Citation Nr: 21015914 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-60 551 DATE: March 18, 2021 ORDER Service connection for pharynx disability as secondary to service-connected lung cancer is denied. Service connection for thoracic and mid back disability as secondary to service-connected lung cancer is denied. REMANDED A rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. A compensable rating for lung cancer to include mild dysphagia post radiation therapy to include whether the reduction from 100 percent to noncompensable was proper is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on housebound status is remanded.   REFERRED ISSUE At the Board hearing, the Veteran’s attorney referenced entitlement to an earlier effective date for service connection for PTSD. That issue is not on appeal, but is referred to the Agency of Original Jurisdiction for appropriate action. FINDINGS OF FACT 1. The Veteran does not have pharynx disability. 2. Thoracic and mid back disability was not manifest in service and arthritis of the spine was not manifest within one year of separation. The disease is unrelated to service and is unrelated (caused or aggravated) to service-connected disease or injury. CONCLUSIONS OF LAW 1. The criteria for service connection for pharynx disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for thoracic and mid back disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to October 1971 to include service in Vietnam. The Veteran and his wife appeared at a Board hearing in September 2020 at which the undersigned Veterans Law Judge clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran’s claims. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. The undersigned granted the Veteran’s attorney’s request for an additional 60 days following the hearing to submit evidence and argument, which was thereafter received at the Board. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime). In general, to establish a right to compensation for a present disability, a Veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Certain chronic diseases such as arthritis, will be presumed related to service if they were chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection is also warranted for disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). 1. Service connection for pharynx disability as secondary to service-connected lung cancer is denied. The Veteran urges that he is entitled to service connection for a pharynx disability because he has such a disorder and it was caused by the treatment for service-connected lung cancer. For the reasons that follow, the preponderance of the evidence is against the claim. The question for the Board is whether the Veteran has current pharynx disability that manifested in service or whether the condition is otherwise related to service or is proximately due to, aggravated by or the result of a service-connected disease or injury. We note that the Veteran does not argue that the disorder manifested in service or is otherwise related to service. Rather, he seeks service connection for pharynx disability as secondary to lung cancer. The Board concludes that the Veteran does not have current pharynx disability and has not had any such disability at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran does not contend nor does the record show any findings of pharynx disability in service. Service treatment records (STRs) include his October 1971 separation examination reflecting normal clinical evaluation of the throat. We note that the Veteran’s service-connected lung cancer disability is characterized as lung cancer to include mild dysphagia post radiation therapy in recognition that dysphagia is related to the lung cancer treatment. An October 2017 VA examination report reflects the examiner’s finding that the diagnosis is dysphagia, mild in severity, more likely than not secondary to his radiation treatment for lung carcinoma. It was noted that the Veteran did not have dysphagia before radiation, and radiation is known to affect swallowing in some cases. However, that same examiner found that there was no actual pharynx disorder. Neither VA or non-VA treatment records dated through the present time reflect diagnosis or findings of pharynx disability. Indeed, the Veteran and his wife have testified that he has trouble swallowing since the radiation therapy, but this has been medically linked to his lung cancer as dysphagia. Thus, dysphagia is already service-connected. There is no competent evidence of current pharynx disability. Due to the absence of proof of a present disability, there is no valid claim for service connection. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, we lack competent evidence of disease, injury and disability. To the extent that he urges he has pharynx disability, his assertion is outweighed by the lack of indication of any such condition in the treatment record and the negative VA medical opinion. We note that the dysphagia is already rated as part of the lung cancer disability, and will be discussed in the remand below. The preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for thoracic and mid back disability as secondary to service-connected lung cancer is denied. The Veteran urges that he is entitled to service connection for a thoracic and mid back disability because he has such a disorder and it was caused by the treatment for service-connected lung cancer. For the reasons that follow, the preponderance of the evidence is against the claim. There is current disability, as reflected in the November 2017 VA thoracolumbar spine examination with the diagnosis of mild degenerative change of the spine on chest X-ray with a diagnosis date of September 2016. The Veteran does not contend nor does the record show any findings of thoracic and/or mid back disability in service or for years thereafter. STRs include his October 1971 separation examination reflecting normal clinical evaluation of the spine and, again, the current disability dates from 2016. Thus the Board concludes that the preponderance of the evidence is against finding that there was thoracic and/or mid back disability in service or that arthritis was noted during service or that he had characteristic manifestations sufficient to identify a chronic disease process (arthritis) during service or within one year of separation or that the thoracic/mid back disability, diagnosed years after service, is otherwise related to service. As to the secondary service connection claim, the examiner who authored the November 2017 VA spine examination concluded that the current thoracic/mid back disability is less likely than not proximately due to or the result of lung cancer to include mild dysphagia post radiation therapy. The rationale was that the Veteran's mild degenerative change of the spine on chest X-ray in September 2016 is most likely due to the aging process and stresses on the spine over the Veteran’s lifetime. They also concluded that the condition is less likely than not aggravated beyond its natural progression by service-connected lung cancer to include mild dysphagia post radiation therapy. The rationale was that the Veteran’s mild degenerative change of the spine on September 2016 chest X-ray is most likely due to the aging process and stresses on the spine over Veteran’s lifetime. The 2017 VA examiner’s opinion is thorough and supported by adequate rationale. The opinion is uncontroverted by any other medical evidence. It 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 Board adopts the opinion for its reasons and bases to support the conclusion that the thoracic/mid back disability is not proximately due to or aggravated by the lung cancer disorder, noting that the examiner has fairly considered the material evidence of record. Wray v. Brown, 7 Vet. App. 488 (1995). While the Veteran is competent to report having experienced certain symptoms, his lay opinion as to etiology of his thoracic/mid back condition is outweighed by the medically uncontroverted opinion of the trained VA examiner. The VA examiner considered his assertions, and the negative opinion as to secondary service connection was also based on examination and review of the record. Ultimately, the Board finds it to be the most probative evidence on the critical issue of etiology, and it is against the claim. The preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. A rating in excess of 50 percent for PTSD is remanded. Testimony before the undersigned in September 2020 suggests that the Veteran’s PTSD has become worse and is more disabling than currently rated. The Veteran and his wife described him as is more aggressive now that he is taking Seroquel. They described an incident two nights before the hearing with him being aggressive, flailing his arms in bed close to her, and her having difficulty awakening him. Consistent with this, 2020 VA treatment records reflect that he is taking quetiapine fumarate, (generic name for Seroquel). It was recorded in the recent VA treatment that he has not been able to come to terms emotionally with traumatic events, as evidenced by anxiety, anger, dreams and nightmares, isolation and avoidance of people. In light of the Veteran’s and his wife’s credible statements that his disability picture has worsened since his last examination, another examination must be afforded to accurately assess his current level of disability. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of PTSD. We do note that evidence was submitted subsequent to the hearing, but also find that a VA examination is warranted to ascertain the current level of impairment presented by this disability based on VA rating criteria. We also note that in January 2021 argument, the Veteran’s attorney has stated that the relief requested with regard to PTSD is a 70% rating from October 23, 2012. 2. A compensable rating for lung cancer to include mild dysphagia post radiation therapy to include whether the reduction from 100 percent to noncompensable was proper is remanded. Service connection for this disorder was granted in an April 2014 rating decision. A 100 percent rating is effective from September 30, 2013, and a noncompensable rating is effective from September 1, 2016. The disability is rated under Diagnostic Codes 7203-6819. DC 6819 provides: Neoplasms, malignant, any specified part of respiratory system exclusive of skin growths ...................... 100 Note: A rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals. DC 7203 provides: Esophagus, stricture of: Permitting passage of liquids only, with marked impairment of general health ............................ 80 Severe, permitting liquids only ............................. 50 Moderate .............................................................. 30 Testimony before the undersigned in September 2020 suggests that the Veteran’s lung cancer with mild dysphagia post radiation therapy has become worse and is more disabling than currently rated. First, we note that the Veteran appeared to be and reported he was hooked up to a device providing oxygen. Second, the Veteran and his wife described him as having increased problems with dysphagia, which has been medically attributed to the radiation treatment for lung cancer. He reports substantial trouble swallowing. They argue that a separate rating is warranted for dysphagia in addition to a compensable rating for the current respiratory lung cancer residuals. The most recent VA lung cancer examination, in August 2016, noted no current active malignancy. The residual shortness of breath and all medication were reported to be due to nonservice connected chronic obstructive pulmonary disease. At the September 2020 hearing, it was not clear what if any of his respiratory manifestations are related to his lung cancer. Pointing out that he is on oxygen, the Veteran’s attorney argued in September 2020 that he has decreased respiratory capacity. However, we note that the last VA examination is over four years old. In light of the Veteran’s and his wife’s credible statements that his disability picture has worsened since his last examination, another examination must be afforded to accurately assess his current level of disability. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of lung cancer to include mild dysphagia post radiation therapy. We do note that evidence was submitted subsequent to the hearing, but also find that a VA examination is warranted to ascertain the current level of impairment presented by this disability based on VA rating criteria. 3. TDIU is remanded. The Veteran filed a formal claim for TDIU, in May 2014, and has claimed it is based on PTSD and lung cancer. Because a decision on the PTSD and lung cancer ratings being remanded could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. Therefore, a remand of the claim for TDIU is required. 4. Entitlement to SMC based on housebound status is remanded. SMC by reason of being housebound is payable if a Veteran has a service-connected disability rated as total and either: (1) has an additional service-connected disability or disabilities independently ratable at 60 percent or more or (2) is permanently housebound by reason of his service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The Veteran is permanently housebound when he is substantially confined to his dwelling and the immediate premises (or, if institutionalized, to his ward or clinical areas) due to service-connected disability or disabilities and it is reasonably certain that the disability or disabilities as well as the resultant confinement will continue or remain throughout his lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i) (2). It was argued at the September 2020 hearing that the Veteran should meet the criteria for housebound by reason of having a service-connected disability rated as total and an additional service-connected disability or disabilities independently ratable at 60 percent or more for all or part of the period on appeal. Because a decision on the PTSD and lung cancer ratings being remanded could significantly impact a decision on this issue, the issues are inextricably intertwined. Therefore, a remand of the claim for SMC based on housebound is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. As a part of the examination and opinion, the examiner must consider all medical evidence to include the Veteran’s lay statements and the hearing testimony as well as evidence and argument submitted by the Veteran’s attorney following the hearing. 2. Schedule the Veteran for appropriate VA examination(s) to determine the current severity of his service-connected lung cancer to include mild dysphagia post radiation therapy. The entire claims file and a copy of this remand should be made available to the examiner(s) for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner(s) should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner(s) must also discuss the functional effects of the Veteran's service-connected lung cancer to include mild dysphagia post radiation therapy, and any related residual conditions. As a part of the examination(s) and opinion(s), the examiner(s) must consider all medical evidence to include the Veteran's lay statements and the hearing testimony as well as evidence and argument submitted by the Veteran’s attorney following the hearing. Any opinion offered must be accompanied by a complete rationale, to include consideration of all medical evidence and lay statements. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of TDIU and SMC based on housebound status. As to the lung cancer rating, considered whether a separate rating for dysphagia is warranted. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his attorney-representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.