Citation Nr: 1808498	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  10-39 530	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD) and asbestosis, and to include as due to exposure to herbicides.  

2.  Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 15, 2009.


REPRESENTATION

Veteran represented by:	Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

Ryan Frank, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Navy from July 1970 to June 1980, including service in the Vietnam War.  

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  In the August 2009 rating decision, in pertinent part, the RO denied service connection for COPD, the Veteran's request to reopen his previously denied claim for service connection for asbestosis or other lung disease resulting from asbestos exposure, and a TDIU.  

In a March 2014 decision, the Board recharacterized the respiratory issue on appeal as a respiratory disability to include asbestosis and COPD and granted the Veteran's request to reopen the claim.  

These issues were previously remanded by the Board in March 2014 and March 2016.  

The Veteran's overall disability rating is 100 percent on and after May 13, 2014.  In a February 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted a TDIU from September 15, 2009 to May 12, 2014 based solely on his PTSD.  The issue of entitlement to a TDIU prior to that date remains on appeal.  

In August 2017, the Board referred the Veteran's claim for an expert medical opinion by a Veterans Health Administration (VHA) physician.  See 38 U.S.C. § 7109 (2012); 38 C.F.R. § 20.901 (2017).  The VHA physician provided an opinion in November 2017.  VA referred the opinion letter to the Veteran and his representative for review and allowed 60 days for the submission of any additional evidence or argument.  The Veteran responded in December 2017 that he had no additional evidence to submit and requested immediate adjudication.  A copy of the VHA letter has been associated with the claims file.  

The issue of entitlement to a TDIU prior to September 15, 2009 is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

The preponderance of the evidence is against finding that the Veteran has a diagnosis of a respiratory disability, including COPD and asbestosis, currently or at any time during the pendency of the claim.


CONCLUSION OF LAW

The criteria for establishing service connection for a respiratory disability, including COPD and asbestosis, have not been met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor his representative have raised any issue 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 may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability.  See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  

VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicides unless there is affirmative evidence to establish that the veteran was not exposed.  38 C.F.R. § 3.307(a)(6)(iii).  

Certain diseases are deemed associated with herbicide exposure under current law. The list of those diseases does not include COPD.  38 C.F.R. § 3.309 (e).  The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  In other words, the fact that a veteran does not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a direct basis.

The Veteran seeks service connection for a respiratory disability, including COPD, as a result of exposure to herbicides, asbestos, or secondhand smoke during his active duty service.  Because the Veteran's service records indicate service in the Republic of Vietnam during the Vietnam War, he is presumed to have been exposed to herbicides.  38 C.F.R. § 3.307.  

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. § 1110.  Thus, the threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran actually had the disability for which service connection is sought at any time during the period on appeal.  In the absence of proof of a disability during that period, there is no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997).  The period on appeal began in February 2009, when VA received the Veteran's request to reopen his claim for service connection.  

An October 2008 VA treatment record notes a chest x-ray with an impression of  "COPD changes and old granulomatous disease."  A November 2008 addendum to this record clarified that the "old granulomatous disease" finding "means prior exposure to tuberculosis, which in the past was a more common illness than what it is now." 

The Veteran was afforded a VA examination in June 2014.  The examiner noted the Veteran's November 2008 diagnosis of COPD.  The examiner found no evidence of asbestosis or a diagnosis of asbestosis.  The examiner noted that chest x-rays over the past 3 years were consistent with COPD and opined that the old granulomatous disease was as likely as not related to past exposure to tuberculosis and was inactive.  The examiner did not diagnose any respiratory disability other than COPD and the only basis cited for the COPD diagnosis was chest x-rays.  

The Veteran was afforded an additional VA examination in July 2016.  The examiner noted the 2008 diagnosis of COPD.  The examiner noted that multiple chest x-rays had shown COPD.  The examiner found no evidence of asbestosis.  The examiner did not diagnose any respiratory disability other than COPD and the only basis cited for the COPD diagnosis was chest x-rays.  

In November 2017, a VHA pulmonary physician reviewed the available medical records and found that there was not enough evidence to prove the Veteran has COPD.  The VHA pulmonary physician opined that it "is not possible to diagnose COPD based on chest X ray (CXR) alone" and that, while it is possible for a radiologist or physician to note that lung fields "appear hyper-expanded, consistent with hyperinflation, that is often seen in COPD," "this cannot confirm COPD."  The VHA pulmonary physician described the diagnostic criteria for COPD as set forth by the Global Initiative for Chronic Obstructive Lung Disease (GOLD), which are based on pulmonary function test (PFT) results.  The VHA pulmonary physician listed the most recent PFT results and found that they were in the normal range and did not demonstrate obstructive airway disease.  The VHA pulmonary physician found that the Veteran "has no symptoms supportive of a COPD diagnosis," "is receiving no treatments for COPD (because of a lack of symptoms), has no physical exam findings of COPD, and has no PFTs in his chart demonstrating COPD."  For these reasons, the VHA pulmonary physician "would not diagnose [the Veteran] with COPD."  The VHA pulmonary physician went on to provide speculative nexus opinions in the event that the Board found the Veteran had COPD; because the Board finds that the VHA pulmonary physician's opinion that the Veteran does not have COPD to be the most probative evidence of record.  Therefore there is no need for the Board to discuss this speculation.  

The Veteran is competent to report on matters observed or within his personal knowledge.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  The Veteran in this case is not shown to possess any pertinent medical training or expertise that would make him competent to diagnose himself with COPD, asbestosis, or any other respiratory disability.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Thus, the Veteran's opinion that he has COPD or asbestosis is not a competent medical opinion and it cannot be assigned any probative weight.  Rather, the medical findings and opinions of trained medical professionals warrant greater probative weight than the Veteran's lay contentions.  

The VHA pulmonary physician has thoroughly and convincingly explained that a diagnosis of COPD requires specific PFT results and that the Veteran's PFT results during the period on appeal have not met the necessary thresholds for a diagnosis.  The Board acknowledges that VA treatment providers and examiners have diagnosed the Veteran with COPD, but all of these diagnoses are based solely on chest x-ray results, which the VHA pulmonary physician convincingly explained are not a basis for a diagnosis of COPD.  None of the VA treatment providers or examiners included any reasoning to explain how a chest x-ray would be an appropriate basis for a diagnosis of COPD.  Because "most of the probative value of a medical opinion comes from its reasoning," these diagnoses are therefore of less probative value than the VHA pulmonary physician's opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

Upon review of the lay and medical evidence of record, the Board concludes that the Veteran is not entitled to service connection for a respiratory disability.  As the evidence does not establish that the Veteran had a diagnosis of COPD, asbestosis, or any other respiratory disability during the period on appeal, the Board finds that service connection is not warranted.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,"); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (holding that the Board must address recent pre-claim evidence in assessing whether a current disability exists, for purposes of service connection, at the time the claim was filed or during its pendency). 

In reaching the conclusions above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for a respiratory disability is denied.


REMAND

VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.

The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the purposes meeting the requirement of one 60 percent disability or one 40 percent disability.  38 C.F.R. § 4.16 (a).

The criteria for consideration of a schedular TDIU prior to September 15, 2009 are not met.

If a veteran does not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16 (a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225  (1993). 

The Veteran was afforded a Social and Industrial Survey (SIS) in July 2016.  The examiner opined that the Veteran's "disabilities have had profound and detrimental effects on his ability to maintain employment" due to a "long time pattern, that began after Vietnam combat experiences, of being distrustful of authority and other people."  The examiner added that the Veteran "has had challenges maintaining employment throughout adulthood and finally retired after his 2nd psychiatric hospitalization for PTSD and depression."  The AOJ's February 2017 grant of a TDIU, effective September 15, 2009, was "based on PTSD."  Thus, there is evidence that suggests he may have been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to September 15, 2009.  38 C.F.R. § 4.16 (b).  A remand for referral to consider an extraschedular TDIU is warranted.

Accordingly, the case is REMANDED for the following action:

1.  Refer the Veteran's TDIU claim to the Director of the Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis, pursuant to 38 C.F.R. § 4.16 (b).

2.  Readjudicate the claim.  If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board.  

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs