Citation Nr: 18151651 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 17-10 506 DATE: November 20, 2018 ORDER Service connection for significant pulmonary emphysema (SPE), to include as due to exposure to herbicide agents, is denied. Service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to herbicide agents, is denied. An initial rating in excess of 30 percent for ischemic heart disease (IHD), status post percutaneous coronary intervention (PCI) and myocardial infarction (MI), is denied. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU), to include on extraschedular basis, is remanded. FINDINGS OF FACT 1. The Veteran’s SPE is not causally or etiologically related to his active duty service, to include conceded exposure to herbicide agents. 2. The Veteran’s COPD is not causally or etiologically related to his active duty service, to include conceded exposure to herbicide agents. 3. For the entire initial period on appeal from February 28, 2011, the Veteran’s IHD status post PCI and MI disability did not result in more than one episode of acute congestive heart failure in a year, a workload of greater than 3 metabolic equivalents (METs) but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. CONCLUSIONS OF LAW 1. The criteria for service connection for SPE, to include as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). 2. The criteria for service connection for COPD, to include as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). 3. The criteria for an initial rating higher than 30 percent for IHD status post PCI and MI have are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7006 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to June 1970, to include service in the Republic of Vietnam. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection—Laws and Regulations Service connection will be granted 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). SPE and COPD The Veteran asserts that his SPE and COPD are related to his active duty service, specifically to his conceded exposure to herbicide agents during his service at the Republic of Vietnam. Alternatively, he asserted that his disabilities were secondary to asbestos exposure. The Veteran has current diagnoses of SPE and COPD. See e.g., November 2011 VA examination report. The Board notes that SPE and COPD are not among the conditions subject to presumptive service connection as a disease associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). In addition, the Board notes that the Veteran’s service treatment and military personnel records are silent to any potential exposure to asbestos and his military specialty occupation of “hospitalman” has only low probability of exposure to asbestos, and as will be discussed below, there is no objective medical evidence suggestive of asbestos exposure. Nevertheless, the Veteran is not precluded from establishing service connection for SPE and COPD with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). After a careful review of all the evidence, lay and medical, the Board finds that the Veteran’s SPE and COPD did not have their onset during service and are not otherwise causally or etiologically related to it. The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis specific to either SPE or COPD. The Board does note that a lung x-ray dated in February 1970 showed “increased right lower lung bronchovascular markings.” Post-service treatment records dated in September 2004 noted cigarette smoking for approximately 40-years duration, presently one-to-one-and-half packs per day. The medical professional noted that the patient was strongly counseled regarding smoking cessation. The medical professional concluded that the Veteran had probable COPD with history of tobaccoism. Due to his reported chest pain at the time, the Veteran was diagnosed with hyperinflation suggestive of COPD. In September 2005, private treatment records showed that the Veteran reported emphysema and chest discomfort, at which time he was diagnosed with COPD. Thereafter, treatment records in July 2007 contained CT of the chest, which revealed significant pulmonary emphysema. In his June 2011 claim for compensation, the Veteran indicated that his SPE and COPD were due to exposure to Agent Orange in Vietnam. Thereafter, in a statement in support of claim dated in October 2011, he stated what was diagnosed as chronic bronchitis that started within a few months of returning from Vietnam was his COPD and emphysema he had today. He further stated that Agent Orange was sprayed around the perimeter of Da Nang when he was stationed there and this was all he could smell. Lastly, he stated that what his doctor from the 1970s and other doctors called chronic bronchitis all these years was COPD and emphysema. In November 2011, the Veteran underwent a VA examination for respiratory conditions, at which time the examiner confirmed diagnoses of emphysema and COPD. The Veteran stated that his disabilities began during active duty service after he was exposed to Agent Orange. He further reported that he did not have any hospitalizations for a respiratory condition and was able to complete light duty chores as long as he paced himself. Lastly, he noted that he smoked one-to-one-and-half packs of cigarettes per date since he was 17 or 18 years old until he was 55 years old. X-rays of the chest revealed hyperinflation with no active disease and no evidence of pleural plaques. After a review of the claims file and examination of the Veteran, the examiner noted that the Veteran had a moderately severe OVD with reduced DLCO consistent with emphysema, previous tobacco product use, and no objective evidence of asbestosis – no pleural plaques on imaging and no RVD on PFTs. The examiner then opined that SPE was less likely than not related to the Veteran’s active duty service or asbestos exposure but at least as likely as not was caused by or was the result of the Veteran’s previous tobacco product use. The examiner further noted that there was no objective evidence of asbestosis and an opinion regarding exposure to asbestos was not rendered. The examiner explained that review of medical literature and the Veteran’s medical records along with the clinical examination supported this opinion. The examiner further explained that in general, the vast majority of COPD cases were the direct result of tobacco abuse, and although other causes were known such as alpha-1 antitrypsin deficiency, cystic fibrosis, air pollution, occupational exposure (such as firefighters), and bronchiectasis, it was still a disease process that was “somewhat unique” in its direct correlation to a human activity. Lastly, the examiner explained what evidence would show exposure to asbestos and noted that this Veteran did not have any objective evidence of such exposure. In a December 2011 “buddy statement” the Veteran’s spouse indicated that she observed his illnesses for many years, which were diagnosed as upper respiratory infection. In additional statements dated in December 2011 and February 2012, the Veteran again noted that it was his belief that Agent Orange exposure caused his SPE and COPD. Private treatment records dated in May 2012 showed that the Veteran related some of his illnesses and symptoms to Agent Orange. In an additional “buddy statement” dated in September 2012, the Veteran’s spouse indicated that he was exposed to Agent Orange in Vietnam and shortly after he came home he had lung problems. She further stated that he did “ok” until 2004, but then passed out a few times and during a hospital course was told he had major heart disease, COPD, and severe emphysema and the only risk factor he ever had was his off and on smoking of a half a pack to a pack a day; however, she indicated that this “was not enough to do all of this with him being only 55 [years old].” In an additional statement in support of claim that was received in September 2012, the Veteran stated that he would “take a polygraph” to prove that his statements were true, specifically regarding his exposure to Agent Orange. In November 2012, the Veteran underwent an additional VA examination for respiratory disorder, at which time the examiner again confirmed diagnoses of COPD and emphysema since 2007. After a review of the claims file and examination of the Veteran, the examiner opined that the disabilities were less likely than not related to the Veteran’s active duty service, to include conceded exposure to herbicide agents or the incident leading to the February 1970 x-rays. The examiner explained the known risk factors for the disabilities and concluded that the likely cause of the Veteran’s SPE and COPD was his history of smoking. Subsequent VA treatment records continued to show treatment for the Veteran’s SPE and COPD, but other than referencing his history of smoking, provided no additional evidence regarding the nature and etiology of the disorders. Based on the foregoing, the Board finds that the evidence is against finding that the Veteran’s SPE and/or COPD incurred in-service or are otherwise related to it, to include conceded exposure to herbicide agents. Notably, the Veteran has asserted that these claimed disabilities are related to his exposure to Agent Orange during his military service and stated that his prior diagnosis of chronic bronchitis was really SPE and COPD. However, a mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to establish medical etiology or nexus. Waters v. Shinseki, 601 F.3d 1274 (2010). Furthermore, while the Veteran is competent to describe symptoms he experienced at any given time, under the facts of this case, he is not shown to possess the medical expertise needed to render a medical opinion. Therefore, the Board finds the Veteran’s lay opinion regarding nexus is not competent or probative. On the contrary, the November 2011 and November 2012 VA examination reports and associated opinions are of high probative value. The VA examiners’ opinions were demonstrably fully informed of the pertinent factual premises of the case and provided a fully articulated opinion with supporting reasoned analysis explaining why the Veteran’s SPE and COPD was not caused by his conceded exposure to herbicide agents, but rather due to his years of smoking. See Nieves-Rodriguez, 22 Vet. App. 295, 303-304 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Moreover, the private and VA medical treatment records only reference the Veteran’s years of smoking in regard to his respiratory disorders and at no point related it to his exposure to herbicide agents. Because the preponderance of the evidence is against the claim for service connection for SPE and COPD, the benefit-of-the-doubt rule does not apply and the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Claim—Laws and Analysis Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). IHD VA received the Veteran’s claim for IHD in February 2012, and in a March 2013 rating decision, the RO granted service connection for IHD, status post percutaneous coronary intervention and MI. The Veteran was assigned a 30 percent disability rating effective February 28, 2011, a year prior to his claim pursuant to DC 7006. The Board notes that the Veteran is diagnosed with coronary artery disease, which is rated pursuant to 38 C.F.R. § 4.104, DC 7005; however, since he experienced a MI, the disability was rated under DC 7006 to more accurately reflect the nature of his disability. In this regard, the Board notes that there is no prejudice to the Veteran as the evaluations for 30, 60, and 100 percent (other than following an MI) are identical under DC 7005 and 7006. Under DC 7006, a 30 percent rating is warranted where there is a workload of greater than 5 METs but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted where there is more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted where there is chronic congestive heart failure, or workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. Pertinent to the evaluation of heart disabilities, one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104. After a careful review of all the evidence, lay and medical, the Board finds that a rating higher than 30 percent is not warranted at any time during this initial rating period on appeal. Private treatment records dated in April 2011 showed that the Veteran complained of chest pain and it was noted that he had coronary artery disease post a previous right coronary artery stent. He indicated that his chest pain became more frequent, midsternal, associated with activity, and relieved with rest. A study revealed normal size left ventricle, normal wall thickness, and overall normal systolic function. The ejection fraction was between 50 percent and 55 percent. The medical professional specifically noted normal left ventricular systolic function with evidence of early left ventricular diastolic dysfunction, normal right ventricular systolic function, mild tricuspid regurgitation and normal pulmonary artery pressure. A June 2012 private echocardiographic study revealed a normal size left ventricle without hypertrophy and overall normal left ventricular systolic function. Systolic ejection fraction was estimated to be 60 percent to 65 percent. The medical professional noted normal coronary arteriogram with widely patent right coronary stent, normal left ventriculogram, and no aortic or mitral valve abnormalities. Thereafter, private treatment records dated in July 2012 indicated that the Veteran was hospitalized due to sinus bradycardia, sick sinus syndrome (SSS), tachy, and brady. The Veteran reported that he had chest pain and dizziness. On physical examination, no murmurs were heard and there was no bruit in the carotid artery. The assessment was native coronary artery stenosis. Additional private treatment records dated in August 2012 noted that the Veteran had a recent diagnosis of SSS and indicated that he had tachybrady syndrome with a heart rate down to the 30s. The Veteran admitted to extreme fatigue, weakness, as well as dizziness. The medical professional noted that a recent echocardiogram also revealed a heart rate in the low 40s and as a result he was sent to this medical professional for insertion of a permanent pacemaker. On physical examination, the heart had regular rhythm and rate. The impression was sick sinus syndrome with symptomatic bradycardia. In November 2012, the Veteran underwent a VA examination for IHD, at which time the examiner confirmed a diagnosis of IHD as evident by cardiac stent placement in September 2004. It was noted that the Veteran required continuous medication, to include Plavix and Exforge. There was a history of percutaneous coronary intervention (PCI) in September 2004 after the Veteran suffered a MI. There was no history of coronary bypass surgery. The examiner further noted that the Veteran had an implanted cardiac pacemaker in August 2012, but indicated that this pacemaker was not due to the Veteran’s IHD. The Veteran did not have congestive heart failure (CHF). The examiner identified dyspnea and fatigue that resulted in METs greater than 5 but not greater than 7, consistent with activities such as golfing (without card), mowing lawn (push mower), and heavy yardwork (digging). There was no evidence of cardiac hypertrophy or dilatation. The examiner reviewed a March 2012 EKG and June 2012 chest x-rays and echocardiogram that revealed left ventricular ejection fraction of 60 to 65 percent. The examiner noted that the Veteran’s IHD impacted his ability to work based on his description that he must pace himself with activities secondary to shortness of breath and fatigue. The examiner concluded that cardiac stress testing was medically contradicted for examination purposes as the METs were easily estimated based on the Veteran’s known disease, level of physical activity, and reported symptoms. The examiner again noted that the estimated METs was 5-7 and provided additional examples of activities, to include vacuuming, bike riding, walking, and making the bed/changing sheets. The examiner additionally noted that the Veteran’s activity was limited secondary to his dependent emphysema, and although the Veteran stated that he tried to remain active he must pace himself secondary to shortness of breath. Lastly, the examiner noted that the most recent echocardiogram of 60 to 65 percent left ventricular ejection fraction was normal. In January 2013, the Veteran submitted a copy of the VA examination with his handwritten notations, where he indicated that his METs level was “more like” greater than 1 but not greater than 3. In his February 2014 notice of disagreement, the Veteran stated that his was worse than the assigned 30 percent disability rating despite his compliance with the prescribed medication. He further stated that his pacemaker did not “give his heart more ability,” but just kept his heartrate in line if it was too slow. Subsequent VA treatment records continued to show treatment for the Veteran’s heart disability. The Veteran had an echocardiogram done in May 2017, and the medical professional indicated that carotid stenosis certainly could not be ruled out. The additional treatment did not show acute congestive heart failure in a year, a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Based on the foregoing, the Board finds that a rating higher than 30 percent is not warranted at any point during this initial period on appeal. As discussed, there is no evidence that the Veteran was diagnosed with congestive heart failure at any point pertinent to the appeal. Furthermore, the lowest LVEF the Veteran showed during this period was from 50 to 55 percent. See April 2011 private treatment record. At that time, the Veteran was also noted to have normal left ventricular systolic function with evidence of early left ventricular diastolic dysfunction, normal right ventricular systolic function, mild tricuspid regurgitation and normal pulmonary artery pressure. The overwhelming weight of the medical evidence throughout the rating period demonstrates left ventricular dysfunction with an ejection fraction greater than 50 percent. In addition, the Veteran’s METs were estimated to be greater than five but not greater than 7, and although the Board’s notes that Veteran’s lay statement that his METs were “more like” greater than 1 but not greater than 3, the medical professional’s opinion supported by the objective medical evidence is more probative. In addition, VA treatment records throughout the pendency of the appeal indicate that the Veteran’s heart disease was stable, which suggests that such had not progressed in severity since the November 2012 VA examination. Therefore, the evidence shows that the Veteran had no less than a LVEF of 60 percent, and a METs score of no less than 5. Thus, an initial rating higher than 30 percent is not warranted under DC 7006. REASONS FOR REMAND The Board finds that a remand is necessary to obtain an addendum medical opinion regarding the nature and etiology of the Veteran’s hepatitis C. The Veteran reported that he was diagnosed with hepatitis C within a year of discharge, which he believed was transmitted by contact with blood. In November 2012, the Veteran underwent a VA examination, at which time the examiner confirmed a diagnosis of hepatitis C. The examiner noted that the Veteran reported history of “free-basing heroin” during and after his tour of duty in Vietnam and also reported blood exposure when he worked as a medic during his active duty. The examiner explained that the known risk factors for hepatitis C infections were intravenous drug use; blood transfusions; accidental exposure in healthcare workers; hemodialysis; intranasal cocaine use; high risk sexual activity; direct percutaneous exposure such as through tattoos and body piercings or acupuncture with non-sterile needles; and, shared toothbrush or razor blades. Regarding the reported risk factors, the examiner stated that “any or all of these reported factors” could be the etiology for the Veteran’s present diagnosis of hepatitis C, but opined that service connection could not be established for hepatitis C due to injecting drug use or intranasal drug use because by statute, disabilities resulting from drug abuse are not considered to have been incurred in line of duty. However, the Board finds this opinion inadequate. Notably, the examiner simply made a conclusory legal conclusion as opposed to simply provide a medical opinion. Despite identifying possible risk factors other than drug use, the examiner did not explain why it was more likely the drug use than exposure to blood during service that caused the Veteran’s Hepatitis C. Moreover, the Veteran identified additional situations where he was exposed to blood that were not addressed by this examiner. Accordingly, on remand, a new addendum opinion is necessary prior to adjudicating the claim on the merits. In October 2016, the Veteran submitted a VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, and although the RO did not adjudicate his claim, the Board finds that the claim for TDIU is part of the increased rating claim on appeal. The United States Court of Appeals for Veterans Claims (Court) has held that a request for TDIU is part and parcel of a higher rating when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this regard, the Board notes that the TDIU claim is inextricably intertwined with the issue being remanded and adjudication of TDIU must be deferred pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Moreover, if he does not meet the schedular criteria after the RO readjudicates his claim for service connection for hepatitis C, there is sufficient evidence of record to warrant referral for extraschedular TDIU consideration. The Veteran submitted a September 2017 vocational rehabilitation specialist’s assessment, which indicated that the Veteran’s CAD prevented him from maintaining gainful employment. In addition, the November 2012 VA examiner indicated that the Veteran’s heart disability impacted his ability to work. The matter is REMANDED for the following actions: 1. Ensure that all outstanding VA treatment records since the February 2017 SOC are associated with the claims file. 2. Then, obtain an addendum opinion from an appropriate VA examiner regarding the nature and etiology of the Veteran’s hepatitis C disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the claims file, the examiner is asked to respond to the following: Provide an opinion as to whether it is more likely than not (50 percent or greater) that the Veteran’s hepatitis C had its onset during service or is otherwise related to it. In doing so, the examiner is specifically asked to explain what risk factors are found in this specific Veteran and why one risk factor is more likely than the other to be the cause of his currently diagnosed hepatitis C. The examiner is asked to specifically address the Veteran’s competent lay reports of exposure to blood in-service as noted in a statement in support of claim VBMS entry on 03/08/2012 as well as the lay reports noted in the November 2012 VA examination report. The examiner should provide a complete rationale for the opinion, whether favorable or unfavorable, and cite to specific evidence of record, as necessary. If the examiner is unable to provide any opinion without resort to speculation, he or she should explain the reasons why an opinion cannot be rendered without resort to speculation. 3. Then, readjudicate the Veteran’s service connection claim for hepatitis C. If he does not meet the schedular criteria for a TDIU, refer his TDIU claim to the Director of Compensation Service or designee for consideration of whether an extraschedular rating is warranted. The Director’s attention is called to the November 2012 VA examination report and the September 2017 (VBMS entry on 11/21/2017) vocational rehabilitation assessment. 4. Thereafter, readjudicate the claims on appeal. ROMINA CASADEI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel