Citation Nr: 1804823 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-27 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include bronchitis, chronic obstructive pulmonary disease (COPD), and lung cancer, to include as due to herbicide agent exposure. 2. Entitlement to a disability rating in excess of 30 percent for service-connected diabetic nephropathy. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to July 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge in May 2017. A transcript of the hearing is of record. FINDINGS OF FACT 1. The evidence is against a finding that the Veteran's respiratory disability manifested during, or is otherwise related to, his active military service, to include as due to herbicide agent exposure. 2. The Veteran's diabetic nephropathy has not been manifested by constant albuminuria with some edema, definite decrease in kidney function, or hypertension with diastolic pressure predominantly 120 or more. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for a disability rating in excess of 30 percent for diabetic nephropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.115b, Diagnostic Code 7541 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection will be granted on a direct basis if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be presumed for certain diseases, if a veteran was exposed to an herbicide agent, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Additionally, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Further, it is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts he has a respiratory disability that was caused by his active service, to include from exposure to herbicide agents. The record confirms the Veteran's service in the Republic of Vietnam during the Vietnam Era, and he is therefore presumed to have been exposed to herbicide agents. As noted, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection for a disability or death is warranted for certain disorders, to include respiratory cancers. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Respiratory cancers are defined as including cancer of the lung, bronchus, larynx, or trachea. 38 C.F.R. § 3.309(e). Review of the medical evidence of record, however, is against a finding that the Veteran has a respiratory cancer of any kind. While a small, non-specific lesion on the right lung is noted in treatment records dated from 2013 to 2015, to date it has undergone no further diagnosis or treatment. A private treatment record dated March 2015 notes the lung lesion was thought to be only fibrotic in nature. A June 2015 VA treatment record notes that there is "nothing in the lung that could be biopsied." In addition, while VA treatment records do note ongoing COPD and a history of bronchitis and emphysema, these are not diseases that VA recognizes as related to exposure to herbicide agents. 38 C.F.R. § 3.309(e). Hence, entitlement to presumptive service connection for a respiratory disability is not warranted. As to service connection on a direct basis, the evidence of record does not establish an in-service incurrence or aggravation of any respiratory disability. The Veteran's service treatment records, including his separation examination, are silent for complaints, treatment, diagnosis, or management of any respiratory problem in service. No other evidence competently and credibly shows any in-service event upon which a claim for service connection for his respiratory disabilities could be based. See 38 C.F.R. § 3.303. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claim. In disability compensation claims, the VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. McLendon v. Nicholson, 20 Vet App. 79 (2006). Here, the Board notes that there is evidence in the record that suggests the Veteran's COPD is instead related to his long history of daily tobacco use. A December 2005 VA treatment record notes "tobacco abuse with COPD." A March 2015 VA treatment record notes his COPD as severe, with the Veteran "not ready to quit smoking." Most persuasively, an October 2012 VA treatment record notes that the Veteran "does not seem to accept the relationship between his COPD and his continued heavy smoking." The remaining evidence of record is negative for any probative evidence of a nexus between a respiratory disability and the Veteran's active military service. Accordingly, a VA examination is not warranted to decide this claim. The Board also notes that the record suggests the Veteran's history of smoking stretches back five decades, to include during his period of active service. Even if it were to be suggested that the Veteran's respiratory disabilities were related to tobacco use, claims received after June 9, 1998 are precluded for any disability related to chronic tobacco use, even if the tobacco use occurred during service. See 38 U.S.C. § 1103 (2012); 38 C.F.R. § 3.300 (2017). Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a respiratory disability. The Board acknowledges the Veteran's various lay assertions that he believes he has a respiratory disability that is related to service. However, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d 1376-77. In this regard, the etiology of the Veteran's respiratory disabilities is a matter not capable of lay observation, and requires medical expertise to determine. Accordingly, his opinion as to their etiology is not competent medical evidence. In reaching this determination, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2017). The evaluation of the same disability under various diagnoses is to be avoided, as this would constitute pyramiding. See 38 C.F.R. § 4.14 (2017). However, this does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran is service-connected for diabetic nephropathy, evaluated at 30 percent disabling. For the reasons that follow, the Board finds that a higher rating is not warranted during the entire period on appeal. The Veteran's diabetic nephropathy is rated under Diagnostic Code 7541 as renal dysfunction. A higher, 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7101 (diastolic pressure predominantly 120 or more). An 80 percent rating is warranted for persistent edema and albuminuria with blood urea nitrogen levels (BUN) 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is warranted for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115b. A private treatment record notes a March 2011 emergency room visit for a complaint of right flank pain. Laboratory findings showed BUN levels at 14 and creatinine levels at 0.9. A VA kidney examination the following November 2011 showed recurring proteinuria, but no evidence of other signs of renal dysfunction, such as edema, anorexia, weight loss, generalized poor health due to renal dysfunction, lethargy, weakness, limitation of exertion, or markedly decreased function of other organ systems. The Veteran did not require dialysis. Laboratory findings showed BUN levels were at 13 and creatinine levels were at 1.1. The examination report noted that the Veteran did not have a history of diastolic pressure predominantly 100 or more. Recent blood pressure readings were noted as 160/72, 139/71, and 112/80. Upon VA examination again in September 2012, the examiner noted no evidence of progressive microalbuminuria or renal dysfunction since the previous VA examination, and no evidence of a history of hospitalization for renal failure or required dialysis. The examiner did note recurring proteinuria, but no other signs or symptoms of renal dysfunction, or evidence of hypertension. BUN levels were at 16 and creatinine levels were at 0.92. The Board notes that an October 2013 emergency room visit for a kidney stone showed elevated creatinine at 2.18. At another VA kidney conditions examination in February 2014, however, creatinine levels were down to 0.85, with BUN levels at 12. Findings similar to the previous VA examination in September 2012 were noted, namely recurring proteinuria with no other signs or symptoms of renal dysfunction, a requirement of regular dialysis, or evidence of hypertension. At an additional emergency room visit record dated March 2015 for chronic back pain, lab work showed normal BUN and creatinine levels. Finally, additional VA kidney conditions examinations in February and July 2015 continued to show no increase in severity of the Veteran's nephropathy. While persistent albuminuria was noted by the July 2015 examiner, BUN and creatinine levels were 14 and 1.01, respectively. Neither examination showed evidence of edema or any other signs or symptoms of renal dysfunction, a requirement of regular dialysis, or evidence of hypertension. More recent laboratory work in a VA treatment record dated March 2017 show BUN levels at 15 and creatinine at 0.80. No other treatment records are in significant conflict with the above evidence. Thus, the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 30 percent. The evidence does not show that the severity of the Veteran's diabetic nephropathy is manifested by at least constant albuminuria with some edema, a definite decrease in kidney function, or hypertension manifested by diastolic pressure predominantly 120 or more, as required for a higher evaluation under Diagnostic Code 7541. 38 C.F.R. § 4.115b. Although he asserts that physicians informed him of the possible future need for kidney dialysis, the record does not reflect that this is currently the case. Generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion were also not noted on any VA examination. While persistent albuminuria was noted upon VA examination in July 2015, no edema was present, and BUN and creatinine levels were not elevated. Also, since creatinine levels were normal upon VA examination in February 2014, February 2015, and again in July 2015, the Veteran's elevated levels during his March 2013 emergency room visit seem to have been acute in nature. A definite decrease in kidney function is not shown. The Board has also considered whether separate ratings could be assigned to the Veteran based on any other symptomatology, but has found none. Although VA treatment records indicate that the Veteran has currently-unbiopsied 7 millimeter mass on his left kidney, the mass was stable as of June 2015, with no further analysis or diagnosis. The record also reflects the Veteran suffers from recurrent kidney stones. However, he is already service-connected for this disability. The Board acknowledges the Veteran's lay statements, including statements made to the undersigned in his May 2017 hearing testimony. The Veteran is competent to report his own observations with regard to the severity of his diabetic nephropathy. See Jandreau, 492 F.3d 1376-77. His statements as to renal dysfunction are consistent with the rating already assigned. To the extent he argues his symptoms are more severe, his statements must be weighed against the other evidence of record. The Veteran has undergone multiple VA examinations. The specific examination findings of trained health care professionals are of greater probative weight than the Veteran's more general lay assertions. The Board also acknowledges that, in exceptional cases where evaluations under the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with a veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. 3.321(b). However, it first must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. See Thun v. Peake, 22 Vet. App. 111 (2008). If the rating criteria are adequate, the analysis need not proceed any further. In this instance, the regular schedular standards adequately describe and provide for the Veteran's level of disability. There is no evidence that his diabetic nephropathy, by itself, has resulted in marked interference with employment or frequent periods of hospitalization. Instead, the record suggests that complications from the Veteran's many other disabilities, service-connected or otherwise, have contributed the most to his lengthy history of medical treatment. While it is undisputed that nephropathy itself could have an adverse effect on employment, the schedular rating criteria are designed to take such factors into account, as it is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. See 38 U.S.C. §1155; 38 C.F.R. §4.1. There is no evidence of any unusual or exceptional circumstances that would take this case outside the norm so as to warrant referral for consideration of an extraschedular rating. In addition, an extraschedular rating could not provide a means for increased compensation in this case. The Veteran has been assigned a total disability rating or a 100 percent disability rating since November 2004 and is in receipt of special monthly compensation since January 2011, prior to the time this claim was filed. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to service connection for a respiratory disability is denied. Entitlement to a disability rating in excess of 30 percent for service-connected diabetic nephropathy is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs