Citation Nr: 21003901 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 12-02 592 DATE: January 25, 2021 ORDER 1. New and material evidence having been received, the claim of service connection for a respiratory disorder is reopened. 2. An effective date of June 20, 2013, for the award of service connection for left upper lobe granulomatous infection with pulmonary nodule, is granted. 3. A total disability rating based on individual unemployability (TDIU) prior to April 15, 2008 is denied. REMANDED Service connection for a respiratory disorder. FINDINGS OF FACT 1. The Veteran filed the original claim of service connection for a left lung pulmonary nodule on June 20, 2013. 2. Prior to April 15, 2008, the Veteran was not prevented from securing and following substantially gainful employment as a result of the service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an effective date of June 20, 2013, but no earlier, for the award of service connection for left upper lobe granulomatous infection with pulmonary nodule, are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. 2. The criteria for a TDIU prior to April 15, 2008 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to March 1978, and from May 20, 2003 to May 30, 2003. This matter is on appeal from January 2010 and May 2015 rating decisions. In July 2012, the Veteran testified at a video conference hearing before a Veterans Law Judge who is no longer employed by the Board. The transcript of that hearing is of record. The Veteran did not respond to Board notice in August 2015 of his right to an additional hearing and his request for a Board hearing is considered to have been satisfied. Most recently, the Board remanded the claims for additional development in September 2020. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. New and Material Evidence 1. Whether new and material evidence was submitted to reopen a claim of service connection for a respiratory disorder. By a September 2008 rating decision, a claim of service connection for chronic obstructive pulmonary disease (COPD) and bronchitis, claimed as breathing problems, was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, within one year of the September 2008 decision, the Veteran submitted additional evidence and a request for service connection for shortness of breath in September 2009. By a January 2010 rating decision, service connection for COPD and bronchitis was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. No new evidence or notice of disagreement was received by VA within one year of the issuance of the January 2010 rating decision. As the Veteran did not appeal the decision, the January 2010 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Subsequently, another claim for service connection for asthma and breathing problems was received in July 2012. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for a respiratory disorder is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Private Treatment Records submitted in May 2013; February 2020 Correspondence; March 2020 Correspondence. II. Service Connection Effective Date 2. An effective date prior to July 30, 2013 for the award of service connection for left upper lobe granulomatous infection with pulmonary nodule. Legal Criteria Generally, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2)(i). Analysis The Veteran is seeking an effective date prior to July 30, 2013 for service connection for left upper lobe granulomatous infection with pulmonary nodule. In a June 20, 2013 correspondence, the Veteran reported that an x-ray from the prior month indicated he had a solitary pulmonary nodule and malignant neoplasm in the left lung. He also reported experiencing chemical exposures due to service. On July 30, 2013, the RO received a statement from the Veteran requesting service connection for solitary pulmonary nodule and malignant neoplasm. Also on July 30, 2013, the Veteran submitted a report of May 2013 chest imaging from a private treatment facility that noted the presence of a solitary pulmonary nodule. In a January 2016 notice of disagreement (NOD), the Veteran requested an earlier effective date and noted that the condition predated the assigned effective date. During a February 2020 RO hearing, the Veteran reported that this condition was diagnosed at a university hospital prior to July 2013 by physicians who also work at a VA hospital. The Veteran was afforded a respiratory examination in April 2015. The examiner reported a 2013 diagnosis of pulmonary nodule in the left lung upper lobe and granulomatous lung disease. The examiner noted that a May 8, 2013 chest scan showed a left upper lobe nodule and old granulomatous disease. The examiner denied the presence of any pertinent physical findings, complications, conditions, signs, or symptoms related to the diagnosed conditions. The examiner explained that the Veteran’s left lung nodule is benign and that granulomas are small areas of inflammation in lung tissue that typically cause no signs or symptoms and are found incidentally on a chest x-ray done for another reason. The examiner also explained that that the causes of benign lung tumors are poorly understood, and granulomas are often the result of an infection. The examiner attributed these conditions to the Veteran’s Gulf War service. In a May 2015 rating decision, the RO granted service connection for left upper lobe granulomatous infection with pulmonary nodule effective July 30, 2013. The Board finds that an effective date of June 20, 2013, but no earlier, is warranted. The Veteran’s statement submitted on such date can be construed as an informal claim because it is a written communication that identified the claimed condition and indications that it may be related to service. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). However, there was no earlier claim filed for such condition. While the Veteran has had a July 2012 claim of service connection for asthma and chronic breathing problems pending, and remanded below as a claim for a respiratory disorder, the medical evidence does not show, and the Veteran has not indicated, that the claimed respiratory symptoms are caused by, or symptoms of, the left upper lobe granulomatous infection with pulmonary nodule problems. In this regard, the presence of left upper lobe granulomatous infection with pulmonary nodule was not diagnosed until a May 8, 2013 chest scan. In addition, the April 2015 examiner explained that these conditions are typically asymptomatic and found that they do not result in any pertinent physical findings, complications, conditions, signs, or symptoms. Furthermore, the Veteran filed a separate claim for this issue in July 2013, indicating that he did not believe that this condition was within the scope of the July 2012 claim. Thus, the left upper lobe granulomatous infection with pulmonary nodule cannot reasonably be considered within the scope of the July 2012 claim for asthma and chronic breathing problem. See Sellers v. Wilkie, 965 F.3d 1328, 1338 (Fed. Cir. 2019). In the absence of a relationship between the service-connected left upper lobe granulomatous infection with pulmonary nodule and respiratory dysfunction, there was no claim filed for such disability prior to June 20, 2013. The Board notes that the Veteran has stated the condition was diagnosed prior to such date by a physician at a private facility who also works for VA. However, diagnosis of a condition at a private facility by a physician that also works for VA, in the absence of the filing of a claim, is insufficient to establish an earlier effective date. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Therefore, in this case, the initial claim for the service-connected condition was received on June 20, 2013. The preponderance of the evidence shows that the Veteran filed the original claim of service connection for a left lung pulmonary nodule on June 20, 2013. Therefore, an effective date of June 20, 2013 is warranted, however, the benefit-of-the-doubt doctrine is not further applicable, and an even earlier effective date is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). II. TDIU Effective Date 3. TDIU prior to April 15, 2008. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 60 percent or more, and 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 combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. In addition, 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 totally disabled. Therefore, rating boards should submit to the Director for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director’s decision in the first instance before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Analysis The Veteran is seeking a TDIU prior to April 15, 2008. In a March 2009 TDIU application, he reported being unable to work due to breathing problems, severe joint pain, difficulty walking and using stairs, and lack of sleep. He also reported last working fulltime in September 2006, and last working part time in April 2008. He further reported working as a pilot, graduating college, and applying for federal government jobs. In an August 2010 correspondence, he reported last having gainful employment in September 2006. During the July 2012 Board hearing, the Veteran reported serving as head of security for an airline in addition to his career as a pilot. He also reported that his part time employment following his last fulltime job was only for a few days. The file includes a letter from the Veteran written to a United States Senator in July 2007. The Veteran reported that he was forced to stop flying for his last fulltime employer due to a government mandated age rule. The file also includes a resume associated with the file in April 2008. The Veteran reported having a Bachelor of Science degree in aeronautical science and holding command positions overseeing operational groups during service. Prior to April 15, 2008, the Veteran was service connected for frontal and maxillary sinusitis, rated 30 percent disabling; left upper extremity radiculopathy, rated as 30 percent disabling; cervical spine degenerative disc disease, rated as 20 percent disabling; a left knee injury, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; hearing loss, rated as noncompensably disabling; and inguinal hernia repair residuals, rated as noncompensably disabling. The Veteran was afforded audiometric and hernia examinations in October 2007. The audiometric examiner diagnosed the Veteran with bilateral hearing loss and tinnitus. The examiner reported his speech recognition scores were 100 percent in both ears. The hernia examiner reported that the Veteran experienced a right inguinal hernia during service that was surgically repaired and has since been asymptomatic. Thereafter, in August 2008, the Veteran was afforded examinations in regard to the other relevant conditions. The examiner diagnosed the Veteran with cervicalgia resulting in reduced range of motion and painful motion. The Veteran denied experiencing flareups. The examiner also reported normal left upper extremity muscle, motor, sensory, and reflex testing and denied the presence of ankylosis and muscle atrophy. The examiner found that the neck condition resulted in severe effects on exercise and recreation, moderate effects on chores, sports, travel, and dressing, and mild effects on bathing, grooming, and eating. The August 2008 examiner also diagnosed the Veteran with left knee degenerative joint disease, with symptoms of reduced range of motion, painful motion, swelling, stiffness, weakness, and locking episodes. The Veteran denied experiencing flareups and effusion. The examiner found that the left knee condition resulted in the use of a cane for walking, an inability to stand for more than a few minutes or exercise, severe effects on performing chores, bathing, dressing, shopping and recreation, and moderate effects on grooming. The August 2008 examiner also diagnosed the Veteran with sinusitis resulting in headaches one to six times per week, nasal discharge, and sinus pain and tenderness. The examiner found the condition resulted in mild to moderate effects on performing chores, shopping, exercising, traveling, grooming, and dressing. In a March 2009 form, the Veteran’s last employer reported that the Veteran was laid off for lack of work in April 2008. In a September 2009 form, the Veteran’s last fulltime employer reported he was forced to retire from work as a commercial airline pilot due to government regulations. In a July 2014 decision, the Board denied an effective date prior to April 15, 2008 for a TDIU. The Veteran subsequently appealed the denied claim to the United States Court of Appeals for Veterans Claims (Court). The parties to the appeal entered into a July 2015 Joint Motion for Remand (Joint Motion) because the Board failed to evaluate the Veteran’s Social Security Administration (SSA) records. In an Order issued later in July 2015, the Court granted the Joint Motion. The Veteran’s SSA records were associated with the file in July 2015. These records show that the Veteran was denied disability benefits in August 2008 because SSA physicians and staff could not establish an inability to work. The SSA records also include a physician assessment from April 2010. The physician reported that the Veteran cannot use ladders, ropes, and scaffolds, and had occasional limitation in balancing, stooping, kneeling, crouching, crawling, and in using ramps and stairs. The physician did not find any limitations in the Veteran’s visual acuity or ability to communicate or use his hands to manipulate objects. The physician found that the Veteran was able to frequently lift 10 pounds, occasionally lift 20 pounds, stand or walk for at least 2 hours in an 8 hour workday, sit for 6 hours in an 8 hour workday, and was not limited in operating push or pull controls with the hands or feet. Additional SSA records showed that he began receiving SSA compensation in September 2008, which coincides with him turning 62 years of age. The Board finds that the Veteran was not prevented from working due to his service-connected disabilities prior to April 15, 2008. In this regard, the record shows that he was forced to stop flying commercial airplanes in 2006 due to government age restrictions, and stopped flying part time in 2008 due to being laid off from lack of work. The Veteran was not working full time prior to April 2008, but the evidence does not show that this was due to disability. In addition, while the Veteran’s service-connected disabilities resulted in some restrictions on walking and standing for extended periods of time during the relevant period on appeal, the 2008 VA examinations and 2010 SSA physician assessment show that he was not prevented from performing sedentary employment. Sedentary work based on its commonly understood societal meaning is work requiring little physical exertion such as working in an administrative capacity in an office or call center. The Veteran has a college degree, supervisory and managerial experience, and experience in the aviation and security fields. The Veteran’s age and service connected disabilities limited his ability to work as a commercial pilot or in jobs requiring extensive standing and walking prior to April 15, 2008, but he was not prevented from obtaining and maintaining gainful employment performing office work in an entry level or supervisory role due to his service-connected disabilities. The Board is sympathetic to the Veteran’s assertions regarding the impact the disabilities have on him, both professionally and personally. However, the limitations caused by the service-connected disabilities prior to April 15, 2008 were compensated by the schedular ratings for such disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while the relevant disabilities caused some economic impairment, the assigned disability ratings contemplated the level of occupational impairment for the conditions. A TDIU claim is not a purely medical question. Here, the Board has considered both the relevant medical evidence as well as the non-medical evidence, including work history and lay statements. In sum, the preponderance of the evidence shows that the Veteran was not prevented from securing and following substantially gainful employment as a result of the service-connected disabilities prior to April 15, 2008. Therefore, the benefit-of-the-doubt rule is not applicable, and a TDIU prior to April 15, 2008 is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although another claim is being remanded for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). The Board notes that the September 2020 Board decision found that the issue of whether new and material evidence was submitted to reopen a claim of service connection for a respiratory disorder was inextricably intertwined with this claim. Such claim is reopened herein and the current issue of service connection for a respiratory disorder is being remanded for further development. However, the service connection claim is not intertwined with the present issue because, in the event that it is granted effective prior to April 15, 2008, the TDIU issue will be addressed downstream at such time. REASONS FOR REMAND Service connection for a respiratory disorder. The Veteran is seeking service connection for a respiratory disorder due to in service chemical exposures. In June 2012, the Veteran submitted a statement from a fellow service member. The service member reported flying with the Veteran. He also reported that, prior to returning to the United States during flights, they were required to spray pesticides containing harmful chemicals inside the sealed cockpit. In a July 2012 correspondence, the Veteran reported experiencing asthma and chronic breathing problems caused by flying in dirty Air Force transport planes. In December 2014, the Veteran submitted an article about Kuwait oil fires. During a February 2020 RO hearing, the Veteran reported being diagnosed with COPD by a private physician. In a correspondence later in February 2020, the Veteran stated that the C-141 aircraft that he flew in and out of Vietnam and Thailand were covered in herbicides, and that he inhaled fumes from the herbicides. Thereafter, in a March 2020 correspondence, he stated that he was exposed to asbestos while flying C-141 aircraft. While the Veteran claimed service connection for asthma and breathing problems, the Board for has broadly construed the claim to include any respiratory disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran’s service personnel records (SPRs) show that he served as a pilot during the Vietnam and Gulf Wars. His service treatment records (STRs) include a March 1973 chest x-ray report that noted some peculiar markings, but otherwise was within normal limits. The STRs show that the Veteran denied a history of asthma, shortness of breath, chronic cough, and pain or pressure in the chest in July 1986, August 1991, and June 1994 self-reported medical histories. In a July 2007 letter, a private physician reported that the Veteran has respiratory difficulties dating back 12 years, including episodic cough, shortness of breath, and wheezing with bronchitis. He also reported the possible presence of mild asthma and COPD, and noted a concern about Gulf War chemical exposures. The Veteran was afforded Gulf War medical and respiratory examinations in May 2015. The examiner stated that the Veteran does not have an undiagnosed illness or medically unexplained chronic multisymptom illness (MUCMI). The examiner did not diagnose any respiratory conditions other than the service-connected left upper lobe granulomatous infection with pulmonary nodule. The Board finds that a remand is necessary to attempt to verify the claimed herbicide and asbestos exposure. In addition, the Veteran should be afforded another examination in regard to this claim. This claim is REMANDED for the following actions: 1. Complete all necessary development to determine if the Veteran was exposed to herbicides during service, to include while flying C-141 aircraft during the Vietnam War. All responses received should be associated with the record. 2. Complete all necessary development to determine if the Veteran was exposed to asbestos during service, to include while flying C-141 aircraft during the Vietnam War. All responses received should be associated with the record. 3. After completing the record development indicated above, schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in person examination is not feasible) by an appropriate clinician to determine the nature and etiology of any current respiratory disorders. The examiner is asked to address each of the following: (a.) List all respiratory disorders present since July 2012. (b.) Provide a medical opinion explaining whether each disorder, whether singly or in combination, is: i. an undiagnosed illness; ii. a diagnosable but medically unexplained chronic multi-symptom illness (MUCMI) of unknown etiology or pathophysiology; iii. a diagnosable chronic multi-symptom illness with a partially explained etiology or pathophysiology, or; (Continued on the next page)   iv. a disease with a clear and specific etiology and diagnosis. (c.) For each condition found consistent with options (iii) or (iv) above, the examiner should provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to the Veteran’s service or is otherwise causally related to any event or circumstance of service, to include environmental exposures during Gulf War service or any verified exposure to herbicides and/or asbestos. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.