Citation Nr: 1815161 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 11-21 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a lung/respiratory disorder, to include pulmonary fibrosis (PF) and nonspecific interstitial pneumonia (IP). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Vang, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to October 1968. He died in March 2015 while his appeal was pending at the United States Court of Appeals for Veterans Claims (Court). The appellant is the Veteran's surviving spouse. In a December 2016 letter, the AOJ notified the appellant that she was formally recognized as a substitute claimant in the Veteran's claims for entitlement to service connection for a lung/respiratory disorder and TDIU. These matters come before the Board of Veterans' Appeals (Board) from December 2009 and July 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in September 2013. A transcript of the hearing is associated with the claims file. The appellant was afforded the opportunity to testify at a hearing in September 2017, but did not appear. These claims were previously before the Board. In April 2014, the Board remanded the claims for further development. In November 2014, the Board denied the claim for service connection for a lung/respiratory disorder and remanded the TDIU claim. The Veteran appealed the denial of service connection for a lung disorder to the United States Court of Appeals for Veterans Claims (Court). In July 2016, the Court vacated the Board's November 2014 decision and remanded the lung disorder claim for additional development. In July 2017, the Board remanded the lung disorder claim for additional development. Both claims are properly before the Board. FINDINGS OF FACT 1. The Veteran's lung/respiratory disorder, to include PF and IP, was not incurred in service or caused by service, to include as due to exposure to herbicides. 2. The Veteran's service-connected disabilities did not preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lung/respiratory disorder, to include PF and IP, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The appellant has not referred to deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claims. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the claims file. 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 Veteran 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 claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Lung/Respiratory Disorder In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disorder, 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 evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, veterans who served on active duty within the actual territorial confines of 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 the contrary. 38 C.F.R. § 3.307(a)(6)(iii). For those veterans exposed to an herbicide agent during active air service, certain diseases shall be presumptively service connected, even when there is no record of such disease during service. 38 C.F.R. § 3.309(e). The provisions for presumptive service connection do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that his exposure to herbicides led to the development of the claimed disability after service. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The first Hickson element of service connection is met because Veteran had diagnoses of nonspecific interstitial pneumonia and pulmonary fibrosis, as noted in the medical evidence of record. However, the second and third Hickson elements are not met because there is no evidence of an in-service injury or manifestation, or a medical nexus. The Veteran's June 1968 separation examination and report of medical history are negative for any complaints or findings of a diagnosis or symptoms of a lung disorder. Though service records documented a December 1967 upper respiratory infection, a January 1968 cold, and a July 1967 hospitalization for flu syndrome and fever, the August 2017 examiner noted that there was no evidence of residuals or complications following treatment for these conditions, and no evidence of a diagnosis or treatment for PF or IP while in service or within one year after separation. Of note, the Veteran stated that he was first diagnosed with spots on the lung approximately 15 years after service, in 1983. It is additionally noted for the record that the Veteran's representative stated during the September 2013 hearing that 1983 medical records were irretrievable as the hospital had closed down. Most significantly, the record does not contain any medical evidence linking the Veteran's lung disorder to active service. In a September 2009 VA examination, the Veteran reported that he did not have a lung disorder during service, that there was absolutely no relationship between the disorder and service, and that he had a history of smoking a pack a day for 35 years. The examiner noted that smoking is a recognized risk factor for pulmonary fibrosis. In a July 2011 VA record, a treating clinician noted that it was difficult to determine whether the Veteran's lung problem was secondary to chemical exposures during the Vietnam War because the underlying causes for the disorders were unknown. A March 2013 treating physician raised the possibility of a smoking-induced lung disorder. A June 2014 VA examiner opined that the lung disorder was less likely as not related to service. Additionally, an August 2017 VA examiner opined that the Veteran's lung disorder was less likely than not incurred in or caused by service. The examiner cited to medical literature stating that the precise factors that initiate the histopathologic process for idiopathic pulmonary fibrosis are unknown. The Hickson elements of service connection have not been met as there is no evidence of an in-service event or injury and no evidence of a medical nexus linking the disorder to service. Consequently, service connection is not warranted on this basis. The Veteran has also asserted that his lung disorders are due to exposure to herbicides. In-service herbicide exposure is conceded as service records show that the Veteran had active service in Vietnam. However, lung disorders such as PF and IP are not diseases presumed to be associated with herbicide exposure under 38 C.F.R. § 3.309(e). As such, service connection on a presumptive basis is not warranted. Additionally, the record does not contain evidence establishing a direct nexus between the disorder and herbicide exposure. In June 2014, a VA examiner noted that the lung disorder was less likely as not related to exposure to Agent Orange, and stated that there was no evidence-based medical literature stating that IP and PF are caused by or a result of exposure. In August 2017, a VA examiner opined that the Veteran's lung disorders were less likely than not incurred or caused by herbicide exposure, noting that his opinion was based on a review of the record and the lack of evidence-based literature supporting a link between the lung disorder and Agent Orange exposure. Though the Veteran and the appellant have asserted that the lung disorder is due to herbicide exposure, the Board notes that neither has been shown to possess the expertise to make such a determination. Likewise, the Veteran's representative stated during the September 2013 hearing that there is extensive medical literature supporting a link between the lung disorder and herbicide exposure. However, the record does not contain any evidence of these studies nor does it contain evidence indicating that the representative has the expertise to provide such testimony. In light of the above, service connection due to herbicide exposure is not warranted. In sum, the record does not contain evidence of an in-service injury or medical evidence supporting a link between the lung disorder and active service, to include herbicide exposure. For these reasons, and in the absence of any nexus opinions to the contrary, the Board finds that service connection must be denied. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable here. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). TDIU TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; disabilities affecting a single body system; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Service connection was in effect for: posttraumatic stress disorder at 70 percent disabling effective July 27, 2012; internal derangement of the left shoulder at 20 percent disabling from July 27, 2012; and erectile dysfunction at a noncompensable rating from July 27, 2012. The Veteran's combined evaluation was 80 percent from July 27, 2012. The schedular criteria for TDIU have been met because the Veteran had a single disability rated at 60 percent or more. Turning to the merits of the claim, the Board finds that there is sufficient evidence to adjudicate the claim. The Veteran initially contended that he was unable to work due to his non-service-connected lung/respiratory disorder. See January 2013 VA Form 21-8940; July 2012 VA Form 21-8940. Subsequently, in September 2013, the Veteran contended that his age and combination of disabilities made it impossible to find or sustain gainful employment. The Veteran reported a job history of driving trucks, with his last full-time job ending in 2008. He also reported that he owned his company for approximately 10 years in the 1970s. His highest level of education consisted of two years of high school. In April 2009 and September 2011 VA treatment records, the Veteran reported that he occasionally hauled furniture once a week with his truck, but had to stop due to shortness of breath. In a September 2009 examination, the Veteran reported to a VA examiner that the only reason why he stopped working was due to shortness of breath. In an October 2011 VA treatment record, the Veteran stated that he could not tolerate working with others, that he began driving independently in the 1970s, and that he preferred to remain relatively isolated from other people. In a January 2014 VA examination, the Veteran reported that he was unable to continue working due to his shoulder, and that he retired at the age of 62 and began collecting social security retirement benefits. Records have not been obtained from the Social Security Administration, but the Board finds that remand would be unnecessary as the Veteran reported that he was receiving retirement benefits, and not disability benefits. Having reviewed the record, the Board finds that the weight of the evidence does not demonstrate that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. Though the January 2013 VA examiner noted that the Veteran would be unable to continue hauling furniture or driving a truck due to his shoulder pain, he found that the Veteran was still capable of sedentary work. Additionally, though the Veteran alludes to occupational impairment due to his service-connected PTSD by reporting that he could not tolerate working with others, the Board notes that any impairment due to PTSD did not appear to impact his work performance. Indeed, the Veteran reported in January 2014 that he had no history of disciplinary issues at work, no history of fights, and was never terminated from a job. Notably, the record contains multiple instances in which the Veteran stated that he retired from his last job due a combination of his non-service-connected lung disorder and his age. In determining entitlement to TDIU, neither the Veteran's non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a). While the Veteran's service-connected disabilities may result in some occupational impairment, the weight of the evidence of record does not demonstrate that the Veteran's service-connected disabilities precluded him from securing or following substantially gainful occupation, to include a sedentary job. Accordingly, the criteria for a TDIU have not been met or more nearly approximated. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a lung/respiratory disorder, to include pulmonary fibrosis and nonspecific interstitial pneumonia, is denied. Entitlement to TDIU due to service-connected disabilities is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs