Citation Nr: 21001050 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 12-29 014 DATE: January 6, 2021 ORDER A 40 percent rating, but no more, for peptic ulcers is granted. Service connection for a chronic respiratory disorder is denied. A total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran had active service from October 1957 to February 1963. 2. Peptic ulcers have been manifested by subjective complaints of nighttime burning in the stomach, daily pain, weekly vomiting, and melena; objective findings include monthly abdominal pain relieved by therapy and moderate symptoms such as vomiting occurring four or more a year with episodes lasting less than a day. 3. A chronic respiratory disorder, diagnosed as emphysema, was not shown in service, is not causally or etiologically related to service, and was not caused by or permanently worsened in severity by a service-connected disability. 4. The Veteran is service connected for asthma at 60 percent, peptic ulcers now at 40 percent, and hearing loss at 10 percent; his service-connected disabilities have not rendered him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no more, for peptic ulcers have been met. 38 U.S.C. §§ 1131, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 7306 (2020). 2. A chronic respiratory disorder was not incurred in service and is not proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2020). 3.The criteria for a TDIU have not been met. 38 U.S.C. §§ 5103(a), 5103A, 5107 (2012); 38C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The claims were denied by the Board in 2019. The Veteran appealed to the Veterans’ Claims Court. In August 2020, the Court Clerk vacated the Board’s decision in a Joint Motion for Remand (JMR) and remanded the claims for additional development. Increased Rating for Peptic Ulcers Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. §§ 4.1. Separate diagnostic codes identify the various disabilities. The Veteran is in receipt of a 20 percent rating under DC 7306 for peptic ulcers. Under DC 7306, a 40 percent rating is warranted when symptoms are moderately severe with intercurrent episodes of abdominal pain at least once a month partially or completely relieved by ulcer therapy, mild and transient episodes of vomiting or melena. A 60 percent rating is warranted when symptoms are severe, same as pronounced with less pronounced and less continuous symptoms with definite impairment of health Turning to the evidence, in an October 2008 clinical record, the Veteran denied nausea, vomiting, and melena; however, in March 2009, he stated that peptic ulcer symptoms “come and go” and that he was told they were due to prednisone use. Upon examination, he reported daily pain, nausea, weekly vomiting, and melena. In June 2012, he reported to a VA facility with complaints of exacerbation of asthma. Upon examination, no gastrointestinal issues were reported. In an August 2012 VA examination, the Veteran complained of burning in the stomach at night that resolved itself in the day. Upon examination, he was noted to experience symptoms such as vomiting that were not severe. The duration of these symptoms was determined to be four or more times a year with each episode lasting less than one day. Further, the examiner found that the Veteran experienced monthly abdominal pain relieved by therapy. In August 2013, the Veteran’s primary care physician reported a duodenal ulcer but stated that it was due to prednisone use and was asymptomatic. Further, in a December 2016 VA examination, the examiner determined that the Veteran showed no signs or symptoms of peptic ulcer disease. The examiner also noted that medical records from 2009 to the present were without a remote or current diagnosis of peptic ulcer disease. In December 2017, the Veteran reported chronic abdominal pain for the last two years. The severity of his symptoms was not determined. He reported it again in a May 2018 but denied abdominal pain or melena in July 2018. Based on the above, the medical evidence supports a 40 percent rating, but no more, for peptic ulcers. In this regard, the medical evidence showed that the Veteran experienced monthly abdominal pain relieved by therapy and vomiting four times a year. The medical evidence does not support a 60 percent rating, as the evidence did not show that the gastrointestinal symptoms were severe. Therefore, the medical evidence supports a 40 percent rating, but no more, for peptic ulcers. Service Connection for a Chronic Respiratory Disorder The Veteran contends that emphysema was incurred in service or in the alternative is related to service-connected asthma. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Turning to direct service connection, the Veteran was first diagnosed with emphysema in December 1974. Most recently, it was shown in January 2005. Therefore, a current disorder has been shown, and the first element of direct service connection is met. As to in-service incurrence, a February 1959 service treatment record (STR) reflects that the Veteran reported experiencing shortness of breath and continued to report shortness of breath throughout service. Despite these symptoms, a November 1962 in-service examination showed no evidence of emphysema. Therefore, the second element of service connection, an in-service incurrence, is not present. (Parenthetically, the Board notes that he is already service-connected for asthma.) To the extent that the Veteran asserts that emphysema began in service, in an October 2014 VA examination, the examiner found that the evidence did not show that the Veteran ever had chronic obstructive pulmonary disease (COPD) or emphysema in service. This evidence weighs against the claim. There is no contradictory medical opinion. Therefore, the medical evidence does not support the claim for direct service connection. Turning to secondary service connection, the Veteran has a current diagnosis of emphysema and is service connected for asthma. Therefore, the first two elements of secondary service connection have been met. As to nexus, in the October 2014 VA examination, the examiner wrote that emphysema was not related to asthma. The examiner reasoned that they were separate medical conditions with different etiology. The examiner further opined that asthma did not aggravate beyond normal progression COPD or emphysema. The examiner also found no evidence of COPD or emphysema as the pulmonary function tests were normal. This evidence weighs against the claim. There is no contradictory medical opinion. As reflected in the JMR, the Board acknowledges that despite the October 2014 VA examiner’s report that the Veteran did not have emphysema, the Veteran was diagnosed with emphysema in 2005. However, although he was diagnosed with emphysema, the October 2014 VA examiner noted that emphysema and asthma were two separate disorders. Therefore, even though he has been diagnosed with emphysema, the medical evidence does not support his contention that emphysema is related to service connected asthma on a secondary basis. The Board has considered the Veteran’s lay statements that a chronic respiratory disorder began in service and/or is related to a service connected disability. While he is competent to report symptoms because this requires only personal knowledge as it came to him through his senses, he is not competent to offer an etiology of this disorder. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim and there is no doubt to be otherwise resolved. As such, the appeal is denied. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38C.F.R. §4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The record reflects that the Veteran is rated for asthma at 60 percent, peptic ulcers at 40 percent, and hearing loss at 10 percent. The combined rating is 70 percent and he meets the threshold percentage requirements under the provisions of 38C.F.R. § 4.16(a) even without considering the higher rating for peptic ulcers. Therefore, the question is whether the service-connected disabilities result in unemployability. Relevant factors include employment and educational background. In this case, the Veteran has a high school diploma with special training in cosmetology. He last worked full time as a letter carrier in 1976 but held part time jobs since then. In the June 2011 TDIU application, he wrote that he became too disabled to work in September 2005. Turning to the medical evidence, in a March 2009 VA examination, the clinician determined that peptic ulcers did not preclude employment. Similarly, an August 2012 VA examiner determined that there was no objective evidence of peptic ulcers and that they would not preclude employment or occupational duties. In a December 2016 VA examination, the clinician wrote that the Veteran’s peptic ulcers would not preclude him from seeking and maintaining employment opportunities. As to asthma, the March 2009 examination found no objective evidence that would preclude sedentary or light physical activities. Specifically, the Veteran talked almost continuously throughout the examination and was not noted to have shortness of breath. In the August 2012 VA examination, the Veteran reported becoming short of breath if he over-exerted or worked in the heat. Upon examination, the examiner stated that asthma did not preclude employment. During the examination, the Veteran was observed to have walked at a brisk pace within 50 feet from the waiting room and talked non-stop without shortness of breath. Further, an October 2014 VA examiner stated that asthma may restrict employment that required exposure to chemicals in the air but did not express that the Veteran was unemployable, only that he could not work in an area with toxic exposure in the air. In a December 2016 VA examination, the clinician wrote that asthma would not preclude the Veteran from seeking and maintaining employment opportunities. As to hearing loss, in a July 2012 VA examination, the clinician determined that it would impact the Veteran’s ability to work, as he reported that his hearing aids fell out and did not function properly. While this evidence suggests that there would be an impact on employment, it does not indicate functional impairment to the level to cause unemployability. Next, in December 2009, the Veteran submitted a lay statement from his former supervisor who wrote that his employment duties included picking up office machines and delivering replacements. She reported that he had difficulties lifting and walking with the equipment and could hardly carry on a conversation without stopping to catch his breath. This prompted the employer to hire an assistant to help him with the lifting and moving of the equipment. This evidence indicated that his employment difficulties were primarily related to lifting and carrying heavy equipment but did not suggest that he could not work in a less physically stressful environment. The August 2012 examiner also determined that lifting and carrying more than five pounds was feasible and that the Veteran could work at a job that was not physically stressful. Based on the above, looking at the disability picture as a whole, the evidence does not support a finding that the Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. Therefore, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ragofsky, Attorney Advisor 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.