Citation Nr: 21000499 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-18 907 DATE: January 5, 2021 ORDER Service connection for emphysema is denied. Service connection for COPD is denied. Service connection for residuals of high fever to include a compromised immune system is denied. Service connection for a sleeping disorder to include obstructive sleep apnea (OSA) is denied. Service connection for hypertension is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that emphysema began during active service or are otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that COPD began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence of record is against finding that the Veteran had a disability that manifested with high fevers and/or a compromised immune system at any time during or proximate to the pendency of the claim. 4. The preponderance of the evidence is against finding that OSA began during active service or is otherwise related to an in-service injury or disease, to include as secondary to service-connected disabilities. 5. The preponderance of the evidence is against finding that hypertension began during active service or is otherwise related to an in-service injury or disease, to include as secondary to service-connected disabilities. 6. The Veteran’s service-connected disabilities have been rated as 100 percent disabling effective June 22, 2015. The Veteran’s TDIU claim was received in February 2016. CONCLUSIONS OF LAW 1. The criteria for service connection for emphysema have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for service connection for chronic obstructive pulmonary disease COPD have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 3. The criteria for service connection for residuals of high fevers, to include a compromised immune system, have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 4. The criteria for service connection for a sleeping disorder, to include obstructive sleep apnea (OSA), have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 5. The criteria for service connection for hypertension have not been satisfied. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 6. The claim for TDIU is moot and must be dismissed as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1961 to April 1965. The appellant is the Veteran’s surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board issued a decision addressing these issues in January 2019. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), but then passed away in August 2019. No party had been substituted for the Veteran. Consequently, in March 2020, the Court dismissed the appeal for lack of jurisdiction. The Court also vacated the Board’s January 2019 decision. Substitution has now been granted, and the appellant continued the appeal. These matters were remanded in August 2020 for further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension, as a cardiovascular-renal disease, is a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b). Additionally, where a Veteran served ninety days or more of active service, and certain chronic diseases, such as hypertension, 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, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumptive 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. Id. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for emphysema and COPD is denied. The Veteran contended that he was exposed to asbestos during service and that this exposure directly caused his emphysema and COPD disabilities. Private treatment records indicate the Veteran demonstrated “early emphysema” in July 1999 and was assessed as having COPD due to smoking in February 1992. Service treatment records do not include any complaints, diagnoses, or treatments of either condition during service. The Veteran’s April 1965 respiratory evaluation at separation was clinically normal. The Veteran submitted personal statements, lay statements from fellow service members, and internet articles to corroborate his contention that he was exposed to asbestos during service. The Veteran and service members R.D. and J.N. recall sweeping asbestos from the deck, working with and sleeping under pipes covered in asbestos lining, and conducting repairs on ships which used asbestos material throughout the ship, including the barracks. The internet articles detail the use of asbestos in ships made after World War 2. The Veteran is credible in his report of experiences of exposure to asbestos and the evidence is consistent with the places, types and circumstances of his service. Therefore, his exposure to asbestos during service is recognized. See 38 U.S.C. § 1154(a). At the September 2016 VA medical examination, the examiner reviewed the Veteran’s entire claims file and opined that the Veteran’s emphysema and COPD were less likely than not incurred in or caused by service because there was no evidence in the Veteran’s service treatment records of a diagnosis or treatment for the conditions during service, and that the medical records did not indicate the Veteran demonstrated asbestosis or asbestos-related pleural disease. The examiner noted that the number one risk factor for emphysema and COPD was cigarette smoking, and that the Veteran was a long-time cigarette smoker. In March 2017, a different examiner reviewed the Veteran’s entire claims file, noting the Veteran’s emphysema diagnosis in 2000 and his lung cancer diagnosis in January 2014. The examiner also noted that although the Veteran’s lung cancer was due to his asbestos exposure, his COPD was due to his cigarette smoking and post-service occupational exposure as a welder. He stated that although COPD can be a complication of asbestosis, the Veteran did not demonstrate asbestosis. The preponderance of the evidence is against finding service connection for emphysema and COPD. There is no probative medical evidence that indicates that the Veteran’s emphysema or COPD were incurred in service, to include due to asbestos exposure. The Veteran and the appellant believe his COPD and emphysema were related to an in-service injury, event, or disease. They are not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran and the appellant because the record does not show that they have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiners as well as the private examiners. Because the Veteran’s emphysema and COPD disabilities were not incurred in service, the claims for service connection are denied. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection for residuals of high fever to include a compromised immune system is denied. The Veteran contended that he had a disability that was manifested by high fevers and a compromised immune system as secondary to the treatment of his service-connected lung cancer disability or due to his other comorbid respiratory disabilities for which he sought service connection. Because the Board has denied the Veteran’s claims for service connection for emphysema and COPD, the Board will restrict its analysis of secondary service connection to the Veteran’s lung cancer disability only. At the March 2017 VA medical examination, the examiner noted that although chemotherapy is known to cause an immunocompromised state due to the nature of chemotherapy, the Veteran’s medical records showed “no evidence” of a disability that manifested with high fevers and/or an immunocompromised state. The claim for service connection is denied. There is no probative medical evidence that indicates the Veteran demonstrated a disability that was manifested by high fevers and/or a compromised immune system. Without a current disability, there can be no claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof of a present disability there can be no valid claim.”). As the Veteran did not demonstrate a disability, the claim for service connection is denied. Service connection for a sleeping disorder to include obstructive sleep apnea (OSA) is denied. The Veteran contended that his OSA disability was directly caused by his service, to include asbestos exposure, or alternatively by his service-connected lung cancer disability and/or his other comorbid respiratory disabilities. Because the Board has denied the Veteran’s claims of service connection for emphysema and COPD, the Board will restrict its analysis to direct service connection and secondary service connection due to the Veteran’s lung cancer disability only. Obstructive sleep apnea (OSA) is a specific medical condition defined as the “cessation of breathing resulting from the collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM sleep.” See Dorland’s Illustrated Medical Dictionary 116-17 (32nd ed. 2012). The Veteran was diagnosed with obstructive sleep apnea in October 2000. The service treatment records do not include any complaints, diagnoses, or treatments for sleep-related symptoms, such as breathing difficulty during sleep, heavy snoring, or daytime fatigue. As noted above, the Veteran’s April 1965 respiratory evaluation at separation was normal. The September 2016 VA examiner opined the Veteran’s OSA was less likely than not caused by the Veteran’s exposure to asbestos because the Veteran did not demonstrate asbestosis or asbestos-related pleural disease. The March 2017 examiner added that the Veteran’s lung cancer did not cause or permanently aggravate the Veteran’s OSA because OSA is a condition of the upper airway soft tissues and lung cancer is a disease of the lung parenchyma and does not affect soft tissue in the upper airway. The preponderance of the evidence is against finding service connection for OSA. There is no probative medical evidence that the Veteran’s OSA disability was incurred in service or caused or aggravated by his service-connected lung cancer disability. The Veteran and the appellant have asserted throughout the appeal that his OSA disability is a result of in-service asbestos exposure or alternatively because of his service-connected lung cancer disability. As noted above, the Veteran and the appellant are competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis, but they are not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his OSA diagnosis and its relationship to his service or other respiratory disabilities. Because the Veteran’s OSA disability was not incurred in service or related to a service-connected disability, the claim for service connection is denied. Service connection for hypertension is denied. The Veteran contended that his hypertension disability was caused by his service-connected lung disability, to include treatment, or alternatively by his other comorbid respiratory disabilities. Because the Board has denied the Veteran’s claims for service connection for emphysema and COPD, the Board will restrict its analysis to direct service connection and secondary service connection due to the Veteran’s lung cancer disability only. “Hypertension” refers to persistently high arterial blood pressure. Medical authorities have suggested various thresholds ranging from 140 mm Hg systolic and 90 mm Hg diastolic to as high as 200 mm Hg systolic and 110 mm Hg diastolic as reflective of hypertension. See Dorland’s Illustrated Medical Dictionary, 896 (32nd ed. 2012). Similarly, for VA rating purposes, the term “hypertension” means that the diastolic blood pressure is predominantly 90 mm Hg or greater. The term “isolated systolic hypertension” means that the systolic blood pressure is predominantly 160 mm Hg or greater with a diastolic blood pressure of less than 90 mm Hg. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. The Veteran was diagnosed with hypertension in December 1998. Blood pressure readings taken during service do not indicate the Veteran demonstrated the onset of hypertension in service. His blood pressure reading at the April 1960 enlistment examination was 120/70, and it was 128/60 at his April 1965 separation examination. At the March 2017 VA medical examination, the examiner reviewed the Veteran’s entire claims file and opined the Veteran’s hypertension was not caused or aggravated by his lung cancer, to include treatment, because the Veteran was diagnosed with hypertension prior to the Veteran’s development and treatment of lung cancer, and that there was “no evidence” the Veteran’s lung cancer treatment had permanently aggravated his hypertension beyond the natural progression of the disease. The preponderance of the evidence is against finding service connection for hypertension. There is no probative medical evidence that indicates the Veteran’s hypertension disability was incurred in service, diagnosed within the presumptive period after service, or caused or aggravated by the Veteran’s service-connected lung cancer disability. The Veteran and the appellant have has asserted throughout the appeal that his hypertension disability is a result of his service-connected lung cancer disability. As noted above, the Veteran and the appellant are competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis, but they are not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his hypertension diagnosis and its relationship to his respiratory disabilities. Because the Veteran’s hypertension disability was not incurred in service, diagnosed within the presumptive period after discharge, or related to a service-connected disability, the claim for service connection is denied. A total disability rating based on individual unemployability (TDIU) is denied. The Veteran filed his claim for a TDIU in February 2016. In a March 2017 rating decision, the RO granted service connection for lung cancer and assigned a 100 percent rating effective June 22, 2015. A 100 percent schedular rating is a higher benefit than TDIU; thus, in general, when a 100 percent rating has been granted, a TDIU claim is moot. This is not universally true, however, as recognized by the Court in Bradley v. Peake, 22 Vet. App. 280 (2008). In that case, it was held that where TDIU could be granted based on a disability other than the one rated at 100 percent disabling, there would be no duplicate counting of disabilities for both the TDIU and the schedular total rating to remain in effect. Here, the Veteran had service-connected disabilities other than lung cancer. His tinnitus was service connected (and evaluated as 10 percent disabling), and his hearing loss was service connected (and evaluated as 0 percent disabling). These disabilities have not been shown to have rendered the Veteran unemployable. It is clear from the facts of this case that the TDIU is predicated on the disability rated at 100 percent disabling (lung cancer). As such, in this instance the 100 percent schedular award moots the TDIU claim from June 22, 2015, forward. Accordingly, the claim for TDIU from must be dismissed as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.