Citation Nr: 21040993 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-41 981 DATE: July 7, 2021 ORDER Entitlement to service connection for a stomach disability, for accrued benefits purposes, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), for accrued benefits purposes, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's stomach disability began during active service or is otherwise related to an in-service injury or disease. 2. The rating assigned for the Veteran's service-connected disability did not meet the percentage requirements of 38 C.F.R. § 4.16(a) for an award of TDIU, and a referral to the Director of Compensation for extraschedular consideration is not warranted. CONCLUSIONS OF LAW 1. The criteria for service connection for a stomach disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1969 to September 1971. The Veteran passed away in June 2014 and the above-mentioned issues were pending appeal at the time of his death. The appellant is the Veteran's surviving spouse and has been properly substituted to pursue the appeal. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Board remanded the matters to the agency of original jurisdiction (AOJ) for further development. The requested development has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The claim for the Veteran's cause of death is not before the Board as an untimely VA Form 9 was filed after the issuance of an April 2018 statement of the case (SOC). The appellant was notified regarding the untimely VA Form 9 in a July 2018 correspondence from the RO. Service Connection Service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In each case where a veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a stomach disability is denied. During his lifetime, the Veteran asserted that he had a stomach disability that was due to his military service, or in the alternative, related to his exposure to Agent Orange from his service in the Republic of Vietnam. Prior to his death, the Veteran was afforded a VA examination in July 2013. The Veteran reported experiencing abdominal pain and severe episodes of nausea and vomiting. He stated he could only eat ice cream. Since surgery and with medication, the Veteran noted his symptoms had been under control. He reported he had not had similar symptoms while he had been in service. The VA examiner confirmed a diagnosis of pancreatitis and gastrojejunostomy due to duodenal stricture and opined that the claimed condition was less likely than not incurred in or caused by service. The examiner explained that there was one note in service treatment records in September 1970 showing that the Veteran was treated for stomach cramps and vomiting, which was noted as gastroenteritis. There was no mention of any gastrointestinal (GI) problems on his separation examination and the Veteran had indicated that while in service, he had not experienced symptoms similar to his current stomach symptoms. The examiner noted that a repeat upper gastrointestinal series (UGI) was ordered for July 2013; however, there had been an issue with the equipment and the UGI had been canceled. An updated report had not been completed prior to the current VA examination. Review of VA treatment records reflect that in September 2013, an x-ray report of the upper GI was completed and found to be abnormal. The impression showed thickening of the gastric rugal folds, possible small sliding hiatal hernia, trace of spontaneous reflux, and left epigastric punctate radiodensities, possibly adrenal or renal calcifications. The report noted that due to cancellation of the first scheduled x-rays due to equipment problems, this last report was completed too late to be included in the last VA examination. Furthermore, a May 2014 computerized tomography (CT) scan of the chest, abdomen, and pelvis showed that the Veteran had a very aggressive tumor in the fundus of the stomach. In September 2019, the Board remanded the Veteran's claim, as there was no VA medical opinion addressing whether his stomach disability was causally related to exposure to herbicide agents. An addendum medical opinion was obtained in November 2019. The VA examiner reviewed the Veteran's claims file and noted that a September 1970 service treatment record reflected treatment of gastroenteritis with symptoms of abdominal cramping and emesis. The August 1971 separation examination indicated there were no GI issues and no abnormal findings to support a chronic or ongoing GI condition. The examiner explained that gastroenteritis is an inflammatory condition involving both the stomach and small intestine as secondary to viral or bacterial infection causing symptoms of diarrhea, vomiting, abdominal pain, and cramping. Gastroenteritis is a temporary and not chronic condition and is unlikely to cause residuals. The examiner noted that the Veteran's in-service gastroenteritis was temporary, which explained the lack of an ongoing condition on his separation examination. The examiner also noted a July 2000 CT scan that reflected changes consistent with chronic pancreatitis and that this diagnosis was not made within a year of the Veteran's separation from service. The examiner explained that chronic pancreatitis is an inflammatory process with resultant fibrosis of normal pancreatic tissue. The condition may be etiologically related to intraductal plugging from ethanol, stones or tumors, toxin, necrosis, ischemia, or an autoimmune disorder. About 10% are idiopathic in etiology. Symptoms can include chronic abdominal pain especially with radiation to the back area and chronic diarrhea. Symptomatic obstruction of the bile duct and/or duodenum develops in 5-10% of patients with chronic pancreatitis. This can explain the duodenal structure arising from or caused by the chronic pancreatitis. The examiner noted there was no continuation of symptomatology between the Veteran's separation from service and the development of chronic pancreatitis with associated duodenal stricture. The examiner indicated that these symptoms were usually severe and required medical treatment. Therefore, there was no evidence that this condition occurred until about 2000. The examiner further explained that while the Veteran could report GI symptoms, the etiology and diagnosis could not be determined by lay observation and the evidence did not indicate the onset of a condition or diagnosis prior to 2000. The examiner determined that based on the evidence in service and post-service treatment records, the scientific validation of an etiological or causative association between pancreatitis and stricture and herbicide exposure related to or based on epidemiological or scientific studies, on environmental exposures, or on occupational exposures during deployment in the Veteran could not be established. In July 2020, the Board again remanded the issue to obtain a new addendum opinion, finding that the November 2019 medical opinion was unclear as to whether the VA examiner had considered a 2013 x-ray report of the upper GI and a May 2014 CT scan when forming his opinion. An addendum opinion was issued in July 2020. After review of the Veteran's claims file, including consideration of the August 2013 x-ray and the May 2014 CT scan, the examiner opined that GERD, hiatal hernia or possible stomach cancer were less likely than not related to active service, including exposure to herbicides. The examiner initially noted there was insufficient evidence to determine or suggest a causative association between herbicides and the Veteran's conditions. Similar to the opinion expressed by the November 2019 VA examiner, this examiner agreed that based on the evidence found in service and post-service treatment records, the scientific validation of an etiological or causative association between pancreatitis and stricture and herbicide exposure related to or based on epidemiological or scientific studies, on environmental exposures, or on occupational exposures during deployment in the Veteran could not be established. The majority of scientific evidence did not support an equipoise argument supporting bladder cancer being etiologically related to herbicide exposure. The examiner concluded that review of the evidence did not support a nexus etiologically linking bladder cancer directly to military service, herbicide exposure, or to another service-connected condition. In April 2021, the Veteran's representative submitted a private opinion from Dr. T. G. reflecting his opinion that the Veteran smoked and drank alcohol to self-treat the symptoms of his service-connected posttraumatic stress disorder (PTSD). This ultimately caused the Veteran's disabilities, including stomach, lung, pancreatic and bladder cancer. Dr. T. G. indicated that he agreed with the November 2019 VA examiner that the Veteran's stomach disability was less likely related to his active service, as there was no scientific evidence to support direct correlation between Agent Orange exposure and the claimed upper gastrointestinal disorders of GERD, hiatal hernia, chronic pancreatitis or duodenitis. While acute pancreatitis could result from herbicide exposure, this was not the case here. Following review of the Veteran's claims file, the Board notes a May 2014 treatment record reflecting that the Veteran denied alcohol use and admitted to smoking cigarettes for the past 30 years, a period prior to his diagnosis of PTSD. Further, the Board finds the April 2020 private medical opinion speculative and overbroad as to the cause of the Veteran's cancers, specifically that they could have been caused by smoking and drinking. For these reasons, the Board assigns the opinion less probative value than the rest of the evidence of record, including VA medical opinions. The Board has also considered lay statements from the Veteran and appellant indicating that the Veteran's stomach disability was related to service. As lay persons, the Veteran and appellant are competent to testify to observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, as a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability); Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran and appellant are not competent to provide medical conclusions as to whether a disability is due to military service. See Buchanan v. Nicholson, 451 F.3d 1331 -37 (Fed. Cir. 2006); see also Miller v. Derwinski, 3 Vet. App. 201, 204 (1992). Therefore, to the extent that the Veteran and appellant are claiming that his claimed stomach disabilities were related to active duty, to include exposure to herbicides, they are not competent to comment as to the etiology of these disabilities, as the relationship goes beyond an immediately observable cause-and-effect relationship. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board recognizes the Veteran's service to the nation and is sincerely empathetic to the appellant's loss of her husband. However, it must apply the laws and regulations as drafted. Based on the forgoing, entitlement to service connection for a stomach disability is denied. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). 2. Entitlement to TDIU The appellant contends that TDIU is warranted because the Veteran was unable to maintain a substantially gainful occupation as a result of his service-connected PTSD. A review of the record shows that the Veteran was service connected for PTSD and granted a 30 percent evaluation from February 2012. His total combined evaluation was 30 percent. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment 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). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A TDIU may be assigned 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. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Here, the Veteran did not meet the schedular criteria for TDIU. However, if a veteran does not meet the schedular requirements for consideration of entitlement to TDIU, a TDIU evaluation can still be awarded if it is established by the evidence of record that the service-connected disabilities have rendered the veteran unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of the Compensation Service for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). The Board is precluded from assigning TDIU on an extraschedular basis in the first instance. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Entitlement to a total rating must be based solely on the impact of the veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). The term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) has two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). In a claim for TDIU, the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the adjudicator, not a medical examiner"). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. A review of the Veteran's past mental health VA examination in the record shows that the impact of his PTSD on his ability to maintain a substantially gainful occupation has been documented. During an October 2012 VA examination, the Veteran reported that he dropped out of high school, and then worked construction jobs before being drafted into the military. After service, he went to trade school for drafting and machine work. The Veteran also worked at a liquor store and was a machine shop apprentice for two years. He then relocated and worked at a machine shop for approximately eight years. The Veteran then worked at a copper company for 2 years prior to again relocating in 2009. Following his move, the Veteran was laid off and was not able to find work afterward. When asked about the effects of mental health issues on his work by the VA examiner, the Veteran responded that he had no real problems with work at all and never missed work. As PTSD was the Veteran's only service-connected condition, the Board may not consider the impact of nonservice-connected conditions in assessing whether referral for an extraschedular consideration to the Director of Compensation is warranted. Based on the evidence of record, the Veteran was not unable to maintain a substantially gainful occupation solely due to his service-connected PTSD. The Veteran himself indicated that his mental health issues had no real effect on his work. The level of severity and symptomatology of the Veteran's PTSD and the established criteria found in the rating schedule as a whole reflect that the Veteran's disability picture was adequately contemplated by the rating schedule. Any functional impairment is not shown to be exceptional in nature. Thus, referral for an extraschedular consideration to the Director of Compensation is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008); Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019); Long v. Wilkie, Vet. App. No. 16-1537 (2020). Based on the forgoing, entitlement to TDIU is denied. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.