Citation Nr: 21010199 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-16 590 DATE: February 24, 2021 ORDER Entitlement to service connection for a spinal disability, to include degenerative disc disease of the lumbar spine, is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s degenerative disc disease of the lumbar spine is not related to his military service and was not manifested within the one year following service separation. 2. The Veteran’s hypertension was not manifest in service; is not related to presumed herbicide exposure and did not manifest within 1 year following service separation. 3. The Veteran’s COPD did not manifest during service and is not otherwise related to service, to include due to presumed herbicide exposure. 4. The Veteran's service-connected disabilities do not preclude him from obtaining and maintaining gainful employment. CONCLUSIONS OF LAW 1. The Veteran’s degenerative disc disease of the lumbar spine was not incurred in or aggravated by active military service and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The Veteran’s hypertension was not incurred in or aggravated by active military service and is not presumptively related to service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The Veteran’s COPD was not incurred in or aggravated by active military service and is not presumptively related to service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for the assignment of a TDIU due to service-connected disabilities have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1970 to March 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board remanded the matters for further development, including obtaining VA medical examinations. The Board finds that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Initially, the Board notes that VA was unable to obtain the Veteran's service treatment records, and in these cases, VA has a heightened duty to assist. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board concludes, however, that the heightened duty to assist has been met. In February 2012, the RO sent the Veteran a letter which informed him that his service treatment records were unavailable. The letter also informed the Veteran of his right to submit any additional evidence, including the missing service treatment records. With consideration of the facts set forth above, and in light of the apparent unavailability of the service records, the Board is satisfied that VA's duty has been met and that reasonable efforts to reconstruct the Veteran's service records have been made. In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy 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 or aggravated during service - the so- called ‘nexus’ requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Presumptive service connection is available for chronic diseases which manifest to a degree of 10 percent or more within 1 year of the date of separation. 38 U.S.C. § 1112 (a)(1). Degenerative disc disease and hypertension are listed as chronic diseases. The law provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). A Veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). 1. Entitlement to service connection for a spinal disability, to include degenerative disc disease of the lumbar spine. The Veteran contends, without specificity, that he is entitled to service connection for a spinal disability. For the reasons explained below, the Board finds that entitlement to service connection is not warranted. In November 2011, the Veteran was afforded a VA general medical (pension) examination where he reported that he had worked as a grave digger for 30 years and dug graves, mostly by hand. He reported that he developed back pain over the years, but that it had become unbearable in the previous year. In August 2019, the Veteran was afforded a VA examination where he reported that he injured his back a few years after service while driving a company truck. He reported having back surgery in 2011. The examiner opined that it was at least as likely as not that the Veteran’s back disability was related to service because the Veteran did not have any back pain prior to service and the onset of the condition was documented in the service medical records. However, as noted above, the Veteran’s service medical records are unavailable. Therefore, the RO requested an addendum opinion which was not based on unavailable records. In an October 2020 addendum opinion, the examiner opined that it was less likely than not that the Veteran’s back disability was related to service. The examiner noted to disregard the previous opinion. She reasoned that there was no medical evidence to suggest that the Veteran’s back disability was related to service. She highlighted the Veteran’s post service back injury in 1981 and aging as the source of the Veteran’s back disability. The Board finds the October 2020 examiner’s opinion to be highly probative in value. The examiner reviewed the Veteran’s medical records and considered the Veteran’s statements prior to rendering an opinion. The examiner concluded that the Veteran’s back disability was not related to his service. She related his current back disability to his self-admitted post service back injury. He admitted the post-service injury at both the November 2011 and August 2019 examinations. At no time has he provided any evidence of any in-service injury to his back. The Board attaches no probative value to the Veteran’s statement regarding the etiology of his back disability. There is no evidence that the Veteran has the medical expertise to provide such an opinion and therefore is not competent to offer such an opinion. There is no evidence of a back injury or disability for many years post service. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The examiner, who is competent to make such an opinion, opined against any nexus between service and his current disability. The Board further finds that presumptive service connection is not warranted because the evidence does not show that he has a diagnosis of arthritis becoming manifest to a degree of 10 percent of more within one year from the date of separation. Given that the Board has found the unfavorable October 2020 medical opinion to be the most probative evidence of record, the preponderance of the evidence is against the Veteran’s claim for service connection, and the claim must be denied. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. 2. Entitlement to service connection for hypertension The Veteran contends that he is entitled to service connection for hypertension as secondary to Agent Orange exposure. See April 2010 VA Form 21-0820. For the reasons explained below, the Board finds that entitlement to service connection is not warranted. Here, although there is evidence that the Veteran had service in Vietnam and the Veteran has a diagnosis of hypertension, the Board notes that hypertension is not a condition listed as presumptively associated with herbicide exposure. 38 C.F.R. § 3.309(e). Notwithstanding the foregoing, the Veteran may still establish service connection on a different basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). At a November 2011 VA examination, the Veteran reported that he had been hypertensive since 2003. In August 2019, the Veteran was afforded a VA examination where he reported that he started having high blood pressure in 2009 and that his blood pressure had been up and down the previous 18 months. The examiner opined that it was at least as likely as not that the Veteran’s hypertension was related to service. The examiner reasoned that the Veteran did not have any issues with hypertension prior to service and that the hypertension had its onset during service. The examiner also noted that the Veteran was “present during the time of Agent Orange.” However, as noted above, the Veteran’s service medical records are unavailable, and hypertension is not presumptively connected to herbicide exposure. Therefore, the RO requested an addendum opinion. In an addendum opinion in October 2020, the examiner opined that it was less likely than not that the Veteran’s hypertension was related to service. The examiner noted that there was no known peer reviewed medical literature which related hypertension to herbicide exposure and there was no other evidence that the Veteran’s hypertension was related to service. The Board finds the October 2020 medical opinion to be probative in value. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the examiner’s access to the claims file and the thoroughness and detail of the opinion). The clinician reviewed the Veteran’s records and provided an opinion with adequate rationale to support the conclusion. The examiner opined against any nexus between the Veteran’s hypertension and service, including due ot herbicide exposure. The Board has considered the Veteran’s statements regarding his hypertension. The Veteran is competent to report elevated blood pressure readings. However, the Veteran is not competent to opine the etiology of the diagnosed hypertension as he has not indicated he possesses the requisite medical knowledge. The October 2020 VA examiner, however, is competent to opine on such an issue and in fact provided an opinion which found against any nexus between the Veteran’s hypertension and service. The examiner addressed the Veteran’s “confusion regarding causative nexus/legal presumption granted by Congress [for diabetes mellitus], but not supported by any currently known peer reviewed medical literature [for hypertension].” Finally, there is evidence that the Veteran was diagnosed hypertension following service. However, he was not diagnosed with hypertension within 1 year following service, in order to allow him presumptive service connection under 38 U.S.C. § 1112 (a)(1) and 38 C.F.R. § 3.309. Given that the Board has found the unfavorable October 2020 medical opinion to be the most probative evidence of record, the preponderance of the evidence is against the Veteran’s claim for service connection, and the claim must be denied. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. 3. Entitlement to service connection for COPD The Veteran contends that he is entitled to service connection for COPD as secondary to Agent Orange exposure. See April 2010 VA Form 21-0820. For the reasons explained below, the Board finds that entitlement to service connection is denied. Here, although there is evidence that the Veteran had service in Vietnam and the Veteran has a diagnosis of COPD, the Board notes that COPD is not a condition listed as presumptively associated with herbicide exposure. 38 C.F.R. § 3.309(e). Notwithstanding the foregoing, the Veteran may still establish service connection on a different basis. See Combee, supra. At a November 2011 VA general medical examination, the Veteran reported that he was a 3-4 pack per day cigarette smoker for many years. The examiner noted that the Veteran was diagnosed with COPD in 2008. In August 2019, the Veteran was afforded a VA examination where the examiner opined that it was at least as likely as not that the Veteran’s COPD was related to service. The examiner reasoned that the Veteran had no issues prior to service and the condition was documented in the service medical records. However, as noted above, the Veteran’s service medical records are unavailable. Therefore, the RO requested an addendum opinion which was not based on unavailable records. In an October 2020 addendum opinion, the examiner opined that it was less likely than not that the Veteran’s COPD was related to service. The examiner noted to disregard the previous opinion. She reasoned that the Veteran reported that his COPD developed in 2010 – 37 years post service. She attributed the Veteran’s COPD to his long history of cigarette smoking. “The main cause of COPD in developed countries is tobacco smoking.” She cited to the Mayo Clinic’s website which detailed COPD causes. The Board finds the October 2020 medical opinion to be probative in value. The October 2020 examiner provided a reasoned opinion based on a complete review of the Veteran’s records. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the examiner’s access to the claims file and the thoroughness and detail of the opinion). As such, the Board is satisfied that the VA examiner duly considered all salient evidence, both clinical and lay. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (noting that greater reliance may be placed on an opinion rendered by an examiner who is fully informed of the pertinent factual premises (i.e., history) of the appeal). The examiner ruled out any nexus between the Veteran’s current COPD and service. Rather, the clinician attributed the Veteran’s COPD to his longstanding history of cigarette smoking. The Board attaches no probative value to the Veteran’s statement regarding the etiology of his COPD. There is no evidence that the Veteran has the medical expertise to provide such an opinion and therefore is not competent to offer such an opinion. Although he alleged that his COPD was related to herbicide exposure, he did not submit any competent medical evidence to support this conclusion. The examiner, who is competent to make such an opinion, opined against any nexus between service and his current disability. Given that the Board has found the unfavorable October 2020 medical opinion to be the most probative evidence of record, the preponderance of the evidence is against the Veteran’s claim for service connection, and the claim must be denied. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. 4. Entitlement to TDIU Total disability based on unemployability exists where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. When the schedular rating is less than total, a TDIU may be assigned if the Veteran meets certain schedular criteria under 38 C.F.R. § 4.16(a) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one disability should be rated at 40 percent or more and the combined evaluation should be 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service-connected for transient ischemic attack, rated as 30 percent disabling; diabetes mellitus, rated as 20 percent disabling; and erectile dysfunction, rated as noncompensable. The Veteran’s combined rating of 40 percent does not meet the requirements under 38 C.F.R. § 4.16 (a). Even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §4.16 (b). However, the Board finds that the Veteran's service-connected disabilities do not preclude him from engaging in substantially gainful employment. In a November 2011 VA Form 21-8940, the Veteran reported that he was unable to work due to his lung, back and leg disabilities. In the current decision, the Board found that service connection was not warranted for a lung or back disability. The Veteran is not service-connected for any leg disability. At the November 2011 VA examination, the examiner opined that the Veteran’s non service-connected back and respiratory conditions were factors in the Veteran’s ability to sustain employment. “He is physically incapable of returning to former work (grave digging) and the back condition prevents him from sitting for more than 10 minutes or standing more than 5-10 minutes.” There is no other evidence – lay or medical – which suggests that the Veteran’s service-connected disabilities preclude gainful employment. Therefore, entitlement to a TDIU is not warranted; the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Baskerville, LaRita 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.