Citation Nr: 21071002 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 11-23 651 DATE: November 29, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include COPD and asthma, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had asthma at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that a respiratory disorder, to include COPD, began during active service, or is otherwise related to an in-service injury or disease. 3. The Veteran does not have any service-connected disabilities that would interfere with his ability to engage in substantial gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder, to include COPD and asthma, not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1110, 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 4.15, 4.16 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1987 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This case has an extensive procedural history. Most recently, the Board remanded these matters in a July 2021. The Board finds that the RO has substantially complied with the July 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). 1. Entitlement to service connection for a respiratory disorder, to include COPD and asthma The Veteran initially contended that his asthma was due to exposure to various toxins during service in Germany. The Veteran now contends that his lung condition manifested by chronic cough, chronic sputum production, asthma, nodules, pulmonary granulomas, and calcifications is due to exposure to asbestos, lead, cadmium, arsenic, and secondhand exposure to smoke and exhaust fumes during training and while deployed in Germany. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board will initially consider the issue of service connection for asthma and then consider the issue of service connection for COPD. The Board concludes that the Veteran does not have a current diagnosis of asthma and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The May 2021 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of cough, he did not have a diagnosis of asthma. Further, VA treatment records do not contain a diagnosis of asthma. While the Veteran believes he has a current diagnosis of asthma, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Turning to the issue of service connection for COPD, the Board concludes that, while the Veteran has a current diagnosis of COPD, and evidence shows that exposure to various toxins could have occurred, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of COPD began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with COPD until 2020, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of coughing intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of COPD. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Taken together, the several VA opinions of record, including the newly obtained October 2021 VA examiner's opinion, establish that the Veteran's COPD is not at least as likely as not related to an in-service injury, event, or disease, including due to exposure to respiratory irritants or toxins while stationed in Germany. The October 2021 VA examiner opined that the Veteran's COPD was not at least as likely as not related to reported asthma or sinusitis in service, while the May 2021 VA examiner opined that the Veteran's COPD was not at least as likely as not related to his reports of respiratory problems in service. The combined rationale was that the Veteran had a pre-existing diagnosis of sinusitis that manifested during service, but there was no evidence of chronicity of symptoms to the present or a worsening of the symptoms during service. The examiners' combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his COPD is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has 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 multiple VA medical opinions. As a consequence, service connection must be denied. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran is seeking a total disability rating based on individual unemployability (TDIU). The Board finds that the Veteran does not have any service-connected disabilities, and so they do not prevent him from securing or following a substantially gainful occupation, the Board finds that a TDIU is not warranted in this case. A TDIU may be assigned when the disabled veteran 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 they meet specified percentage ratings. 38 C.F.R. § 4.16(a). For purposes of meeting the percentage criteria of § 4.16(a) disabilities resulting from a common etiology are considered a single disability. 38 C.F.R. § 4.16(a)(2). To qualify for a schedular TDIU under § 4.16(a) the Veteran must have one service-connected disability rated at 60 percent or more, or, if there are two or more such disabilities, one must be ratable at 40 percent or more, and combine with sufficient additional disability to bring the combined total to 70 percent or more. The combined ratings table at 38 C.F.R. § 4.25 is used to determine the combined disability rating. 38 C.F.R. § 4.25. There are two regulatory subsections that allow for a TDIU. The first, called a "schedular TDIU," provides that a TDIU may be assigned when a disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities alone. 38 C.F.R. § 4.16(a). If there is only one service-connected disability, this disability must be ratable at 60 percent or more. Id. If there are two or more disabilities, there must 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. Id. Either the Board or the agency of original jurisdiction (AOJ) can grant a schedular TDIU in the first instance. The second, called an "extraschedular TDIU," does not have the percentage requirement but cannot be granted by the Board or the AOJ in the first instance. 38 C.F.R. § 4.16(b). Rather, it must be submitted to VA's Director, Compensation Service to provide an opinion as to whether or not the Veteran's service-connected disabilities alone prevent the Veteran from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(b). The Veteran is not service connected for any of his disabilities. Accordingly, the claim for entitlement to total disability due to individual unemployability is denied. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Taylor, Matthew David 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.