Citation Nr: 20021636 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 12-08 358 DATE: March 26, 2020 ORDER Entitlement to a compensable rating for spontaneous pneumothorax, resolved, history is denied. Entitlement to service connection for change in vocal cords, to include as secondary to the Veteran's service-connected spontaneous pneumothorax, resolved, history is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to the Veteran's service-connected spontaneous pneumothorax, resolved, history is denied. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. Entitlement to a compensable rating for spontaneous pneumothorax, resolved, history could not be established without further examination; the Veteran did not report scheduled VA examinations and did not provide good cause for his failure to report. 2. The probative evidence of record does not reflect a current diagnosis for a disability manifested in a change in the vocal cords. 3. Competent evidence of record does not show that the Veteran’s COPD is etiologically related to service. 4. The Veteran does not meet the schedular criteria for a TDIU, and his service-connected disability does not warrant referral for extraschedular consideration. CONCLUSIONS OF LAW 1. Entitlement to a compensable rating for spontaneous pneumothorax, resolved, history is denied because the Veteran failed to report for his scheduled VA examination without good cause. 38 U.S.C. § 501; 38 C.F.R. § 3.655(b). 2. The criteria for entitlement to service connection for change in vocal cords have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. 3. The criteria for entitlement to service connection for COPD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. 4. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to November 1971 and from December 1973 to November 1975. The Veteran testified before the Board of Veterans’ Appeals (Board) and the undersigned Veterans Law Judge in November 2016. The Veteran’s representative requested an additional hearing before the Board in July 2018 and July 2019. The Board notes “[t]he purpose of a hearing is to receive argument and testimony relevant and material to the appellate issue.” 38 C.F.R. § 20.700(b). The Board further notes that VA regulation explicitly provides that “only one hearing before the Board will be conducted.” 38 C.F.R. § 20.1507(b)(1). Therefore, the Board finds that there is no need for an additional hearing regarding the issues on appeal that are decided herein, as the Veteran has already been provided a hearing for the issues on appeal and decided herein, and he has not provided good cause to warrant a second one. The Board remanded the claims in May 2017. 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 (2017). 1. Entitlement to a compensable rating for spontaneous pneumothorax, resolved, history Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran was originally granted service connection for a spontaneous pneumothorax, resolved, and he was assigned a noncompensable rating. The Veteran contends that he was entitled to a compensable rating. A traumatic chest wall defect, pneumothorax, is rated under 38 C.F.R. § 4.97, Diagnostic Code 6843. Disorders rated under Diagnostic Code 6843 are rated based on the General Rating Formula for Restrictive Lung Disease. Under this formula, a veteran will be rated as 100 percent disabled with Forced Expiratory Volume (FEV-1) less than 40 percent of predicted value, or with the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or with Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or with maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or with cor pulmonale (right heart failure), or with right ventricular hypertrophy, or with pulmonary hypertension (shown by Echo or cardiac catheterization), or with episode(s) of acute respiratory failure, or if the veteran requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6843. A 60 percent rating is warranted where FEV-1 is 40 to 55 percent of predicted, or; FEV-1/FVC is 40 to 55 percent, or; DLCO (SB) is 40- to 55-percent of predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 30 percent rating is warranted where FEV-1 is 56 to 70 percent of predicted, or; FEV-1/FVC is 56 to 70 percent, or; DLCO (SB) is 6 to 65 percent of predicted. A 10 percent rating is warranted where FEV-1 is 71 to 80 percent predicted; FEV-1/FVC is 71 to 80 percent; or where DLCO (SB) is 66 to 80 percent predicted. 38 C.F.R. § 4.97, Diagnostic Code 6843 (2016). Id. The medical evidence does not show a current diagnosis for spontaneous pneumothorax, and a compensable rating is not warranted for the Veteran’s pneumothorax, resolved. Private treatment notes from November 2008 show a diagnosis for COPD, but not pneumothorax. The Veteran was last provided with a VA examination in January 2009. The chest X-ray results were negative for pneumothorax. The examiner only diagnosed the Veteran with COPD. Private treatment notes from March 2010 show a diagnosis for COPD, but not pneumothorax. There has been no evidence of current pneumothorax to warrant a compensable rating throughout the entirety of the period on appeal. The Board notes there has been no current medical evidence added to the record in approximately 10 years; however, the Veteran has not attended multiple VA examinations which could have helped to substantiate the Veteran’s claim. When entitlement to an increase in benefits cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, such a claim shall be denied. 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. Id. The Veteran was scheduled for a VA examination in June 2010. The Veteran did not show, and did not provide evidence of good cause for missing the examination. However, based upon lay evidence of worsening symptoms provided by the Veteran in the November 2016 Board hearing, the Board remanded the claim in May 2017 for a new VA examination. The Veteran once again did not report to an examination scheduled for June 2018. In July 2018, the Veteran called VA and asserted that he was never provided notice for the June 2018 examination. In response, VA scheduled the Veteran for a new examination, and the examinations were cancelled because of the inability to contact the Veteran. The June 2019 supplemental statement of the case (SSOC) noted the cancelled examinations in the “Evidence,” and requested that the Veteran or representative notify the RO if the Veteran had a new mailing address or telephone number. In response to the SSOC, the Veteran’s representative sent correspondence to VA in July 2019 and made no request for a new VA examination. Indeed, although the Veteran had contended that his conditions had worsened and provided lay evidence of symptoms he believed were related to his pneumothorax in the Board hearing, a medical examination was necessary to evaluate the current severity of the Veteran’s symptoms. The January 2009 VA examination failed to show any current diagnosis for pneumothorax, and available medical records show that the Veteran’s current respiratory symptoms were caused by nonservice-connected COPD. The examinations requested were essential to establish entitlement to any increase in benefits, and the Veteran did not report to the examinations on three separate occasions, and did not establish good cause for two of the cancelled examinations. Therefore, under VA regulation, the claim, by law, must be denied under 38 C.F.R. § 3.655(b). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 2. Entitlement to service connection for change in vocal cords The Board has reviewed the Veteran’s record and finds no current diagnosis of a disability manifesting in a change in vocal cords. The Board notes voice hoarseness were noted in a January 2009 VA examination. The Veteran was scheduled for a VA examination in June 2010. The Veteran did not show, and did not provide evidence of good cause for missing the examination. However, based upon lay evidence provided by the Veteran at the November 2016 Board hearing, the Board remanded the claim in May 2017 for a new VA examination. The Veteran once again did not report to an examination scheduled for June 2018. In July 2018, the Veteran called VA and asserted that he was never provided notice for the June 2018 examination. In response, VA scheduled the Veteran for a new examination, and the examinations were cancelled because of the inability to contact the Veteran. The Board would point out that if a veteran wishes help in developing a claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991). This is particularly true in the context of a VA examination. Here, the Veteran has offered no argument or evidence regarding good cause for not attending his examination appointments, or for not rescheduling them. As such, the Board is limited to considering his case on the current record, which, as it stands, is insufficient to establish service connection on any basis. The questions at issue here are complex; the Veteran is not shown to have the training or credentials necessary to address them, and there otherwise exists insufficient medical evidence to place the merits of the claim in equipoise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Veteran’s lay opinion lacks probative value, and there is no evidence of a diagnosed disability. Without evidence of a diagnosed disability, the Board finds no evidence to support entitlement to service connection on a direct or secondary basis. The preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for COPD The Veteran contends that his diagnosed COPD was caused in service. He was afforded a VA examination in January 2009 which diagnosed him with COPD. A new examination was scheduled for June 2010 to provide a nexus opinion. The Veteran did not show, and did not provide evidence of good cause for missing the examination. However, based upon lay evidence provided by the Veteran in the November 2016 Board hearing, the Board remanded the claim in May 2017 for a new VA examination. The Veteran once again did not report to an examination scheduled for June 2018. In July 2018, the Veteran called VA and asserted that he was never provided notice for the June 2018 examination. In response, VA scheduled the Veteran for a new examination, and the examinations were cancelled because of the inability to contact the Veteran. See Wood, 1 Vet. App. at 193. Here, the Veteran has offered no argument or evidence regarding good cause for not keeping his examination appointments, or for not rescheduling them. As such, the Board is limited to considering his case on the current record, which, as it stands, is insufficient to establish service connection on any basis. The questions at issue here are complex; the Veteran is not shown to have the training or credentials necessary to address them, and there otherwise exists insufficient medical evidence to place the merits of the claim in equipoise. See Jandreau, supra. The Board notes that in March 2010 private treatment notes, the history section states the Veteran “has a long history of COPD due to the exercises he had to do in the Army for 5 years.” However, this statement in the medical history cannot be construed as a probative medical opinion because there is no rationale attached to statement. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Veteran’s lay opinion lacks probative value, and there is no probative medical evidence of COPD being related to the Veteran’s military service or his service-connected spontaneous pneumothorax. The preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b). 4. Entitlement to TDIU TDIU is warranted where the evidence shows that the Veteran is precluded from securing or following substantially gainful employment consistent with his education and occupational experience, because of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total and when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided, however, that if there is only one such disability, it must be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Id. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The determination must be made without regard to any nonservice-connected disabilities or the veteran’s advancing age. 38 C.F.R. § 3.341(a). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is currently service connected at 0 percent due to spontaneous pneumothorax. Thus, the Veteran does not meet the schedular criteria for TDIU because he does not have a single disability rated at 60 percent or more, or multiple disabilities with a combined disability rating of 70 percent with one of at least 40 percent. See 38 C.F.R. § 4.16(a). The Board has considered whether referral of the TDIU claim to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted but finds that the weight of the evidence is against the Veteran’s assertion that his service-connected disability renders him unable to secure or follow substantially gainful employment, when considering his educational and work background. During the January 2009 VA examination, the Veteran was not diagnosed with pneumothorax. The Veteran’s private treatment records throughout the period on appeal are negative for diagnoses for pneumothorax. The Veteran reported his occupation as a TV/cable technician, and he retired because he was fed up with the job and he had back pain. The examination did not make mention of any lung disability affecting the Veteran’s employment. Although, the Veteran provided lay evidence of his symptoms he believes are associated with the service-connected disability affecting his employment, there is no current medical evidence of the service-connected disability. The Veteran’s symptoms are associated with COPD, and service connection for COPD is denied in the decision herein. In the February 2010 TDIU application, the Veteran asserted he was unable to work due to lung problems and his lower back. He only reported work history as a truck driver. That said, there is no evidence to support finding the Veteran was rendered unable to secure or follow a substantially gainful occupation as a result of spontaneous pneumothorax. The evidence of record does not establish such pervasive interference with the Veteran’s capabilities as to result in this level of interference with employment. Instead, the lone VA examination fails to show any evidence of pneumothorax. Overall, the Board finds that the evidence of record does not establish that the Veteran’s service-connected disability renders him unable to secure and follow a substantially gainful occupation. Therefore, referral for extraschedular consideration is not warranted, and the claim must be denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. N. Quarles, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.