Citation Nr: 22018672 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 16-01 985 DATE: March 30, 2022 ORDER Entitlement to service connection for coccidiomycosis is denied. Entitlement to service connection for a disorder claimed as mini-strokes, secondary to coccidiomycosis, is denied. Entitlement to service connection for meningitis, secondary to coccidiomycosis, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is against finding that coccidiomycosis began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran has not been granted service connection for coccidiomycosis. CONCLUSIONS OF LAW 1. The criteria for service connection for coccidiomycosis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a disorder claimed as mini-strokes, secondary to coccidiomycosis, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for meningitis, secondary to coccidiomycosis, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1967 to August 1970. This matter is on appeal from an August 2013 rating decision. The issues were previously before the Board in April 2019 and August 2021 when they were remanded for further development. Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain outstanding Social Security Administration (SSA) disability benefits records and to provide the Veteran with examinations and obtain opinions. A response was received in September 2021 that there are no available SSA disability benefit records and opinions and examinations were obtained. Thus, the Board finds there has been substantial compliance with its prior remand directives and that it may appropriately proceed with adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. §§ 3.310(a)-(b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993) (explaining 38 C.F.R. § 3.310(a)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. § 3.310(b)). 1. Entitlement to service connection for coccidiomycosis In a June 2012 statement, the Veteran claimed that his coccidiomycosis is related to his active-duty service, specifically his basic training time in Fort Bliss, Texas, in 1967. He claimed that he "may have had mild symptoms at that time." The Veteran's service treatment records are silent for any signs or symptoms of coccidiomycosis. The Veteran's post service medical records include VA treatment records from October 2011 where the Veteran reported having chills and sweats for one month. He also reported that he was feeling tired and was unable to work. He was noted to probably have primary coccidiomycosis. The Veteran was provided with a VA infectious diseases examination in March 2013 where he was noted to have a diagnosis for coccidiomycosis-pulmonary and coccidiomycosis-disseminated. The Veteran was provided with a VA respiratory examination in November 2019 where he reported that he believed he got coccidiomycosis from marching and crawling through the desert when stationed in Fort Bliss. He was noted to have a history of pulmonary coccidiomycosis with residual pulmonary nodules. The VA examiner opined that the Veteran's coccidiomycosis was not at least as likely as not due to his service, to include his basic training in Fort Bliss. The examiner noted that the Veteran was diagnosed with the initial infection in October 2011, and "primary cocci infections generally occur 7 to 21 days after exposure to the organism." The examiner noted that although cocci was endemic in the Fort Bliss region, it was much more common in Tempe, Arizona, where the Veteran had "been living for more than 5 years prior to the primary infection." He concluded that "the evidence does not support a nexus between his current condition and his military service which was more than 40 years prior to the onset of disease." The Veteran was provided with a VA medical opinion in December 2021 where the VA examiner found that the Veteran's coccidiomycosis was less likely than not due to his service because he found no records indication a chronic or recurrent problem beginning in service. The examiner noted that "the fact that cocci can lay dormant for years, even decades is not indicative of his having contracted the infection while in the military," adding that "such presumption is purely speculative." He noted that the Veteran also lives in Arizona, where coccidiomycosis is endemic, adding that the CDC website shows that "cocci is endemic in all of AZ versus only parts of Texas." The examiner noted that the Veteran may have contracted the infection in the decades since his separation from service, and any correlation with his time in service would be "purely and entirely speculative." In a January 2022 VA addendum medical opinion, the VA examiner added that he "found no objective evidence that the vet contracted cocci in service or was ever diagnosed with coccidiomycosis in the service." The November 2019, December 2021, and January 2022 VA medical opinions in combination are considered the most probative evidence of record regarding whether the Veteran's coccidioidomycosis is the result of his active-duty service, as they are based upon all relevant facts, are supported by well-reasoned rationales, and are consistent with the other evidence of record. In addition, the Board notes that coccidioidomycosis was not noted while on active duty and the record does not indicate that the Veteran had coccidioidomycosis within one year of his separation from service. The record also does not indicate that coccidioidomycosis manifested to a compensable degree within one year from separation from service. Accordingly, service connection may not be granted on a presumptive basis. 38 C.F.R. § 3.309(a). The Board has considered the Veteran's assertion that his coccidioidomycosis is related to his service. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology of fungal and lung diseases. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Further, the Board notes that aside from the Veteran's own statements, the evidence of record does not contain any evidence suggesting a link between his coccidioidomycosis and his service. There is no other evidence of a relationship between the Veteran's coccidioidomycosis and service, and neither the Veteran nor his representative have alluded to the existence of any such evidence. Thus, the preponderance of the evidence is against a finding that the Veteran's coccidioidomycosis had its onset in service or within a first post-service year, or that it is otherwise related to service. Accordingly, the Board finds that service connection for coccidioidomycosis has not been established and the claim must be denied. As the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a disorder claimed as mini-strokes, secondary to coccidiomycosis 3. Entitlement to service connection for meningitis, secondary to coccidiomycosis The Veteran claims that he has mini-strokes and meningitis as a result of his coccidiomycosis. Because the Veteran has not raised, and the record does not reasonably raise entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or is aggravated beyond its natural progress by a service-connected disability. Although the Veteran has been diagnosed with microvascular infarcts and meningitis, he has not been granted service connection for his coccidiomycosis. The Board acknowledges the December 2021 VA medical opinion linking the Veteran's mini strokes to his coccidiomycosis and the June 2020 and December 2021 VA medical opinions linking his meningitis to his coccidiomycosis. However, as the Veteran's claim for entitlement to service connection for coccidiomycosis is denied in this decision, the Veteran's mini-strokes and meningitis cannot be granted service connection on a secondary basis. Accordingly, the Board finds that service connection for mini-strokes and meningitis on a secondary basis have not been established and the claims must be denied. In denying such rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5170; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to TDIU The Veteran contends that he is unable to work due to his service-connected disabilities. On the March 2022 Appellate Brief, the Veteran's representative argued that the Veteran's service-connected disabilities have worsened. As such, the Board finds that the issue of entitlement to a TDIU must be remanded in order to provide the Veteran with new VA examinations to assess the current severity of his service-connected disabilities. The Board notes that the Veteran has been awarded service connection for bilateral hearing loss at a noncompensable rate from May 3, 2012, and at 10 percent disabling from July 28, 2020; and tinnitus at 10 percent disabling from May 3, 2012. As such, the Veteran does not currently meet the scheduler requirements for TDIU under 38 C.F.R. § 4.16(a). However, although the Veteran does not currently meet the schedular criteria under 38 C.F.R. § 4.16(a), the Board must consider whether the Veteran is rendered unemployable due to his service-connected disabilities to warrant referral for extraschedular consideration for TDIU under 38 C.F.R. § 4.16(b). The Board cannot address this question in the first instance, however. Floyd v. Brown, 9 Vet. App. 88, 95 (1996). Rather, it must be referred to the Director of Compensation Service for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1 (2001). VA hearing loss examinations from April 2015 and July 2020 indicate that the Veteran's hearing loss impacts his ability to work because he talks too loudly, wears binaural amplification, and cannot hear. A VA tinnitus examination from April 2015 indicates that the Veteran's tinnitus impacts his ability to work because the tinnitus is bothersome. The determination of whether a case should be referred for an extraschedular TDIU determination under 38 C.F.R. § 4.16(b) is a lower standard than a determination on whether TDIU is warranted. See Snider v. McDonough, __ Vet. App. ___ No. 19-6707 (November 19, 2021). In determining whether a referral is warranted, the Board must address whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities. See Ray, supra. As there is some evidence suggesting that the Veteran has difficulty hearing and his tinnitus bothers him to the point of impacting his ability to work, the Board finds that an opinion is needed. If the Veteran is not awarded disability ratings that meet the scheduler requirements for TDIU under 38 C.F.R. § 4.16(a) following his new VA hearing loss and tinnitus examinations, then the matter should be referred to the Director of Compensation Service for extraschedular consideration of TDIU. Moreover, because the Veteran's most recent application for entitlement to TDIU is dated in 2015, and because it is unclear if he has worked since then, VA should request that he submit a more recent application. The Veteran is informed his claim may be considered abandoned if he fails to respond to a request to submit a required form or necessary evidence, such as the aforementioned application for entitlement to TDIU, within one year of notice. See 38 C.F.R. § 3.158. While this case is in remand status, all outstanding VA treatment records must be obtained and associated with the evidence of record before the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Invite the Veteran to submit an updated VA Form 21-8940 (Application for Individual Unemployability). The Veteran is informed his claim may be considered abandoned if he fails to respond to this request to submit this required form within one year of notice. See 38 C.F.R. § 3.158. 2. Obtain all outstanding VA treatment records and associate them with the evidence of record. 3. Following completion of steps 1 and 2, schedule the Veteran for an examination or examinations by an appropriate clinician regarding the current severity of his service-connected hearing loss and tinnitus disabilities. The examiner should identify all limitations or functional impairment caused solely by the service-connected disabilities. (CONTINUED ON NEXT PAGE) 4. If the VA hearing loss and tinnitus examinations do not warrant increased ratings that would meet the scheduler requirements for TDIU under 38 C.F.R. § 4.16(a), refer the claim of entitlement to TDIU on an extraschedular basis to the VA Director of the Compensation and Pension Service for an extraschedular consideration under 38 C.F.R. § 4.16(b). J. O'Connell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.