Citation Nr: 21071397 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 12-03 900 DATE: November 30, 2021 ORDER Service connection for a lung disability, based upon the substitution of the Appellant as the claimant, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 10, 2012, on an extraschedular basis, based upon the substitution of the Appellant as the claimant, is granted. REMANDED Entitlement to service connection for a right foot disability, based upon the substitution of the Appellant as the claimant, is remanded. Entitlement to service connection for a right hip disability, based upon the substitution of the Appellant as the claimant, is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's lung disabilities, including chronic obstructive pulmonary disease (COPD), pulmonary fibrosis, and emphysema were incurred in service. 2. From February 27, 2009, to October 9, 2012, the Veteran was unable to secure and maintain substantially gainful employment as a result of his service-connected acquired psychiatric disability, right ring finger disability, lumbar spine disability, and cervical spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a lung disability, including COPD, pulmonary fibrosis, and emphysema, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.300, 3.102, 3.303, 3.304. 2. The criteria for a total disability rating based on individual unemployability due to service-connected disabilities, including an acquired psychiatric disability, right ring finger disability, lumbar spine disability, and cervical spine disability on an extraschedular basis from February 27, 2009, to October 9, 2012, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1974 to December 1983. He passed away in August 2020 and his surviving spouse has been substituted as the claimant. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2009 and April 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the May 2009 rating decision, the RO denied service connection for right foot and right hip injuries because the evidence was not new and material. In the April 2012 rating decision, the RO denied service connection for a lung disability. The Veteran testified before a Decision Review Officer in May 2010 and before the undersigned Veterans Law Judge (VLJ) in November 2017. Copies of the transcripts have been reviewed and associated with the claims file. In a March 2018 decision, the Board reopened the claims of service connection for right foot and right hip disorders and remanded all issues for additional evidentiary development. These matters were again before the Board in November 2018 and remanded for additional evidentiary development. While in remand status, in a June 2021 rating decision, the RO granted service connection for right thumb and right wrist disabilities. Thus, these issues are no longer in appellate status. In the June 2021 rating decision, the RO granted entitlement to a TDIU, effective October 10, 2012. 1. Entitlement to service connection for a lung disability, based upon the substitution of the Appellant as the claimant Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection the evidence must show: (1) a present disability; (2) an 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 or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the Veteran was diagnosed with COPD, emphysema, and pulmonary fibrosis (also known as interstitial lung disease) prior to his passing. He asserts that his lung disabilities were incurred in service, including due to asbestos and silt dust exposures. The Veteran's service treatment records (STRs) are silent for any complaints, symptoms, or treatment for a lung disability in service. While such records did reflect treatment for a cough in August 1974, a cold in October 1974, upper respiratory syndrome in September 1978 and pharyngitis in May 1979, relevant symptoms were denied on the report of medical history completed at separation and all objective findings were normal on the discharge examination. Following service, in December 1992, the Veteran was diagnosed with COPD. He underwent a VA examination in April 1995, at which time he was assessed with a history of COPD secondary to smoking. He reported a history of smoking one pack of cigarettes per day for fifteen to twenty years and had cut down to two or three cigarettes per day since 1986. Subsequently, in July 1997, he was assessed with emphysema and had nodules removed from his throat. In February 2011, interstitial lung disease and emphysematous changes were revealed on a CT [computed tomography] scan of the chest. A subsequent January 2012 CT scan revealed interstitial lung disease consistent with end stage pulmonary fibrosis and emphysematous changes. The Veteran underwent a VA examination in May 2018, at which time he was assessed with COPD. The examiner concluded that the Veteran's forty-four-year smoking history was the cause of his COPD. The Veteran was afforded another VA examination in November 2019, at which time he was assessed with COPD and combined pulmonary fibrosis and emphysema. The examiner ultimately concluded that his lung disabilities were attributable to his years of tobacco use and not any alleged asbestos and/or silt dust exposures. The examiner reasoned that his chest CT scans have not shown any evidence of pleural plaques, which are consistent with asbestos exposure. Moreover, his clinical picture does not correspond to the effects from silts. Rather, combined fibrosis and emphysema is most commonly seen in male smokers and cigarette smoking is the predominate cause of and most important risk factor for COPD. The Veteran smoked 12 to one pack per day for forty-five years. His chest x-rays and chest CT findings over the past years have shown progressive emphysematous change with associated focal fibrosis. His emphysema has continued to worsen with continued smoking, and he has developed fibrosis consistent with smoking related interstitial lung disease. Thus, his COPD and combined pulmonary fibrosis and emphysema were less likely than not incurred in service, including the assertions of asbestos and silt dust exposure. After a review of the record, the Board finds that the evidence does not reveal that the Veteran's COPD, pulmonary fibrosis, or emphysema was related to service, including any alleged asbestos and silt dust exposure. In this regard, the November 2019 examiner indicated that his lung disabilities were consistent with his forty-five-year history of smoking. To the extent the record indicates that the Veteran began smoking in service and his COPD, pulmonary fibrosis, and emphysema are related to his history of cigarette smoking, the Board notes that VA regulations preclude service connection for a disability etiologically related to smoking, in this case, COPD, emphysema, and pulmonary fibrosis. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. In sum, the preponderance of the evidence is against the award of service connection for a lung disability, including COPD, emphysema, and pulmonary fibrosis. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 10, 2012, on an extraschedular basis, based upon the substitution of the Appellant as the claimant Generally, to be eligible for a TDIU, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107. From February 27, 2009, to October 9, 2012, the Veteran had a pending claim for an increased rating for his service-connected right ring finger disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. In the present case, a June 1996 medical opinion by D.J., chiropractor, concluded that pain in his hands, in part, contributed to his inability to perform any type of gainful employment. Accordingly, the issue of entitlement to a TDIU is before the Board. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) ("[O]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider... TDIU."). From February 27, 2009, to October 9, 2012, the Veteran was service connected for tension headaches, residuals of a traumatic brain injury (TBI), an acquired psychiatric disability, tinnitus, post-operative laceration of extensor tendon of the left forearm with nerve impairment of the left forearm, wrist, and hand, cervical strain disability, lumbar spine disability, residuals of a right ring finger fracture, bilateral achilles tendonitis, and left ear hearing. However, he did not meet the percentage requirements for consideration of a TDIU on a schedular basis throughout the rating period on appeal. See 38 C.F.R. § 4.16. Nevertheless, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, if a veteran fails to meet the rating in 38 C.F.R. § 4.16(a), as here, an extraschedular rating is for consideration where a Veteran is unemployable due to service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim was referred to VA's Director of Compensation for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the Veteran's claim was forwarded to the Director of VA's Compensation Service for extraschedular consideration. In a July 2018 memorandum opinion, the Director, Compensation Service, determined that the Veteran's service-connected disabilities did not preclude employment prior to March 2, 2016. The Board may now review the decision of the Director of Compensation with regard to entitlement to a TDIU under 38 C.F.R. § 4.16(b) and make an independent determination on this matter. See Anderson v. Shinseki, 22 Vet. App. 423 (2008). The Veteran's VA Form 21-8940, submitted in July 2016, revealed that he was a high school graduate and was last employed in 1984 as a cook's helper. The Veteran submitted a medical opinion by D.J., chiropractor, in June 1996. D.J. concluded that the Veteran suffered from pain in his neck, back, and hands. As a result of his physical limitations from his pain and functional capacity, D.J. concluded that he was unable to perform any type of gainful employment for which he was educated to do and was permanently and totally disabled. The Veteran underwent a VA examination in May 2019, at which time the examiner indicated that the Veteran's right ring finger was deformed and that he suffered from pain with pushing, pulling, and twisting. He also had decreased strength in writing and twisting in both hands. The Veteran was afforded a mental health VA examination in April 2010, at which time the examiner noted that the Veteran currently lived an isolated, seclusive existence in a camper. He continued to have diffuse paranoid ideas that people from the past were out to get him, that snipers will take him out any second, and that his telephone was bugged. The examiner also noted that the Veteran was disturbed in a number of ways having to do with life adjustment. The Veteran underwent VA examinations in November 2011, at which time the examiner concluded that his back and right finger disabilities impacted his ability to work. In this regard, he had pain with movement of his back and he was unable to perform heavy physical employment. The deformity of his right ring finger limited his ability to do manual labor. He was right-hand dominant. Based on the evidence of record, the Board finds that the Veteran's service-connected right ring finger, back disability, cervical spine disability, and psychiatric disability precluded him from maintaining substantially gainful employment that is consistent with his education and occupational experience. In this regard, the Veteran worked as a cook's helper post-military. He was right-hand dominant, and his right ring finger limited his ability to do manual labor. His back disability precluded him from heavy physical employment. In addition, D.J., a chiropractor, concluded that his neck, back, and hand pain contributed to his inability to maintain employment. Lastly, the April 2010 examiner noted that his psychiatric disability consisted of paranoia and disturbances due to life adjustment. Accordingly, the Board finds that the Veteran would be required to lift heavy objects and use his right-hand as a cook's helper and that his right ring finger deformity and back pain would preclude work consistent with a cook's helper or similar setting. Moreover, his pain and paranoia would also contribute to his inability to function in a work setting. In light of the above evidence, the Board finds that the Veteran is not capable of maintaining substantially gainful employment due to his service-connected right ring finger, back disability, cervical spine disability, and psychiatric disability from February 27, 2009, to October 9, 2012. REASONS FOR REMAND 1. Entitlement to service connection for a right foot disability, based upon the substitution of the Appellant as the claimant, is remanded; 2. Entitlement to service connection for a right hip disability, based upon the substitution of the Appellant as the claimant, is remanded. Pursuant to the Board's remand instructions, VA examinations were performed in November 2019. Although the examiner concluded that his osteoarthritis of his right ankle and avascular necrosis of the right hip were not related to service, the examiner did not provide an opinion regarding whether the ankle disability was proximately caused by and/or aggravated by his service-connected disabilities as requested in the Board's remand instructions. Moreover, the examiner noted the Veteran suffered from bilateral hammertoes but did not provide a direct and/or secondary service connection opinion. With respect to the hip issue, a negative opinion was provided on both direct and secondary bases, as the hip necrosis was attributed to alcohol use, and was worsened due to injuries sustained in an altercation at a bar. In this regard the Board notes that service connection is in effect for psychiatric disability. Accordingly, an addendum medical opinion should be sought to determine whether the Veteran's alcohol use was a component of his service-connected disorder. The matters are REMANDED for the following action: Forward the claims file, including a copy of this remand, to the November 2019 examiner for an addendum medical opinion to determine the etiology of the Veteran's right hip and/or right foot/ankle disabilities prior to his passing. If the November 2019 examiner is unavailable, forward to an appropriate clinician. The claims file, including a copy of this remand, must be reviewed and such review should be noted in the examination report. The examiner should respond to the following: A. Regardless of symptoms, is it at least as likely as not (probability of at least 50 percent) that the bilateral hammertoes identified during the November 2019 examination had their onset in and/or were otherwise etiologically related to the Veteran's period of active service? B. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's bilateral hammertoes, right ankle disability, and/or right hip disability were caused and/or aggravated by his service-connected disabilities? If aggravation is found, is there medical evidence created prior to aggravation or between the aggravation and current level of disability that shows a baseline of the bilateral hammertoes, right ankle disability, and/or right foot disability prior to aggravation? With regard to the Veteran's service-connected acquired psychiatric disability, secondary service connection may be found for the right hip avascular necrosis if the examiner finds that his alcohol abuse is related to his service-connected acquired psychiatric disability given that the November 2019 medical opinion indicates that his necrosis of the right hip was related to his alcohol abuse. (Continued on the next page) The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.