Citation Nr: 21013778 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 13-09 442A DATE: March 10, 2021 ORDER Entitlement to service connection for graft versus host disease (GVHD), as secondary to his service connected non-Hodgkins lymphoma (NHL), is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) for the entire appeal period is granted. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran had a diagnosis of GVHD during the appeal period. 2. The evidence is sufficient to show that during the entire appeal period, the Veteran was unable to maintain a substantially gainful occupation consistent with his education and work history due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria to establish service connection for GVHD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for the award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § § 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from October 1965 to September 1969, which includes service in the Republic of Vietnam during the Vietnam Era. This matter returns to the Board of Veterans Appeals (Board) after its April 2015 remand for additional development of the Veteran’s appeal of the February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). In the February 2012 rating decision, the AOJ denied the Veteran’s claim for entitlement to service connection for GVHD, as it found no current diagnosis of GVHD; and also denied the Veteran’s claim for TDIU. 1. Entitlement to service connection for GVHD. The Veteran contends that he suffers from GVHD resulting from treatment for his service connected non-Hodgkins lymphoma (NHL). Specifically, that his GVHD developed after he underwent various treatments for his NHL, including a bone marrow transplant. VA concedes that the Veteran was granted service connection for his NHL based on a presumptive basis due to exposure to herbicide agents, including Agent Orange, while he served in the Republic of Vietnam. Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Congress specifically limited entitlement to disability compensation for service-connected disease or injury to cases where the incident resulted in a disability. In the absence of proof of a present disability there can be no valid claim under either a direct basis or as a secondary condition. 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran was diagnosed with NHL in or around December 1987, with its first recurrence in May 1996 for which he underwent surgical intervention and chemotherapy, and a second recurrence occurred shortly thereafter. His third recurrence occurred in May 1999, after which he was hospitalized from August 17 to September 9, 1999 where he underwent various treatments, including an allogenic stem cell transplant, including peripheral blood stem cell transplant on August 25 and 26,1999. This is also referred to as an allogenic bone marrow transplant. His final date of engraftment for this hospital stay was September 6, 1999. He was noted to have had no GVHD during this hospitalization. See Hospital Admission Note. Records from various treating physicians at Univ. of M. Hospitals show a general lack of GVHD. In several documents it was stated affirmatively that he did not have GVHD, though in May 2000, Dr. J. H. recorded that the Veteran had chronic limited GVHD of the mouth which was stable and of the skin which was resolved. A later note, June 2000, from Dr. K. C., stated that the Veteran had chronic limited GVHD of his mouth and skin which was quite active at the time. A July 2010 VA examination of the Veteran was not found to have a current diagnosis of GVHD, based on both a review of his medical records and physical examination of the Veteran. In July 2011 VA treating medical providers were concerned about the possibility of GVHD affecting his skin, and the Veteran was referred to dermatology for a biopsy of the affected area. The biopsy revealed that there was no GVHD, but instead the Veteran had hypertrophic actinic keratosis. Dr. C.W., was the Veteran’s VA primary care doctor at this time. In a December 2011 VA examination, the examiner was asked to opine if the Veteran had GVHD, as well as his complaints of muscle joint pain, which was associated with his military service, including as due to his service-connected NHL. After reviewing the Veteran’s medical history, the examiner cited evidence, including the most recent VA notes which stated that the Veteran was in complete remission with no evidence of having GVHD. The VA examiner noted that while the Veteran was having rashes, he was sent for a dermatology consult where a biopsy found that his skin lesions are Actinic Keratoses. The VA examiner concluded that the Veteran had no manifestations to suggest that he has GVHD and that his previously reported arm pain is non-specific and no in any way related to his bone marrow transplant. This VA examiner also found that the Veteran did not have a current diagnosis of GVHD during the appeal period and that his other pains were not due to his NHL. The examiner for the July 2015 VA examination cited the medical evidence available to opine that the Veteran did not have a current diagnosis of GVHD and while he may have had it in the past, he was successfully treated and he has not had GVHD for many years. In September 2019, the Veteran’s VA primary care physician, Dr. C. W., prepared a letter in support of the Veteran’s claim for unemployability due to his service-connected disabilities. In that letter Dr. C.W., stated that the Veteran suffers from GVHD as a result of the allogenic treatment for NHL. Dr. C. W. then listed several symptoms, but otherwise did not provide other objective medical tests, facts, or analysis to support this statement, including any facts to counter the earlier finding that his skin related symptoms were keratosis. There were no other medical opinions, either from private or VA medical providers, submitted which opined that the Veteran has a current diagnosis of GVHD or has had one at any time during the appeal period beginning in May 2010 or that his joint and muscle pains are specifically related to his NHL and treatment for that disability. The Veteran submitted several statements detailing his medical history, his numerous symptoms, and how they impacted his life and ability to work. After review of the record, the Board finds that the preponderance of the evidence is against the Veteran’s claim in that he does not have a current disability of GVHD at any time during the appeal period. While there were indications of mild GVHD up to approximately 2000, the evidence shows that his NHL was in remission and that he did not exhibit GVHD after that period. The Veteran did not file his claim until 2010. Significantly, the contemporaneous 2011 biopsy showed that the Veteran’s skin symptoms were not GVHD, but hypertrophic actinic keratosis. There were no other objective positive findings in favor of the Veteran’s claim, other than Dr. C. W.’s statement without underlying facts or analysis to substantiate the assertion of GVHD. Dr. W did not specify when the Veteran had been found to have GVHD or whether it had since resolved. The VA treatment records clearly show that, while the Veteran certainly had been found to have and diagnosed with GVHD as late as 2000, he no longer had it and never developed it again during the appeal period that began in 2010. Further, her letter was submitted for the purpose of establishing the Veteran’s entitlement to TDIU, not GVHD. TDIU is discussed in more detail below. Finally, the Board finds the Veteran’s lay statements and testimony received to be competent and credible evidence with respect to the Veteran’s medical history, his symptoms, and their impact on his life. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, without specialized medical training a lay witness is not competent to either diagnose or make a nexus opinion concerning most medical conditions. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, the Veteran is not competent to make a valid determination that his symptoms were from or showed the presence of GVHD. The Board does not mean to minimize the pain and suffering the Veteran and his family have gone through, but the Board cannot accept that as a medical diagnosis in this case. The Board does address those issues below in the discussion of the Veteran’s entitlement to TDIU. The evidence does not show a current diagnosis of GVHD. All residuals related to the Veteran’s NHL and treatment for NHL have already been awarded service connection. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The claim for entitlement to service connection for GVHD is denied. 2. Entitlement to TDIU. The Veteran asserts he is entitled to a TDIU due to symptoms and secondary disabilities following from his service-connected NHL, including bilateral upper and lower peripheral neuropathy, left shoulder strain, and chronic fatigue, and others, which prevent him from being able to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). Based on the evidence of record, and giving the Veteran the benefit of any reasonable doubt, the Board finds that the Veteran’s service connected disabilities have rendered him to secure or follow a substantially gainful occupation during the entire appeal period, and thus he is entitled to a TDIU. VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disability or disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more disabilities, there shall 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. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric. Here, the Veteran meets these requirements for the entire appeal period in that he has had an 80 percent combined rating beginning May 20, 2010. Further, he has several disabilities all stemming from his service connected NHL, of which he is service connected for both bilateral upper and lower peripheral neuropathy all stemming from his NHL, with peripheral neuropathy of the right arm at 30 percent disabling; left arm at 20 percent; right leg at 20 percent; and left leg at 20 percent; and all effective on or before May 20, 2010. These four disabilities are considered a single disability as they all stem from the same etiology, affect a single body system (peripheral nerves) and are bilateral in their effects. These four disabilities, combined as one, meet the 60 percent disabling requirement. The record shows that the Veteran’s significant service-connected disabilities essentially started as a result of his NHL, diagnosed in or around December 1987. This caused the development of his bilateral and upper and lower peripheral neuropathy to manifest to a compensable degree for which he was granted compensation beginning in 1999. His conditions worsened over time and he was also granted service connection for NHL related left shoulder strain and rotator cuff impingement, and chronic fatigue and insomnia for which he was granted compensable ratings for both in May 2010. The evidence shows that the Veteran continued to exhibit significant symptoms related to his service-connected disabilities, which he brought to the attention of his medical providers, who in turn sought to address those symptoms. The record is replete with the Veteran’s consistent statements to his medical providers and examiners which consisted of descriptions of how his symptoms, pain, chronic fatigue, rashes, and lack of sleep adversely impacted his daily life and ability to work. There was also evidence that the Veteran was not able to perform work functions as he could not turn pages due to the pain from his peripheral neuropathy in his fingers. The Veteran’s employer submitted documentation which confirmed that the Veteran missed at least 8 weeks of work due to his conditions, as well as his reduced work hours during his last year of employment. The VA examiner in the December 2011 VA examination opined that there is nothing in the Veteran’s history related to his NHL that renders him unable to work or affects his ability to perform physical or sedentary jobs. The stated rationale for this opinion was that although the Veteran feels unable to work due to fatigue the Veteran’s oncologist did not believe the fatigue was related to his NHL. The examiner also stated that the Veteran’s neuropathy was not severe enough to be disabling and he was still working over 30 hours per week at that time. The Board notes the Veteran was subsequently granted a compensable rating for chronic fatigue and insomnia associated with NHL, effective May 2010 – before the date of this examination. The Board also notes that beginning January 1999, the Veteran had been granted compensable disability ratings for each of his right and left upper extremities, each at 20 percent disabling; and his left and right lower extremities, each at 10 percent disabling at the time. The examiner made no reference to these existing disabilities. The Board finds this VA examination opinion to be of no probative value. The examiner for the July 2015 VA examination opined that the Veteran’s conditions, alone and together, do not limit his ability to work in any way. However, the examiner did acknowledge that the final determination of whether the Veteran is able to maintain gainful employment is a decision for the deciding agency, not a medical determination. See Geib, 733 F.3d at 1354. In providing her opinion, the examiner cited a February 2015 exercise treadmill test and that the Veteran was able to shovel snow, therefore concluding that he “could run and use his arms and wrists to shovel snow.” The examiner also stated that the Veteran’s fatigue and insomnia are not limiting, and that his intestinal problems are not disabling – even though he had already been granted a compensable disability rating for chronic fatigue and insomnia which was and still is in effect. The examiner did not address issues related to the Veteran’s prolonged work environment and its impact on him. The Board also questions how the examiner equates shoveling snow with running, and how that impacts the Veteran’s given employment duties, which were not even mentioned in the opinion. Therefore, the Board finds this opinion to be based on an inaccurate and inapplicable set of facts, and therefore of no probative value. In the September 2019 letter from the Veteran’s long-standing VA primary care physician, Dr. C. W., she stated that the Veteran suffers from symptoms of GVHD (thought there was no actual diagnosis), joint pain, rashes, dry mouth, dry eyes, abdominal pain, diarrhea and constipation, muscle weakness and fatigue. Also, as a result of radiation treatment related to his NHL, he suffers from left shoulder pain, left sinus pain, hearing loss in his left ear, dental issues and loss of taste and smell. He also has pain from his peripheral neuropathy. She stated that his pain and intestinal issues caused him to not be able to keep his job which prevents him from having readily and free access to rest room and that his muscle weakness and fatigue preclude him form performing a 8 to 5 job. Lay statements submitted by the Veteran, though not competent to make a diagnosis of GVHD, as noted above, are competent and credible to describe the development and significant impact on his life of the long-standing symptoms which have made him unable to maintain gainful employment. 38 C.F.R. § 3.159 (a); see also Jandreau, 492 F.3d at 1377. And though the Veteran characterized his symptoms as GVHD, which was rejected by medical opinions, the fact remains that he did experience these painful and debilitating symptoms for which he did receive continuous treatment. The descriptions of his symptoms and their debilitating nature are consistent through the entire appeal period and, the Board finds, they are confirmed by the medical and other evidence of record. The Board finds Dr. C. W.’s letter of September 2019 to be very helpful and probative in this regard. The Board also notes that maintaining gainful employment does not require that a Veteran push him/herself to the breaking point to continue employment. Here, despite significant impairment from his disabilities, including chronic pain, fatigue, and sleep problems, the Veteran did push himself for years after the onset of his disabilities to continue to work to support his family. The Veteran stated that he needed to reduce the number of hours he worked per week due to the impact of his disabilities, yet he did continue to work. Given the overall facts and history in this case, the fact that the Veteran did commit to continue to work, despite the impact of his disabilities, should not work against the Veteran who at the time had no other means of supporting his spouse and several children. After resolving any doubt in the Veteran’s favor, the Board finds that throughout the pendency of the appeal, the impact of the Veteran’s service-connected disabilities have rendered him incapable of maintaining substantially gainful employment. Rice, 22 Vet. App. at 452 (“entitlement to a TDIU is based on an individual’s particular circumstances.”). The Board also finds that, despite the varying severity of symptoms directly related to his NHL, and that he thankfully appears to be in remission for a number of years, it is a combination of the Veteran’s service-connected disabilities all stemming from and brought on by his service connected NHL which render him unable to maintain any form of gainful employment. The Board holds that entitlement to a TDIU is warranted for the entire appeal period. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, Associate 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.