Citation Nr: 21028557 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-21 836 DATE: May 11, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD) is denied. An increased rating in excess of 30 percent for service-connected epididymitis is denied. An earlier effective date prior to May 4, 2015 for the award of a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The probative evidence of record including a November 2020 VA examiner's opinion indicates that the Veteran's diagnosed COPD was caused by his history of smoking rather than his military service or any service-connected disabilities. 2. The probative evidence of record, including multiple VA examinations, does not support a finding that the Veteran's service-connected epididymitis has resulted in renal dysfunction, urinary leakage, or urinary frequency. 3. A January 2021 rating decision granted the full benefit sought for entitlement to a TDIU rating, effective May 4, 2015, which is the earliest date available for entitlement. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1103, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.300, 3.303. 2. The criteria for an evaluation in excess of 30 percent for epididymitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.115b, Diagnostic Codes (DCs) 7599-7525. 3. The criteria for an effective date prior to May 4, 2015, for the award of a TDIU rating have not been met. 38 U.S.C. §§ 5110, 5107, 5109A, 7105 (2002, 2012); 38 C.F.R. §§ 3.105, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1963 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 decision of the Buffalo, New York Regional Office (RO). The issues were remanded by the Board in January 2018 and October 2019 for further development. 1. Service connection for COPD is denied. Legal Criteria Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Factual Background The service treatment records do not show that the Veteran was diagnosed with, or treated for, asthma or any other respiratory disorder. Further, the Veteran's separation examination did not find that the Veteran had asthma or any other respiratory disorder. See STRs. A January 2012 private medical treatment indicates that the Veteran has a diagnosis of severe COPD. At a February 2019 VA examination, the conducting physician opined that it was less likely than not that the Veteran's COPD was causally related to his service. As a rationale, the conducting physician explained that there is insufficient documented evidence and evidence-based medicine to support that the Veteran's COPD is related to active service. At an April 2019 VA treatment, the conducting physician indicated that the Veteran has a history of smoking two and half packs per day of cigarettes for 47 years. At a December 2019 VA treatment, the treating physician indicated to the Veteran that his smoking history caused lung damage which results in shortness of breath. In its November 2019 decision, the Board found this opinion to be inadequate and remanded the case for a new opinion. At a November 2020 VA examination, the conducting physician opined that it was less likely than not that the Veteran's COPD was causally related to his service or any service-connected disabilities. As a rationale, the physician noted that the Veteran smoked two and a half packs of cigarettes per day for over 45 years. The physician cited an up-to-date article which indicated the most important risk factor for COPD is cigarette smoking and that the amount and duration of smoking contributes to disease severity. The physician also explained that in one study, the single best variable for predicting which adults will have obstruction on spirometry is a history of more than 40 pack years of smoking while other data suggests smoking duration may provide stronger risk estimates of COPD than the composite index of pack-years. The physician cited another up-to-date article which indicated that numerous studies indicate that tobacco smoking is overwhelmingly the most important risk factor for COPD. Analysis The Board finds that it is less likely than not that the Veteran's COPD is causally related to his service or service-connected disabilities. The Board assigns probative value to the November 2020 VA examiner's opinion that the Veteran's COPD was caused by his history of smoking because they supported their rationale with medical treatises and the record verifies the Veteran's extensive smoking history. While the Veteran has stated that the currently diagnosed COPD is causally related to his service, the cause of the COPD involves complex medical questions dealing with the origin and progression of the respiratory system, and such disabilities are diagnosed primarily on clinical findings and physiological testing. While the Veteran is competent to relate respiratory symptoms experienced at any time, he is not competent in this case to opine on whether there is a link between a respiratory disability and active service because such a medical opinion requires specific medical knowledge and training that the Veteran has not been shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's COPD is causally related to his service or service-connected disabilities. 2. An increased rating in excess of 30 percent for service-connected epididymitis is denied. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. DC 7525 is applicable to chronic epididymo-orchitis. 38 C.F.R. § 4.115b. This code instructs the rater to rate chronic epididymo-orchitis as a urinary tract infection, or, if there are tubercular infections, in accordance with 38 C.F.R. § 4.88b or 4.89, whichever is appropriate. Id. Factual Background The Veteran was granted service-connection for epididymitis in February 1976. The Veteran filed a claim for an increased rating for his service-connected epididymitis in December 2006. After an August 2008 denial by the RO, the Veteran appealed the issue to the Board. In December 2013, the Board denied the Veteran's increased rating claim. The Veteran initially appealed the denial to the United States Court of Appeal for Veterans Claims (Veterans Court) but voluntarily dismissed the claim in July 2014. The Veteran filed a new increased rating claim for his service-connected epididymitis in May 2015 and accordingly the Board will address the evidence submitted from this date. At a July 2015 VA examination, the conducting physician indicated that the Veteran has voiding dysfunction which causes leakage which requires absorbent material that must be changed 2 to 4 times per day. The physician opined that the cause of the Veteran's voiding dysfunction was benign prostatic hypertrophy. The physician also indicated that the Veteran's voiding dysfunction results in daytime voiding interval between 1 and 2 hours and nighttime awakening to void 2 times. The physician noted that Veteran does not have any renal dysfunction. The physician did not identify any hydrocele of the right testicle. At a February 2019 VA examination, the conducting physician indicated that the Veteran had a diagnosis of left scrotal pain, sequelae of hydrocele surgery. The physician indicated that the Veteran had no voiding dysfunction, nor did he have a history of chronic epididymitis, epididymo-orchitis or prostatitis. The physician was unable to fully evaluate the Veteran's left and right testicles due to excessive adipose tissue of the suprapubic soft tissues pressing into and over the scrotum but noted that the upper left scrotum was tender. The physician noted that Veteran does not have any renal dysfunction. At a November 2020 VA examination, the Veteran explained that he still has pain in his scrotum area and he has been prescribed medication for this condition. The physician noted that the Veteran has a voiding dysfunction which is caused by benign prostatic hyperplasia and taking a diuretic. The Veteran stated that he has frequent urination because of his prescribed Bumetanide, and he wears adult diapers which must be changed every time he goes, approximately 8-9 times per day. The physician indicated that the Veteran wears absorbent materials which must be changed 2 to 4 times per day. The physician also indicated voiding dysfunction causes urinary frequency which results in daytime voiding interval between 1 and 2 hours. The physician explained that the Veteran's adiposity interfered with an evaluation of the Veteran's testicles. The physician noted that Veteran does not have any renal dysfunction. Analysis The Board finds that a rating in excess of the currently assigned 30 percent is not warranted for the Veteran's service-connected left epididymitis at any time during the pendency of the claim. The Board notes that a 30 percent evaluation is the highest rating available for urinary tract infections, and is meant to compensate a veteran with recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than 2 times per year), and/or requiring continuous intensive management. Because the current medical evidence does not demonstrate that the Veteran has such a disability, he is not entitled to a higher rating based on a urinary tract infection. 38 C.F.R. § 4.88b is meant to rate a veteran that suffers from infectious diseases, immune disorders and nutritional deficiencies. The record does not reflect that the Veteran suffers from any such condition and, as such, there is no basis for a higher evaluation under the code. 38 C.F.R. § 4.89 is meant to rate a veteran for inactive non pulmonary tuberculosis. The evidence of record fails to suggest that the Veteran has been diagnosed with tuberculosis. Accordingly, the criteria applicable to tuberculosis are not applicable to this case. The Board has also considered whether there are any other rating criteria applicable to the genitourinary system that may permit a higher rating in this case. A higher rating of 60 percent is warranted when there is evidence of renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. 38 C.F.R. § 4.115a. In this case, the results of the July 2015, February 2019 and November 2020 VA examinations indicate that the Veteran does not have any renal dysfunction. The Veteran is service connected for hypertension but does not have a 40 percent rating. As such, there is no basis for a higher evaluation based on renal dysfunction or hypertension. A higher evaluation of 60 percent is also available when there is urinary leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. At the November 2020 VA examination, the Veteran explained that he wears adult diapers which must be changed every time he goes, approximately 8-9 times per day. However, the July 2015 and November 2020 VA examiners indicated that the Veteran's urinary leakage was not due to his service-connected epididymitis but rather a non-service-connected prostate condition along with the taking of a diuretic. A higher rating of 40 percent is available based on urinary frequency when there is evidence of daytime voiding interval less than one hour or awakening to void five or more time per night. While the evidence of record indicates that the Veteran has urinary frequency, the July 2015 and November 2020 VA examiners indicated that it was caused by a non-service-connected prostate condition along with the taking of a diuretic. Moreover, the results of the July 2015 examination indicate that the Veteran's voiding dysfunction results in daytime voiding interval between 1 and 2 hours and nighttime awakening to void 2 times. Therefore, there is no basis for a higher rating for epididymitis based on urinary frequency. While the Board has considered all diagnostic criteria potentially associated with the genitourinary system, there is no basis upon which a schedular evaluation in excess of 30 percent can be assigned. Accordingly, this issue on appeal must be denied. Entitlement to a TDIU rating prior to May 4, 2015 is denied Legal Criteria It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "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 (a)(1), 4.15. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). According to 38 C.F.R. § 3.400(o)(2), the effective date of an increase in compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the date of receipt of the claim. See 38 C.F.R. § 3.400 (o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). Factual Background As indicated above, the Veteran voluntarily dismissed his claim for an increased rating for service-connected epididymitis in July 2014 and then filed a new claim for benefits which was received on May 4, 2015. In its November 2019 decision, the Board added the issue of entitlement to a TDIU, on the basis that entitlement to a TDIU was fundamentally part and parcel of the underlying claims for increase and for entitlement to service connection. See Rice supra. In a December 2019 rating decision, the RO deferred making a decision on the Veteran's TDIU claim. During the pendency of the appeal, the RO granted the Veteran's TDIU claim in a January 2021 rating decision, effective May 4, 2015. Analysis The Board finds that the Veteran is not entitled to an earlier effective date to a TDIU rating. While the Veteran indicated in a December 2012 correspondence that he was unemployable during the pendency of his increased rating claim for epididymitis, the Veteran dismissed this appeal in July 2014. As such, the March 2014 Board decision denying the Veteran's claim in March 2014 is final and the earliest effective date for benefits is May 4, 2015. Thus, even assuming entitlement arose prior to May 4, 2015, because that constitutes the date of claim in this matter, it is the earliest available date for entitlement to a TDIU. Accordingly, entitlement to a TDIU rating prior to May 4, 2015 is denied. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED