Citation Nr: 1804394 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-08 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a compensable rating for histoplasmosis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had active duty service from June 1974 to June 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision. The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in June 2013. A transcript is of record. The claim was remanded by the Board in November 2014 and January 2017 for additional development. The Veteran was previously represented by a private attorney. In correspondence dated December 2017, he indicated that the attorney no longer represented him. FINDINGS OF FACT The preponderance of the evidence indicates that the Veteran does not currently suffer from pulmonary mycosis from acute, chronic, or disseminated histoplasmosis. CONCLUSION OF LAW The criteria for a compensable rating for histoplasmosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.97, Diagnostic Code 6834 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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 Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes that actions requested in the prior remands have been undertaken. In this regard, the Veteran was asked to provide completed release forms for all health care providers who had treated him for his disability; a VA examination was conducted; and an addendum opinion was obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection was originally established for left hilar adenopathy. In the March 2009 rating decision that is the subject of this appeal, the disability was recharacterized as histoplasmosis based on the diagnosis rendered on VA examination. Histoplasmosis of lung is evaluated pursuant to the General Rating Formula for Mycotic Lung Disease pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6834. Under the rating criteria for a mycotic lung disease, a noncompensable rating is assigned for healed and inactive mycotic lesions that are asymptomatic; a 30 percent rating is warranted for chronic pulmonary mycosis with minimal symptoms such as occasional minor hemoptysis or productive cough; a 50 percent rating is warranted for chronic pulmonary mycosis requiring suppressive therapy with no more than minimal symptoms such as occasional minor hemoptysis or productive cough; and a 100 percent rating is warranted for chronic pulmonary mycosis with persistent fever, weight loss, night sweats, or massive hemoptysis. See 38 C.F.R. § 4.97, Diagnostic Codes 6834-6839 (2017). The Board notes that mycosis is defined as any disease caused by a fungus. See Dorland's Illustrated Medical Dictionary, 1208 (30th Ed. 2003). In a June 2013 statement, the Veteran's wife reports that she and the Veteran had been married for 21 years and that during this time, the Veteran had suffered choking fits during heavy exertion and frequently during eating, and that he also had a persistent cough after eating and when going to bed. In a June 2013 statement, Dr. E.G. reported that the Veteran had a history of atrial fibrillation and coronary artery disease and that evaluation by a pulmonologist had been recommended because of ongoing shortness of breath. The Veteran testified in June 2013 that he should be rated at 30 percent disabling for his lung disability. He reported going into choking fits under extreme exertion, causing him to cough and choke and lasting up to 15 minutes. He also reported problems with choking while and after eating; persistent cough at night; coughing after he eats; and shortness of breath. He indicated that he was seen by a pulmonary specialist, who said things were ok, such that he did not see the reason to spend money to go see another. The Veteran testified that he had not taken any medication, nor received any specific treatment, for his lung disability. He reported productive cough, specifically reporting that he had a little bit of phlegm with his cough. The Veteran also noted that his breathing capacity was reduced and he was instructed not to push himself during testing to the point where he would cough, hack or choke. He noted that he had always had shortness of breath, to include going back to service. The Veteran underwent a VA examination in June 2008, at which time he reported being diagnosed with histoplasmosis. He denied the condition affected body weight, persistent fever, cough with sputum, and hemoptysis, but reported night sweats, pain/discomfort over the chest area on exertion, and choking with extreme exertion. The Veteran denied receiving any treatment for the respiratory condition and denied any functional impairment as a result of the condition. Physical examination revealed the Veteran's breath sounds were symmetric without rhonchi or rales. Expiratory phase was within normal limits. Pulmonary function testing (PFT) showed FVC of 83 percent predicted and FEV1 of 78 percent predicted. Chest x-ray results were within normal limits. The examiner reported that for the VA-established diagnosis of left hilar adenopathy, the diagnosis was changed to histoplasmosis based on subjective history of the condition and objectively normal examination. The examiner also noted that the effect of the condition on the Veteran's daily activity was occasional shortness of breath. The Veteran subsequently underwent CT scan of the chest in July 2008, which showed calcified granuloma in the left base, but no other focal abnormalities in the lungs. When the findings were returned to the June 2008 VA examiner to determine whether there would be a change to the diagnosis of histoplasmosis, the examiner indicated there would not. The Board notes that both the chest x-ray and CT scan results are also of record. The Veteran underwent a VA respiratory conditions Disability Benefits Questionnaire (DBQ) in March 2015, at which time the examiner diagnosed mycotic lung disease, specifically histoplasmosis. The Veteran's respiratory condition did not require the use of oral or parenteral corticosteroid medications; inhaled medications; oral bronchodilators; antibiotics; or outpatient oxygen therapy. The examiner indicated that the Veteran had mycotic lung infection, but there were no symptoms of mycotic lung disease. The examiner reported on the findings from a November 2010 chest x-ray, which showed that lungs were clear and contained an impression of no active cardiopulmonary disease. PFT performed in March 2013 showed FEV-1/FVC of 78 percent which the examiner found to be within normal limits. The examiner also noted normal resting room air oxygenation; no significant response to bronchodilators; and that diffusion capacity of the lung was mildly reduced. It was noted that the small decrease in diffusion may be due to coronary artery disease, not histoplasmosis. The examiner determined that the Veteran's respiratory condition did not impact his ability to work. In the remarks section, the examiner reported that research showed that as many as 90 percent of the tested population of Indiana had been exposed to histoplasmosis; that if the Veteran was infected, it is very rare they become ill unless they are immunologically compromised; that this Veteran was never ill with a histoplasmosis infection that was documented; that if someone is going to get symptoms it is usually within seven days per medical literature; that the condition is very treatable with medication; and that if the Veteran had an active infection, he would have been treated for the condition. The Board remanded the claim in January 2017 in order to obtain an addendum opinion that addressed whether the Veteran's claimed symptoms of shortness of breath, choking while eating and after meals, choking fits on heavy exertion, persistent cough at night; coughing after he eats; and cough with a little bit of phlegm are residuals of his histoplasmosis, to include the calcified granuloma in the left base shown on July 2008 CT scan. The examiner was also asked to clarify whether the decreased diffusion is more likely due to the Veteran's coronary artery disease or whether it is equally likely to be due to the histoplasmosis. An addendum opinion was obtained in April 2017. First, the examiner indicated that it is less likely than not that the Veteran's claimed symptoms of shortness of breath, choking while eating and after meals, choking fits on heavy exertion, persistent cough at night, coughing after he eats, and cough with phlegm, are residuals of his histoplasmosis, to include the calcified granuloma in the left base. The rationale was based on the absence of objective evidence after review of both the medical evidence of record, and the statements made by both the Veteran and his wife in support of his claim, that the Veteran has acute, chronic, or disseminated histoplasmosis. The examiner noted that the symptoms reported by the Veteran and his wife differ from the symptoms he reported during appointments with private medical doctors between 2007 and 2015. The examiner acknowledged that the Veteran reported episodic palpitations (related to his nonservice-connected paroxysmal atrial fibrillation) and shortness of breath on objective records, but further indicated that these same records from three different private physicians failed to document symptoms of choking fits related to eating and exertion, persistent cough after eating, persistent nighttime cough, or sputum production. The examiner also noted that the symptoms reported by the Veteran and his wife are nonspecific, and may be associated with numerous conditions, further noting that several medical articles cited did not suggest that dysphagia or choking after eating are associated with any forms of histoplasmosis. The examiner also provided an opinion that it is less likely than not that the decreased DLCO is due to the service-connected histoplasmosis. The rationale was based on the fact that the Veteran has no confirmed diagnosis of active histoplasmosis and that medical articles do not indicate that histoplasmosis is associated with a lowered DLCO. The examiner also noted that the Veteran had normal spirometry on PFT in March 2015 and that the clinical significance of his slightly lower DLCO was unclear, while noting that coronary artery disease can affect DLCO and that the Veteran's documented pulmonary hypertension can also cause abnormal DLCO. The preponderance of the evidence of record is against a finding that the Veteran is entitled to a compensable rating for histoplasmosis at any time during the appellate period. The Board acknowledges the Veteran's subjective complaints of shortness of breath going back to service, choking fits, and productive cough, and notes that the Veteran's wife has also reported choking fits and persistent cough. The Board notes, however, that such assertions are not consistent with his private treatment records. In this regard, private treatment records from 2007 noted the Veteran denied shortness of breath, dyspnea on exertion, coughing, and wheezing. He again denied shortness of breath, cough and wheezing in April 2008. In November 2010 he denied shortness of breath, wheezing, sputum production, fever and night sweats. He similarly denied dyspnea on exertion, shortness of breath, cough, sputum, wheezing, and change in exercise tolerance in 2012 and 2013 visits. It was not until 2014 that he reported mild dyspnea on exertion but denied shortness of breath at rest, cough, sputum, wheezing or changes in exercise tolerance. In sum, the Board does not find the Veteran's assertions to be less probative and persuasive than the medical findings of record. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a Veteran's testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). Moreover, there is no indication from the medical evidence, that the Veteran's histoplasmosis is chronic or even active/symptomatic. Rather, the June 2008 VA examiner specifically indicated that although the diagnosis was histoplasmosis, objective examination was normal; the VA examiner who conducted the March 2015 DBQ specifically indicated that there were no symptoms of mycotic lung disease and that if the Veteran had an active infection, he would have been treated for the condition. The April 2017 addendum opinion also supports this determination, as the examiner indicated that there was no objective evidence of acute, chronic, or disseminated histoplasmosis. In addition, the April 2017 opinion reported that medical articles indicate that some of the symptoms reported by the Veteran could be caused by pulmonary hypertension and that these articles do not indicate an association between histoplasmosis and lower diffusion. In the absence of competent and credible evidence that the Veteran's histoplasmosis is active, or that it is manifested by chronic pulmonary mycosis, a compensable rating is not warranted and the claim must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER A compensable rating for histoplasmosis is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs