then arrange for an appropriate VA medical examiner to review the claims file including any newly obtained evidence and respond to the following:

1) Please identify any current pulmonary disabilities, aside from asthma.  The examiner should consider restrictive lung disability as established. The examiner should then provide the following opinions for any identified current disability.  

a) Is it at least as likely as not (a 50 percent or great probability) that the disability was incurred in or otherwise related to the Veteran's service?  The examiner should specifically discuss whether the Veteran's current pulmonary disability was caused or related to his in-service pneumonia or to his in-service toxin exposure while cleaning up after a jet crash. 

b) Is it at least as likely as not (a 50 percent or better probability) that the disability was CAUSED by the Veteran's service-connected asthma,  gastrointestinal/digestive, or psychiatric disabilities?

c) Is it at least as likely as not (a 50 percent or better probability) that the disability was AGGRAVATED by the Veteran's service-connected asthma, gastrointestinal/digestive, or psychiatric disabilities? (Aggravation means the disability increased in severity beyond its natural progression.)

2) Next, please identify any current GI disability, including the established GERD, esophageal stricture, esophageal spasm, hiatal hernia, and duodenal ulcer.  The examiner should then provide the following opinions for all identified current disabilities.  

a) Is it at least as likely as not (a 50 percent or great probability) that the disability was incurred in or otherwise related to the Veteran's service?  The examiner should consider the Veteran's March 2013 Board hearing testimony regarding dysphagia symptoms persisting since service.  The examiner should also consider the Veteran's belief that his in-service respiratory illness triggered his GI symptoms.  

b) Is it at least as likely as not (a 50 percent or better probability) that the disability was CAUSED by the Veteran's service-connected asthma, gastrointestinal/digestive, or psychiatric disabilities?

c) Is it at least as likely as not (a 50 percent or better probability) that the disability was AGGRAVATED by the Veteran's service-connected asthma, gastrointestinal/digestive, or psychiatric disabilities? (Aggravation means the disability increased in severity beyond its natural progression.)

A detailed explanation (rationale) is requested for all opinions provided.  (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.  Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested).

If an adequate opinion responsive to these directives cannot be provided without another actual examination, the Veteran should be scheduled for this additional evaluation, but this is left to the designee's discretion.

4.  Finally, readjudicate the claims on appeal.  If any benefit sought on appeal remains denied, furnish the Veteran and his representative with a supplemental statement of the case and allow them the opportunity to respond.  

The Veteran has the right to submit additional evidence and argument on the remanded matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  As a remand, this matter must be handled expeditiously.  38 U.S.C. §§ 5109B, 7112 (2012).



_________________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs