Citation Nr: 21067667 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 06-22 539 DATE: November 5, 2021 ORDER Entitlement to service connection for an embolism (to include pulmonary or deep vein thrombosis (DVT)) is denied. Entitlement to service connection for acute microscopic hematuria (claimed as kidney problems, blood in urine, and pyelonephritis) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The most probative (i.e., competent and credible) evidence of record is against finding that the Veteran has a DVT/pulmonary embolism disability and/or hematuria and/or kidney disability because of his military service, including owing to his service at Camp Lejeune and/or in Southwest Asia, and/or caused or aggravated by a service-connected disability. 2. The preponderance of the evidence also is against finding that he has been unable to obtain and maintain substantially gainful employment because of service-connected disabilities, either singly or in combination. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for an embolism (to include pulmonary/DVT) and/or hematuria (claimed as kidney problems, blood in urine, and pyelonephritis). 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 2. The criteria also are not met for entitlement to a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the military from June 1978 to June 1998. This appeal to the Board of Veterans' Appeals (Board) is from April 2014 and November 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These claims most recently were before the Board in February 2021, at which time they were remanded back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration including for supplemental VA examinations and needed medical nexus opinions because the Board determined the RO had not substantially complied with the Board's prior September 2018 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). But there since has been the required substantial compliance. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain "chronic" conditions also may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year of the Veteran's separation from service, although this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). As well, according to 38 C.F.R. § 3.310(a) and (b), service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability although in the latter instance compensation is limited to the disability specifically owing to the aggravation. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective March 14, 2017, a Veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987 shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). If a Veteran served at Camp Lejeune during the time frame specified, certain diseases including kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer shall be service connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(f). The diseases listed in §3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). The Veteran was stationed at Camp Lejeune from November 1979 to at least August 1981. In addition, the Veteran's DD Form 214 shows that he received the Southwest Asia Service Medal. His military service personnel records (SPRs) confirm that he participated in Operation Desert Shield/Storm in Kuwait from December 1990 to May 1991. Thus, he is considered a Persian Gulf War (PGW) Veteran. 38 C.F.R. § 3.317(e). Service connection may be granted in this circumstance when there are objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2026. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). Objective indications of a qualifying chronic disability include both signs and symptoms in the medical sense of objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). There is no burden on a veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the veteran can be compensated for a disability stemming from an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). 1. Entitlement to service connection for an embolism While the Veteran has been on anticoagulation therapy for emboli during the pendency of this claim (i.e., since March 2013), the Board finds that service connection for an embolism, or residuals of such, is not warranted. The most probative evidence is against finding that any current disability is related to his service and/or a service-connected disability. In November 1993, while in service, the Veteran reported a three-to-four-day history of discomfort in his left anterior chest. He reported a blood vessel that was tender to palpation. The assessment was superficial thrombosis. See November 1993 service treatment record (STR). He separated from service in June 1998, so nearly 5 years later. Six months after that, in December 1998, the Veteran sought treatment at a VA clinic and complained of four days of discomfort in his lower left extremity. DVT was diagnosed. But, as even he reported the onset happened some 6 months after his service, the Board finds that he did not have continuity of symptoms since his service as contemplated by 38 C.F.R. § 3.303(b). See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A September 2003 VA clinical record reflects that the Veteran was not then currently on Coumadin (a blood thinner). He reported that, in December 1998, he had a left DVT for which he had been on a three-month course of Coumadin but also that he had "not had any problems with this since." An April 2009 VA emergency department record shows the Veteran complained of pain in his left lower extremity, especially in his calf muscle for a few days. He denied shortness of breath but believed that he was having a similar episode to the previous DVT. Upon examination, the assessment was left lower extremity swelling with pain. A January 2013 VA clinical record indicates the Veteran reported calf pain and consequently underwent lower extremity venous evaluation with ultrasound imaging, doppler velocity blood flow analysis, and color-flow doppler, all of which were normal. In February 2013, the Veteran again sought treatment for shortness of breath. It was noted that he was a truck driver and had a trip that had lasted a few days. The diagnosis was bilateral pulmonary emboli; he was admitted to the hospital as a result. The Veteran contends that his pulmonary embolism was secondary to his service-connected disabilities (see May 2014 and July 2015 statements) and/or due to exposure to contaminated water at Camp Lejeune, where he was stationed from 1979 to at least 1981 (see July 2015 statement). However, a pulmonary embolism is not a disability warranting presumptive service connection, though this does not preclude him from establishing service connection, instead, on the premise of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A March 2017 VA examiner, however, opined that the Veteran's pulmonary embolism is less likely than not related to his service in Southwest Asia. The Veteran was noted to be asymptomatic following resolution of pulmonary thromboembolism and on anti-coagulation therapy (rivaroxaban). The examiner pointed out the Veteran has a family history of DVTs in cousins, that he had a predisposition to clot formation after the DVT in 1998, and that the pulmonary embolism in 2013 occurred after a lengthy drive of approximately 11 hours, which also places a person at higher risk of clot formation. A more recent July 2019 VA examiner also concluded that it is less likely than not the Veteran's pulmonary embolism is related or attributable to his military service, including to exposure to contaminated water at Camp Lejeune. This additional examiner explained that a pulmonary embolism is a sudden blockage in a lung artery and that, in this Veteran's situation, it is less likely than not due to his service. This examiner reasoned that the cause is usually a blood clot in the leg that breaks loose and travels through the bloodstream to the lung; this was the etiology of the Veteran's February 2013 pulmonary emboli. This examiner also noted that, occasionally, the blockages are caused by marrow fat from a broken long bone, collagen or other tissue, part of a tumor, or air bubbles in the blood. A pulmonary embolus is not a lung disease. In this Veteran's case, his pulmonary emboli were caused by a DVT in his left lower leg. This examiner also observed that, when the Veteran was hospitalized for a DVT in 1998, several blood tests were done to determine whether he had an underlying coagulopathy (i.e., clotting disorder). He was tested for deficiencies of Factor V, Protein C, Protein S, and Antithrombin III. No deficiencies in these factors/proteins were found (i.e., no underlying clotting disorder caused by deficiencies of these substances). This examiner surmised that one factor that could have contributed to the Veteran's recurrent DVTs was his occupation as a long-distance truck driver, then a driver for Medicare/Medicaid patients, and now as a driver for another company. This examiner pointed out that sitting for long periods in a vehicle would increase the Veteran's risk for another event. This examiner found that the record is unremarkable for a pulmonary embolism in service. In an even more recent April 2021 Disability Benefits Questionnaire (DBQ), the examiner concurred with the prior July 2019 DBQ examiner's rationale and determined the Veteran's post-service pulmonary embolism was less likely than not related to his thrombosis in service. The examiner's rationale was based, in part, on the STRs that are unremarkable for pulmonary embolism and with consideration of the common etiology of pulmonary embolism. The Veteran, in comparison, has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his pulmonary emboli/DVT including especially in terms of whether related or attributable to anything that occurred during his time in the military. This determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Indeed, there is no probative evidence (i.e., a competent medical opinion based on review of the pertinent evidence and with adequate rationale) conversely indicating it is as likely as not this claimed disability is related to the Veteran's service. There also is no probative evidence that it is as likely as not the Veteran has a qualifying chronic disability warranting presumptive service connection according to 38 U.S.C. § 1117 and 38 C.F.R. § 3.309 or 3.317. For these reasons and bases, service connection is not warranted. And, as the preponderance of the evidence is against this claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to service connection for acute microscopic hematuria (claimed as kidney problems, blood in urine, and pyelonephritis) The Veteran also contends that he has microscopic hematuria owing to environmental hazards during his PGW experience, but he additionally contends that it is a kidney disability from exposure to contaminated water at Camp Lejeune. His STRs are grossly unremarkable for indication of microscopic hematuria, despite noting a 1979 complaint of a burning sensation when urinating and an April 1980 complaint of urethral discharge. If he had blood in his urine, it seems reasonable that it would have been noted. He also has asserted that the first time he saw blood in his urine was after a head injury in approximately 1992; however, his STRs noting complaints of head injuries do not also reflect blood in his urine (see, e.g., September 1992, December 1993, April 1994 records.) Moreover, his September 1997 Report of Medical History for retirement purposes affirms that he specifically denied having had blood in his urine. He separated from active service in June 1998. More than a year later, an October 1999 urinalysis showed microhematuria that had been recurrent/chronic in nature. A January 2002 VA clinical record shows the Veteran relates a long history of microscopic hematuria and a remote episode of a small amount of frank hematuria. In August 2003 VA correspondence, he was informed that he should see his doctor to have his urine rechecked after a finding of "trace blood". An October 2003 VA clinical record notes that the Veteran presented for follow up of occult hematuria. It was noted that he did not desire a urology consultation. The examiner surmised that, given the evidence, the Veteran has "probably benign familial hematuria". A July 2019 DBQ contains the opinion of the examiner that it is less likely than not the Veteran's microscopic hematuria is related to his military service, including to his service at Camp Lejeune and during the PGW. This examiner explained that the PGW disabilities noted in 38 C.F.R. § 3.317 are not pathophysiological related to the occurrence of microhematuria, either as an underlying etiology or as an aggravation condition. This examiner also found no objective indications of an undiagnosed illness or a MUCMI manifesting as episodic microscopic hematuria. As well, this examiner pointed out the Veteran's microhematuria is not an "acute" finding but a "chronic" finding and had been found in five out of 16 urinalyses noted in the record. This examiner also pointed out there is no pathophysiological relationship between the Veteran's many service-connected disabilities and his microhematuria. An April 2021 DBQ indicates the Veteran reported blood in his urine in service since approximately 1992 to 2000, but that since 2000 no blood has been observed by him, although medical providers have informed him that he has small amounts of blood in his urine. A July 2021 DBQ explains there is no data from the Agency for Toxic Substances and Disease Registry (ATSDR) or any scientific/medical literature research of epidemiological rigor tending to support the posited association between exposure to contaminated water at Camp Lejeune and hematuria in isolation. This examiner explained that hematuria is essentially a possible symptom of some other pathological condition and is not on its own an official clinical diagnosis. This examiner added that the Veteran "has had voluminous workup of his condition and no serious pathology has been identified as causal of his condition, which has been present for over 20 years (and did not start for years post Camp Lejeune service). Taking all of this together, therefore, we conclude that the claimed condition is less likely than not (less than 50/50 probability) caused by or a result of the Veteran's exposure to contaminated water at Camp Lejeune." The examiner found that the data fails to support any sort of chronic renal disease or renal failure, which makes it less likely than not the Veteran has a disability caused by Camp Lejeune water exposure. This July 2021 examiner also found that there was no mention of any microscopic hematuria in the Veteran's STRs. An August 2021 DBQ further provides that, although there is not enough physical examination and laboratory testing findings to establish a diagnosis, there is most likely a diagnosis; however, the Veteran has not wanted to have it worked up. Thus, according to this most recent examiner, the Veteran has declined to undergo any additional testing and/or clinical evaluation that might shed further light on the exact nature and etiology of his claimed disability. And, according to the medical opinions that are of record, all have found it less likely than not his hematuria is attributable to his military service. As already explained, as a layman, he cannot refute these examiners' unfavorable medical opinions. There resultantly is no probative evidence (i.e., a competent medical opinion based on review of the pertinent evidence and with adequate rationale) indicating it is as likely as not this claimed disability is related or attributable to the Veteran's service. There also is no probative evidence indicating it is as likely as not he has a qualifying chronic disability warranting presumptive service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.309 or 3.317. Although the Veteran contends there has been blood in his urine since his service, his STRs do not tend to support the notion of the onset of this claimed condition during his service. Moreover, he is not competent to observe blood in his urine at a microscopic level since not visual or detectable to the naked eye, and if he saw chronic blood in his urine in service, it stands to reason this would have been noted in his STRs rather than specifically denied. Any contention of blood in his urine since his service is less than credible. In addition, any clinical opinion based on an unsupported and less than credible history and/or chronic symptoms since service is not probative. The mere fact that an examiner bases an opinion on a history that has been provided by the Veteran, rather than, as an example, additionally on independent review of the claims file, does not automatically invalidate the opinion because the Veteran could be providing a credible history. However, if it shown the history is not credible or that evidence, if considered (but that was not), would affect the examiner's conclusion, then the basis of the opinion is undermined, and it consequently has less probative value or weight. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). For these reasons and bases, service connection is not warranted. And, as the preponderance of the evidence is against this claim, the benefit of the doubt rule is not applicable. Gilbert, 1 Vet. App. at 55. TDIU 3. Entitlement to a TDIU In January 2013, the Veteran filed a claim for a TDIU and asserted that he had last worked in January 2013, so that same month, when he became unemployable. Importantly, however, the evidence also reflects that he was again employed even after he filed his claim for a TDIU. From January 2013 to May 11, 2017 The Veteran's combined schedular rating for his service-connected disabilities was 90 percent from July 11, 2005 to May 11, 2017, so during this period they meet the schedular criteria for a TDIU according to 38 C.F.R. § 4.16(a). However, importantly, records also show that he was still working during this time period. See, e.g., January 2017 Report of General Information (VA Form 27-0820), December 2015, November 2016, May 2017 VA clinical records, and March 2014 correspondence. Moreover, this evidence does not tend to suggest that it was not substantially gainful employment. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. "Generally, the degrees of disability specified [in the Rating Schedule] 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. So, above and beyond that, there must be indication of inability to work in any substantially gainful capacity for a claim of entitlement to a TDIU to prevail. In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disability, alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Court has held that "substantially gainful employment" contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the Veteran's occupational history, education, skill and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment also may be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. §§ 4.16(a), 4.18. Here, though, the evidence does not support that, during this time period, the Veteran's income was below the poverty level or that he worked in a protected environment or out of accommodation. Thus, a TDIU is not warranted. Since May 11, 2017 Effectively since May 11, 2017, the Veteran has had a 100 percent schedular rating, so a total rating. The presence of a schedular 100 percent disability rating does not necessarily render the issue of TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). Essentially, if the Veteran has a TDIU based on one disability, it may substitute for either the 100 percent or the 60 percent rating needed for an SMC. Here, though, the Veteran does not have a separate 100 percent rating; thus, to warrant SMC, he would have to have one disability rated as a TDIU. However, he has not specifically raised that one disability alone warrants a TDIU. See Buie v. Shinseki, 24 Vet. App. 242 (2010). Moreover, the evidence does not reflect such, even with consideration that his radiculopathies may be considered with his spine disabilities and with consideration of the bilateral factor. Here, unlike in Bradley, the Veteran is not seeking SMC or TDIU based on a single disability, and the total rating includes the disabilities for which he is seeking TDIU. As such, there remain no allegations of error of fact or law for appellate consideration. Moreover, and importantly, the evidence reflects that the Veteran has been employed during this succeeding period, without probative indication it is less than gainful employment or in a protected work environment or out of accommodation. See, e.g., June 2018 VA clinical record. Thus, a TDIU is not warranted. And, as the preponderance of the evidence is against this claim, the benefit of the doubt rule is not applicable. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.