Citation Nr: 21010233 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-29 297 DATE: February 24, 2021 ORDER New and material evidence has been presented, and the claim of entitlement to service connection for a deviated septum is reopened. New and material evidence has been presented, and the claim of entitlement to service connection for obstructive sleep apnea (OSA) is reopened. Service connection for a chronic heart disorder is denied. A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is denied. REMANDED Entitlement to service connection for a deviated nasal septum is remanded. Entitlement to service connection for OSA is remanded. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD) is remanded. Entitlement to a rating in excess of 10 percent for asthma is remanded. Entitlement to a rating in excess of 10 percent for a left ankle disability is remanded. Entitlement to a compensable rating for a right ankle disability is remanded. FINDINGS OF FACT 1. A March 1992 rating decision denied the service connection claim for a deviated septum; the evidence received since the March 1992 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the service connection claim for a deviated septum, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. 2. An August 2009 rating decision denied the service connection claim for OSA; the evidence received since the August 2009 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the service connection claim for OSA, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. 3. The Veteran does not have a diagnosis of a chronic heart disorder. 4. The Veteran’s service-connected disabilities are not shown to preclude the Veteran from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. New and material evidence has been submitted, and the Veteran’s service connection claim for a deviated septum is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been submitted, and the Veteran’s service connection claim for OSA is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a chronic heart disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 4. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1974 to July 1991. In connection with this appeal, the Veteran and his wife testified at a hearing before the undersigned in June 2020. A transcript of that hearing is of record. Reopen Service Connection Claims New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The Veteran filed a service connection claim for a deviated septum in August 1991 and for OSA in May 2009, which were denied by March 1992 and August 2009 rating decisions. He did not submit any new and material evidence pertaining to these issues within a year of the respective rating decision, meaning that the March 1992 and August 2009 rating decisions became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. At the time of the March 1992 rating decision, the evidence of record included the Veteran’s STRs and a VA examination records. The RO denied the claim as the VA examiner found that there was only a slight deviation of the septum and no significant airway obstruction. At the time of the August 2009 rating decision, the evidence of record included the Veteran’s STRs, VA treatment records, and private treatment records. The RO denied the claim as the medical evidence did not show that the Veteran’s OSA was related to his active service or related to his service-connected asthma. In November 2016, the Veteran filed a request to reopen his previously denied service connection claims for a deviated septum and OSA. He asserts that he underwent two surgeries during his active service resulting in residuals and that he was diagnosed with OSA two years after his separation from active service in 1993. Evidence received since the March 1992 and August 2009 rating decisions includes additional VA medical records, private medical records, which includes opinions regarding the etiology of the Veteran’s deviated septum and OSA, and the testimony of the Veteran and his wife at the June 2020 Board hearing. This evidence is presumed credible for the limited purposes of reopening the claims, and when that is done, the new information is considered to be material and is therefore sufficient to reopen the previously denied claims. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. 110. Accordingly, the claims are reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Veteran filed a service connection claim for a heart disorder, which was denied by a February 2017 rating decision. The Veteran asserts that he has a heart disorder due to his active service. At the June 2020 Board hearing, he testified that he experienced a heart attack in 1988 or 1989. He testified that he was hospitalized in 1998 for unstable angina. The Veteran’s STRs from his active service do not show any complaints, treatment, or diagnosis of a chronic heart disorder. At June 1980, November 1983, and June 1988 physicals, he had normal examinations of his heart and specifically denied having any heart trouble on accompanying medical questionnaires. In March 1990, he reported chest pain. He was diagnosed with noncardiac chest pain. In July 1990, he again reported chest pain. He was diagnosed with chest wall pain. At his March 1991 separation physical, he had a normal examination of his heart and again denied having any heart symptoms. His STRs do not show that he experienced a heart attack or was diagnosed with any chronic heart disorder during his active service. The Veteran’s medical records also do not show any complaints, treatment, or diagnosis of a heart disorder but for an August 2020 statement from the Veteran’s physician. In August 2020, the Veteran’s physician reported that the Veteran experienced a myocardial infarction in 1986 during his active service. His physician reported that conditions related to this medical condition would be considered service related, which would include heart failure. The findings and opinion of the Veteran’s physician are given no probative value. As discussed above, the Veteran’s STRs do not show that he experienced any heart symptoms during his active service. In addition, his physician did not state that he reviewed the Veteran’s claims file. While the Veteran reported to his physician that he had a myocardial infarction, his STRs do not document any myocardial infarction or any other heart symptoms. In fact, the Veteran’s physician did not actually diagnose the Veteran with any specific chronic heart disorder. Indeed, the Veteran’s medical treatment records do not document a diagnosis of a chronic heart disorder. Any medical evidence or opinions based on the Veteran’s false reports are not probative. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); see also LeShore v. Brown, 8 Vet. App. 406, 409 (1995). As such, the opinion of the Veteran’s physician is given no probative value as it is not consistent with nor based on the Veteran’s medical records. The Veteran has not submitted any probative medical evidence supporting his assertion that he has a current diagnosis of a chronic heart disorder or that any chronic heart disorder was due to his active service. While the Veteran asserts that he has a chronic heart disorder, the diagnosis of such a disability requires clinical testing and medical expertise and cannot simply be diagnosed by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to diagnose a chronic heart disorder or relate this condition to any incident during his active service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, there is then no need to address whether his statements in this regard are also credible. Id. In the absence of proof of a current disability, there can be no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here the Veteran has not shown by medical evidence the presence of a chronic heart disorder. Nor does the evidence establish functional impairments that would suggest a disability even in the absence of a diagnosis. See Saunders v. Wilkie, No. 17-1466 (Fed. Cir. 2018). As such, the claims file does not show any treatment or diagnosis for a chronic heart disorder; in the absence of objective indications of a disorder, the Board finds that service connection is not warranted. Accordingly, as the criteria for service connection for a chronic heart disorder have not been met, the claim is denied. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), she still may receive a TDIU on an extraschedular basis if it is determined that she is unable to secure or follow a substantially gainful occupation by reason of her service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The claims file does not contain any evidence that the Veteran actually filed a claim for a TDIU. The claims file does not contain a VA Form 21-8940 – Veteran’s Application for Increased Compensation Based on Unemployability. The claims file does not contain any statements from the Veteran that he was unable to work due to his service-connected disabilities. Indeed, at the June 2020 Board hearing, he testified that he was working. In any event, the Veteran does not meet the schedular requirements for a TDIU as he does not have a single disability rated at 40 percent or more or have a combined disability rating of 70 percent or more. Since November 2016, he has had a combined disability rating of 40 percent. In addition, the evidence of record does not establish that the Veteran is actually unable to obtain or maintain substantially gainful employment. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified 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. Given the above, and as the Veteran remains employed and does not appear to allege he is unemployable, a TDIU is denied. If circumstances change, the Veteran is invited to file an application seeking a TDIU. REASONS FOR REMAND Regarding the Veteran’s service connection claim for a deviated septum, the Veteran’s STRs show that in January 1976, he complained of having a nasal obstruction. He was diagnosed with a deviated septum. He underwent a septoplasty in April 1976. In June 1980 and November 1983, he reported having nose trouble. In January 1986, he reported having problems breathing through is nose. In February 1986, he underwent a second septoplasty. At a December 1990 physical, he reported having nose trouble and shortness of breath. He was diagnosed with a deviated septum. In August 2020, the Veteran’s physician reported that the Veteran continued to complain of nasal obstruction and difficulty breathing. As such, a remand is necessary to adjudicate the service connection claim for a deviated septum in order to afford the Veteran a new VA examination. Regarding the Veteran’s service connection claim for OSA, at the June 2000 Board hearing, the Veteran testified that he was diagnosed with OSA in 1993. His wife testified that he would snore and stop breathing during his active service. The Veteran’s medical records show that he was diagnosed with OSA in August 2004. In August 2009, the Veteran was afforded a VA examination. While the examiner opined that the Veteran’s OSA was less likely than not secondary to his service-connected asthma, the examiner did not give an opinion on direct service connection. As such, a remand is necessary to adjudicate the service connection claim for OSA in order to afford the Veteran a new VA examination. By this remand, the Board makes no determination, expressed or implied, concerning the credibility of any lay statements on file. Regarding the Veteran’s increased rating claims for asthma and bilateral ankle disabilities, at the June 2020 Board hearing, he testified that these conditions had worsened since his last VA examination. As such, new VA examinations are necessary to adjudicate the claims. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and private clinical records regarding treatment for the Veteran’s deviated septum, OSA, to include any medical records regarding a 1993 sleep study, asthma, and bilateral ankle disabilities. 2. Then, schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran’s deviated septum. The VA examiner should provide the following opinions: a. Is it at least as likely as not (50 percent or greater) that any deviated septum clearly and unmistakably existed prior to the Veteran’s active service? Why or why not? The examiner should discuss whether the Veteran’s deviated septum is a congenital defect. b. If a deviated nasal septum did clearly and unmistakably exist prior to active duty service, provide an opinion as to whether the pre-existing deviated nasal septum clearly and unmistakably (obviously, manifestly, and undebatable) was not aggravated (meaning the underlying disability increased in severity beyond the natural progression of the disability) during his active duty service. Why or why not? The examiner should discuss the two septoplasty surgeries during the Veteran’s active service and his continued deviated nasal septum complaints. c. If a deviated nasal septum did not clearly and unmistakably exist prior to active duty service, provide an opinion whether it is as least as likely as not (50 percent probability or greater) that the Veteran’s deviated nasal septum either began during or was otherwise caused by his active service? Why or why not? The examiner should discuss the Veteran’s STRs showing complaints during his active service, the medical statement from the Veteran’s physician, and the Veteran’s lay statements regarding his deviated septum. 3. Then, schedule the Veteran for a VA examination to determine the nature and likely etiology of his OSA. The examiner should offer the following opinions: a. Is it at least as likely as not (50 percent or greater) that the Veteran’s OSA was caused by the Veteran’s active service. Why or why not? The examiner should discuss the lay statements of the Veteran and his wife regarding the Veteran’s OSA symptoms during his active service. b. Is it at least as likely as not (50 percent or greater) that the Veteran’s OSA was caused by a service-connected disability? Why or why not? c. Is it at least as likely as not (50 percent or greater) that the Veteran’s OSA was aggravated (made worse) by a service-connected disability? Why or why not? The examiner should discuss the statement from the Veteran’s physician regarding any conditions that were related to the Veteran’s OSA. If aggravation is found, the examiner should identify a baseline level of severity of the Veteran’s OSA by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of his OSA. If such cannot be done, it should be explained why. 4. Schedule the Veteran for a VA examination to assess the nature and severity of his service-connected asthma. 5. Schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral ankle disabilities. In so doing, the examiner should ensure to the extent possible, consistent with 38 C.F.R. § 4.59, that the report include results of active and passive motion, in addition to the results following repetitive motion testing. If it is not possible to complete any of the range of motion testing described above, it should be explained. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, Counsel 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.