judge_norm: VICTORIA MOSHIASHWILI

benefit: reduction

condition: respiratory

text:
Citation Nr: 1714000
Decision Date: 04/28/17    Archive Date: 05/05/17

DOCKET NO.  12-12 970	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon

THE ISSUES

1.  Entitlement to restoration of a 60 percent rating for service-connected asthma.

2.  Entitlement to increased ratings for service-connected asthma, currently assigned "staged" ratings of 60 percent prior to June 23, 2008 and 30 percent from that date.

3.  Entitlement to an effective date prior to September 21, 2005 for an award of a total disability rating based on individual unemployability due to service-connected disability (TDIU).

REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs

ATTORNEY FOR THE BOARD

M. Yuan, Associate Counsel

INTRODUCTION

The appellant is a Veteran who served on active duty from June 1974 to June 1977.  These matters are before the Board of Veterans' Appeals (Board) on appeal from September 2008 and March 2010 rating decisions of the Portland, Oregon Department of Veteran Affairs (VA) Regional Office (RO) that, in pertinent part, reduced the rating for asthma from 60 to 30 percent and awarded an earlier effective date of September 21, 2005 for TDIU.  The case was previously remanded by another Veterans Law Judge (VLJ) in July 2015; it is now before the undersigned.

The issue of entitlement to an increased rating for asthma is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  In December 2005, the AOJ awarded an increased 60 percent rating, effective September 28, 2001, for service-connected asthma based, essentially, on a finding that the Veteran required daily use of a systemic (oral or parenteral) corticosteroid as contemplated by the criteria for that rating.

2.  In a September 2008 rating decision, the AOJ reduced that rating from 60 to 30 percent (and also granted TDIU from January 26, 2006); at that time, the 60 percent rating had been in effect for more than five years.

3.  Medical evidence in the record at the time of, and since, the September 2008 reduction consistently shows the Veteran has not required any systemic (oral or parenteral) corticosteroids since December 2005; has not required at least monthly visits to a physician for required care of exacerbations; and has not had pulmonary function tests showing FEV-1 of 40 to 55 percent of predicted values or FEV-1/FVC ratio of 40 to 55 percent.

4.  The Veteran's original September 21, 2005 claim alleging his asthma rendered him unemployable was received during the pendency of an underlying claim for increased rating; therefore, it was part and parcel of that claim, which was received on February 2, 2005.

5.  The evidence reasonably shows that the Veteran's service-connected disabilities rendered him unable to obtain or follow substantially gainful employment from February 2, 2004 (one year before his increased rating claim was received).

CONCLUSIONS OF LAW

1. The September 2008 reduction of the rating for asthma from 60 to 30 percent was proper; the criteria for restoration of a 60 percent rating for such disability are not met.  38 U.S.C.A. �� 1155, 5107 (West 2014); 38 C.F.R. � 3.105, 3.344, 4.2, 4.10, 4.97, Diagnostic Code (Code) 6602 (2016).

2.  An earlier effective date of February 2, 2004 is warranted for the Veteran's TDIU rating.  38 U.S.C.A. �� 5101, 5110 (West 2014); 38 C.F.R. �� 3.151, 3.155, 3.400 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits, and applies to the instant claim.  See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a).  Inasmuch as this decision grants the claim seeking an earlier effective date for TDIU and remands the increased rating claim, there is no reason to belabor the impact of the VCAA on the matter; any notice or duty to assist omission is harmless.

With respect to the Veteran's appeal of the September 2008 reduction, VA's governing regulations provide for unique notification and due process requirements that will be discussed as part of the substantive analysis below.  See 38 C.F.R. � 3.105.  Thus, the provisions of the VCAA do not apply to that matter.

Nonetheless, the Board notes that the Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured.  The reduction on appeal was based on a review of the Veteran's treatment records and an April 2008 VA examination (with June 2008 addendum).  Since then, additional VA examinations evaluating the Veteran's asthma were conducted in November 2009 and October 2015.  Together, these examinations adequately describe the severity, impairment, and treatment associated with the Veteran's asthma to allow for application of the relevant rating criteria.  Moreover, the Board notes that, while post-reduction evidence may certainly be relevant in the context of evaluating whether the Veteran's asthma has, indeed, improved, the analysis in such a claim is primarily focused on the evidence available to the AOJ at the time the reduction was implemented.  See 38 C.F.R. � 3.344 (providing that ratings for diseases subject to temporary or episodic improvement may not be reduced based on a single examination, except where "all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated"); but see Dofflemeyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992) (holding that "after-the-fact justification cannot resurrect a flawed rating" if the original decision was "in derogation of the regulations promulgated by the Secretary").

Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence in the record.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims.

Propriety of Reduction

Under 38 C.F.R. � 3.105(e), when a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.  Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.

Furthermore, 38 C.F.R. � 3.344 provides additional requirements for ratings that, as here, have been in effect for five or more years.  Specifically, examinations less full and complete than those on which payments are authorized or continued will not be used as a basis of reduction.  Moreover, ratings on account of diseases subject to temporary or episodic improvement (e.g., bronchial asthma) will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.  VA must also ensure that the evidence makes reasonably certain that any material improvement will be maintained under the ordinary conditions of life.

Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability.  See 38 U.S.C.A. � 1155; 38 C.F.R. �� 3.321(a), 4.1.  When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. � 4.7.

The Veteran's asthma is rated under Diagnostic Code 6602, under which a 30 percent rating is warranted for pulmonary function tests (PFTs) showing FEV-1 values of 56 to 70 percent of predicted values, or; FEV-1/FVC ratio of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication.  A higher 60 percent rating is warranted for FEV-1 of 40 to 55 percent of predicted values, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids.  38 C.F.R. � 4.97, Code 6602.  In addition, the Board notes that, when evaluating based on PFTs, VA is to use post-bronchodilator results unless the post-bronchodilator results were poorer than pre-bronchodilator results, in which case the latter should be used instead.  38 C.F.R. � 4.96(d)(5).  When there is a disparity between the results of different PFTs (e.g., FEV-1, FVC, or FEV-1/FVC) such that the evaluation would be different depending on which test was used, the Board must use the test result that the examiner states most accurately reflects the level of disability.  38 C.F.R. � 4.96(d)(6).

Procedurally, it is clear that the AOJ did not provide the notice and response time required by 38 C.F.R. � 3.105(e).  However, the September 2008 rating decision implementing the reduction (effective June 23, 2008) also granted the Veteran TDIU from January 26, 2006.  Thus, the Veteran's effective rating for compensation purposes actually increased as a result of the September 2008 decision.  Therefore, the provisions of 38 C.F.R. � 3.105(e) do not apply, and the Board will proceed to discuss whether the evidence reasonably shows material improvement that may be sustained under the ordinary conditions of life warranting a reduction.

At the outset, the Board notes that the December 2005 decision awarding a 60 percent rating for asthma was explicitly based solely on the fact that the Veteran used Flunisolide, a corticosteroid, to treat his asthma.  In fact, the AOJ expressly indicated at that time that the Veteran's PFT results did not warrant a higher rating.  Therefore, although the AOJ did not make an explicit finding to this effect, it is presumed that the Veteran's requisite daily use of Flunisolide was deemed to satisfy the criteria for a 60 percent rating requiring "intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids."  38 C.F.R. � 4.97, Code 6602.

The August 2005 examination report referenced in the December 2005 decision noted that the Veteran used four oral inhalers (Flunisolide, Formoterol, Cromolyn, and Albuterol) to control his asthma.  He felt he would be unable to do anything without all four medications, alleging that he would be "nearly completely incapacitated and would have to stay in the house fairly sedentary all the time just to control his breathing."  He reported an occasional cough without sputum or hemoptysis.  He reported he could not walk more than 200 yards without stopping for shortness of breath if he did not use inhalers.  He also said he cannot carry anything, and could "hardly be active at all."  He had no memory of going to the hospital for asthma attacks or having such severe shortness of breath that he needed assistance of that type.  The examiner noted that May 2005 prebronchodilator PFTs showed FVC at 94 percent of predicted values, FEV-1 at 73 percent, and a FEV-1/FVC ratio of 57 percent.  However, postbronchodilator PFTs showed FVC at 97 percent, FEV-1 at 95 percent, and a FEV-1/FVC ratio of 72 percent.

The Veteran's VA treatment records show he was prescribed Flunisolide for both nasal allergies and asthma until at least June 22, 2006.  However, on July 2006 VA examination, the examiner noted his active outpatient medications for breathing problems included Mometasone (which replaced Flunisolide in this capacity), Cromolyn, Levalbuterol, and Formoterol.  Although it appears Flunisolide was still being used, the prescription specifically notes that it was used to treat nasal allergies rather than breathing difficulties.  The Veteran said if he left the house without one of the two inhalers that he took for "rescue during the day" he has to limit his activity while he is out to prevent himself from needing one of those inhalers.  This caused him to be anxious and he said he "nearly panics if he does not have rescue inhaler with him at all times."  He denied being hospitalized for shortness of breath or having any asthma attacks.  However, he did report chronic shortness of breath and tightness in the chest.  He said he had been using inhaled steroids for about ten years without side effects.  Pre-bronchodilator PFTs showed FVC at 105 percent of predicted values, FEV-1 at 98 percent, and a FEV-1/FVC ratio of 68 percent.  Post-bronchodilator PFTs found FVC at 103 percent of predicted values, FEV-1 at 102 percent, and a FEV-1/FVC ratio of 73 percent.

On April 2008 VA examination, the Veteran said he could walk one block without stopping to use his inhaler.  He could also walk up the five steps of his front porch without stopping due to shortness of breath.  He doubted he could walk a full flight of stairs without stopping due to shortness of breath, and had not walked up a flight of stairs in years.  He denied any asthma attacks at the time, but said he doesn't go anywhere or do much because of his shortness of breath.  He continued to use the same four inhalers (Cromolyn, Mometasone, Formoterol, and Albuterol).  He denied taking any steroids other than inhaled steroids in over ten years.  He also denied taking any antibiotics for upper respiratory infections in over ten years or any emergency room or primary care visits in the prior three years for upper respiratory infection symptoms.  The examiner noted no episodes of incapacitation in the prior year.  The Veteran said he had to schedule his life around his breathing ability and perform tasks in short bursts.  He said he would do things more in the morning because he becomes fatigued in the afternoons due to sleep apnea.  He could not go anywhere without at least one inhaler because he would develop panic and possible panic attacks.  He said his breathing and finances severely limited his activities.  On examination, he had to stop twice for coughing while walking 250 yards.  He also had to use his inhaler once.  Prebronchodilator PFTs found FVC at 99 percent of predicted values, FEV-1 at 92 percent, and a FEV-1/FVC ratio of 68 percent.  Postbronchodilator PFTs found FVC at 103 percent of predicted values, FEV-1 at 102 percent, and a FEV-1/FVC ratio of 72 percent.

A June 2008 addendum opinion clarified that the Veteran did take corticosteroids (specifically, Mometasone), but that such was inhaled and not systemic.  She further explained that the Veteran was "steroid-dependent," but did not risk adrenal insufficiency with withdrawal of his inhaled steroids as he would with systemic steroids.  The examiner also noted that he visited his primary care physician annually to keep his inhaler prescriptions active, but had not had to seek medical care for acute events in the prior few years.

On November 2009 VA examination, the Veteran said he experienced dyspnea on exertion and felt he would be short of breath at rest without using his inhalers.  The examiner noted four oral inhalers were prescribed for asthma at the time (Albuterol, Cromolyn, Formoterol, and Mometasone).  He reported asthmatic attacks two to four times a month, despite regular inhaler use.  However, he did not require intermittent courses of systemic (oral or parenteral) corticosteroids or at least monthly visits to a physician for required care of exacerbations of asthma.  The examiner noted that the Veteran was "very compliant with his medication regimen, and is thus able to control exacerbations to some extent."  He apparently visited his primary care physician annually to keep his inhaler prescriptions active.  The examiner noted no episodes of incapacitation in the prior year.  Pre-bronchodilator PFTs found FVC at 98 percent; FEV-1 at 94 percent; and a FEV-1/FVC ratio of 69 percent.  Post-bronchodilator PFTs found FVC at 100 percent; FEV-1 at 99 percent; and a FEV-1/FVC ratio of 71 percent.

March 2010 VA treatment records show the Veteran reported lifelong dyspnea and exercise intolerance.  Specifically, he reported dyspnea whenever he would sweat, which the provider noted suggested it occurred with exertion.  However, the provider noted that multiple prior PFTs had been normal, except for some small airway disease without progression.  A PFT at that time showed prebronchodilator FVC at 94 percent of predicted values; FEV-1 at 80 percent of predicted values; and a FEV-1/FVC ratio of 77 percent.  Post-bronchodilator testing showed FVC at 99 percent of predicted values; FEV-1 at 98 percent of predicted values; and a FEV-1/FVC ratio of 72 percent.

In April 2014, VA active outpatient medication lists indicate the Veteran ceased the previous four inhalers (Mometasone, Cromolyn, Formoterol, and Levalbuterol) and began using just two inhalers (Budesonide and Albuterol).  Records indicate he used those until at least October 2015.  On October 2015 VA examination, the examiner noted his asthma required daily use of inhalational bronchodilators, but did not require the use of oral or parenteral steroids or oral bronchodilators.  He also denied requiring the use of an emergency room or urgent care for his asthma in the prior year.  He did not cough up sputum or wake up with dyspnea during the night.  His dyspnea was worse during allergy season and when there is smoke in the air from regional fires.  The Veteran denied requiring oral bronchodilators, antibiotics, or outpatient oxygen therapy to treat his asthma.  He had not had any asthma attacks with episodes of respiratory failure in the prior 12 months or visited the doctor for required care of exacerbations.  There were no scars related to his asthma and the examiner noted no other pertinent physical findings.  Post-bronchodilator PFTs showed FVC at 96 percent of predicted values, FEV-1 at 92 percent of predicted values, and a FEV-1/FVC ratio of 100 percent.  Pre-bronchodilator PFTs showed FVC at 91 percent of predicted values, FEV-1 at 82 percent of predicted values, a FEV-1/FVC ratio of 90 percent.  The examiner felt the FEV-1 tests most accurately reflected the Veteran's level of disability.

As noted above, the only basis for the December 2005 award of a 60 percent rating was a finding that the prescription of Flunisolide constituted a corticosteroid consistent with the type of systemic (oral or parenteral) corticosteroid contemplated by the criteria of a 60 percent rating, though the AOJ never specifically identified it as such.  Notably, the evidence since the August 2005 VA examination, upon which that decision was based, consistently shows that (1) the Veteran has not had PFT results consistent with a 60 percent rating (i.e., FEV-1 and FEV-1/FVC values were all greater than 55 percent); and (2) his asthma did not require at least monthly visits to a physician for required care of exacerbations.  Thus, the question of whether the Veteran's asthma has materially improved in a manner that is sustainable under the ordinary conditions hinges on whether the nature of his asthma medications has changed.

To that end, the Board notes that VA treatment records show the Veteran continued to use Flunisolide through June 2006.  An active VA outpatient medication list dated June 22, 2006 specifically notes that Flunisolide was to be taken for asthma as well as for nasal allergies.  By the July 2006 VA examination, his active VA outpatient medication noted that Flunisolide was only prescribed for nasal allergies, and Mometasone was prescribed to replace Flunisolide to treat breathing difficulties.  The April 2008 VA examination report (with June 2008 addendum) clearly indicates that the four medications the Veteran was taking at that time (Mometasone, Cromolyn, Formoterol, and Levalbuterol) are not systemic steroids.  Therefore, even assuming arguendo that the Veteran did require intermittent use of systemic corticosteroids at the time of the December 2005 decision, it was no longer used to treat his asthma by the time of the September 2008 reduction.  Moreover, VA records show the Veteran continued to use those same four non-systemic medications (Mometasone, Cromolyn, Formoterol, and Levalbuterol) until late March 2014 and thereafter used Albuterol and Budesonide until at least October 2015.  The October 2015 examiner indicated that the Veteran did not require oral or parenteral steroids at that time.  Thus, the post-reduction evidence clearly indicates that systemic (oral or parenteral) corticosteroid therapy was not needed for roughly six years since the September 2008 reduction.  Consequently, notwithstanding the fact that the AOJ only had one examination report with an addendum opinion available at the time of the reduction on appeal, the totality of the evidence clearly warrants a conclusion that the Veteran's asthma has improved to the extent that any prior need for systemic therapy has long since subsided.

Accordingly, the preponderance of the evidence shows the Veteran's asthma has undergone sustained improvement, and the September 2008 reduction was both procedurally and substantively proper.  As such, the benefit of the doubt rule does not apply, and the appeal in this matter must be denied.

TDIU

The Veteran contends that an effective date prior to September 21, 2005 is warranted for TDIU.

A claim for TDIU is essentially a claim for an increased rating, and the effective date of an award based on a claim for increase shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. � 5110(a); 38 C.F.R. 3.400(o)(1).  However, the effective date for an increased rating may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability occurred within one year prior to the date of claim.  38 U.S.C.A. � 5110 (b)(2); 38 C.F.R. �� 3.400 (o)(1)-(2); see Harper v. Brown, 10 Vet. App. 125, 126 (1997).  Notably, a "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. � 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought.  38 C.F.R. � 3.155(a).

Here, the Board notes that the Veteran's current effective date, September 21, 2005, is based on the date that VA first received a claim alleging unemployability due to service-connected disability.  The correspondence in question alleged that the Veteran was rendered unemployable due, in part, to his service-connected asthma.  Prior to that, however, there is no evidence of any adjudications or allegations related to TDIU.  In so finding, the Board acknowledges that the Veteran has indicated, in a March 2010 statement, that he had previously applied for nonservice-connected pension, and that such applications implicitly alleged that his service-connected asthma rendered him unemployable.  Unfortunately, that characterization is not consistent with the actual evidence of record.  First, the Board notes that claims for nonservice-connected pension are obviously related to the effect of nonservice-connected disabilities.  Moreover, a review of the record shows that the Veteran applied for nonservice-connected pension in 1993, 1994, and 1998.  On none of these occasions did the Veteran suggest that his asthma (or any other disability) contributed to unemployability.  In fact, his claims simply indicated he sought entitlement to a pension without offering any further allegation or argument.  Furthermore, each of those claims was accompanied by separate claims seeking service connection for, among other things, a respiratory or lung disability related to chlorine gas inhalation in service.  Notably, that is the exact basis upon which asthma was eventually service-connected in August 1999.  Therefore, there is no reasonable basis for reading an implicit allegation that his asthma (for which he sought service connection) was also a factor contributing to his unemployability underlying his claim for nonservice-connected pension, as substantiation of the former claim would preclude consideration of asthma as part of the latter claim.  Thus, even reading the evidence incredibly liberally, there is no indication that the Veteran had submitted any formal or informal claims seeking TDIU prior to September 2005.

However, it is worth noting that the September 2005 correspondence was submitted during the pendency of a February 2, 2005 claim seeking an increased rating for his service-connected asthma.  Therefore, given he specifically alleged that his unemployability was due, in part, to the disability for which an increased rating was sought, the Board finds that TDIU claim must be considered as part and parcel of the increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009).  Consequently, the proper date of claim for purposes of this analysis must be the date the underlying increased rating claim was received-February 2, 2005-and the period on appeal begins one year before that date (February 2, 2004) and extends to the currently assigned effective date (September 21, 2005).

TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability.  38 C.F.R. �� 3.340, 3.341, 4.16.  The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  38 C.F.R. � 4.16 (a).  Here, during the relevant period on appeal, the Veteran was service connected for asthma (rated 60 percent throughout the period) and dysthymic disorder (rated 70 percent from February 2, 2005).  Thus, he certainly meets the schedular criteria for TDIU.  Consequently, the substantive question that must be resolved here is whether it is factually ascertainable, in the totality of the evidence, that the Veteran's service-connected asthma and dysthymic disorder rendered him unable to secure or follow substantially gainful employment between February 2, 2004 and September 21, 2005.

As an initial matter, the Board notes that no examinations or medical evaluations were conducted during the period on appeal that speak to the occupational impact of the Veteran's various disabilities.  However, VA examinations were conducted in July 2006, April 2008, and May 2008 that specifically address the effect of his asthma and dysthymic disorder on his ability to work.  Although these were conducted after the period on appeal, the fact that asthma was rated as 60 percent disabling from September 28, 2001 to June 23, 2008 and dysthymic disorder has been consistently rated 70 percent disabling since February 2, 2005 indicates such disabilities caused roughly the same degree of disability and impairment during the period on appeal as they did at the time of those examinations.  Thus, they remain insightful with respect to, and indeed are the only available evidence that might shed light on, the impact of the Veteran's service-connected disabilities on his ability to work between February 2, 2004 and September 21, 2005.

The July 2006 VA examination report indicates that the Veteran was "very limited by his asthma" and needed to use inhalers throughout the day.  He was found unable to be "very physically active due to activity creating increased [shortness of breath] and chest tightness."  The examiner opined that any employment requiring lifting, walking fast, walking distances, or other significant exertion could not be tolerated.  Sedentary work was felt to be precluded because of a prior hip replacement.  The Veteran also reported difficulty with hearing on the phone, spelling, reading, and writing, and it was felt he would have significant difficulty with sedentary employment due to such problems.

On April 2008 VA examination, the Veteran said he could walk one block without stopping to use his inhaler.  He could also walk up the five steps of his front porch without stopping due to shortness of breath.  However, he doubted whether he could walk a full flight of stairs without stopping, and indicated he had not done so in years.  The Veteran also said he had to schedule his life around his breathing problems and perform tasks in short bursts.  He said he could not go anywhere without at least one inhaler because he would develop panic symptoms and, possibly, panic attacks.  On examination, he had to stop twice for coughing while walking 250 yards and once to use his inhaler.  The examiner opined that the Veteran's asthma would prevent him from performing any employment that required any walking over about one block at any pace, or from walking at a rapid pace for even shorter distances.  He would also be precluded from performing jobs involving climbing, lifting more than 20 pounds, or exposure to dust allergens, smoke, stress, and possibly smells from cleaning solvents and perfumes.  Therefore, she felt he could not perform any physical or sedentary employment where he might be exposed to allergens, dust, smoke, or other agents.  It was also felt likely that he would have difficulty with talking rapidly or for long periods, as is required with many phone-based jobs, due to his shortness of breath.

On May 2008 VA psychiatric examination, the examiner opined that the Veteran's dysthymic disorder caused depression and repression that was worsened by his asthma and rendered him unable to take on tasks where he might fail, and thus rendered him unemployable, particularly when combined with underlying personality problems.

Together, these examination reports suggest that the Veteran's asthma and dysthymic disorder were, independently of one another, productive of symptoms and impairment so severe as to render them unable to perform physical or sedentary employment.  While the April 2008 VA examiner did not explicitly rule out all physical work, the findings reasonably show that he would be unable to engage in any kind of significant physical work.  Similarly, the fact that the Veteran could not work in environments where he would be exposed to allergens, dust, smoke, stress, or even smells from cleaning solvents and perfumes is exclusive of nearly all reasonable sedentary work environments.  Even the most fastidiously maintained workplaces would find it difficult to exclude exposure to such a wide array of relatively common irritants.  Moreover, it is nearly inconceivable that any workplaces could reasonably (or legally) regulate employees' use of perfume.  Essentially, the examiner's findings suggest the Veteran would need a work environment or circumstance more or less tailored specifically for his needs.

Notably, while the July 2006 examination report suggests that difficulties in a sedentary position are related to nonservice-connected problems (e.g., a total hip replacement and difficulty hearing on the phone), such finding does not indicate that the Veteran's asthma does not contribute to his unemployability.  Even if it did, however, the Board notes that the evidence would essentially be in relative equipoise as to whether asthma prevented the Veteran from engaging in both physical and sedentary work.  In addition, while the July 2006 examiner is correct in noting that difficulty with reading, spelling, and writing are not manifestations of asthma, such factors are related to the Veteran's education and training and, in tandem with the fact that he has only a high school education and prior experience in physical work, further suggest that he would be unable to pursue sedentary employment.  This is compounded upon by the fact that his dysthymic disorder has also been found to preclude any work in which he might fail, which surely encompasses nearly every job imaginable.

In light of the above, the Board finds the evidence reasonably shows that, considering his education and experience, the severity of the Veteran's asthma, alone, rendered him unemployable from February 2, 2004 onwards, and that his dysthymic disorder compounded upon such impairment from February 2, 2005.  Accordingly, the evidence is at least in relative equipoise as to whether an effective date of February 2, 2004 is warranted for the award of TDIU.  Therefore, all remaining reasonable doubt is resolved in the Veteran's favor, and the appeal seeking an earlier effective date for TDIU must be granted.

ORDER

The appeal seeking restoration of a 60 percent rating for service-connected asthma is denied.

An earlier effective date of February 2, 2004 for the award of TDIU is granted.

REMAND

The Veteran's most recent VA treatment records associated with his file are dated in September 2015 (just before his most recent VA examination in October 2015).  As over a year has passed since that examination, a contemporaneous examination is needed to determine the current severity of the Veteran's asthma.  In addition, a review of the medical evidence also shows that the Veteran receives continuing, regular care from VA providers for his asthma.  Any updated records of such treatment are constructively of record, likely to contain information pertaining to the current severity of his asthma, and must be secured.

Accordingly, the case is REMANDED for the following action:

1. Obtain updated records of all VA and adequately identified private treatment the Veteran has received for his asthma.

2. Then, arrange for a respiratory diseases examination of the Veteran to determine the current severity of his service-connected asthma.  The entire record must be examined in conjunction with the examination and all tests or studies deemed necessary must be completed.  The examination report must include the results of pulmonary function tests.

In addition, the examiner should note whether the Veteran has had asthma attacks (and if so, their frequency); whether he has required physician visits for care of exacerbating episodes of asthma (and if so, their frequency); and whether he has required the use of systemic (oral or parenteral) corticosteroids, high-dose corticosteroids, or immunosuppressive medications (and if so, their frequency).

A detailed rationale is requested for all opinions provided.  Specifically, if any asthma medications are felt not to be systemic (oral or parenteral) corticosteroids, high-dose corticosteroids, or immuno-suppressive medications, the examiner must explain those findings.  (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.  Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested).

3. The AOJ should then review the record and readjudicate the claim.  If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

______________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: MARJORIE A AUER

disposition: granted

text:
Citation Nr: 1716000
Decision Date: 05/11/17    Archive Date: 05/22/17

DOCKET NO.  12-17 667	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado

THE ISSUE

Entitlement to service connection for a recurrent respiratory disorder, to include sinusitis and allergic rhinitis claimed as the result of herbicide exposure.

(The Veteran's claim of entitlement to service connection for non-Hodgkin's lymphoma, to include as due to exposure to herbicides, is the subject of a separate Board of Veterans' Appeals decision.)

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

The Veteran and Spouse

ATTORNEY FOR THE BOARD

I. Warren, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1966 to August 1969, with service in Korea between January 14, 1967 and March 13, 1968.

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico which, in pertinent part, determined that new and material evidence had not been received to reopen the Veteran's claims of entitlement to service connection for both sinusitis and allergic rhinitis.  The Veteran resides within the jurisdiction of the Denver, Colorado VA RO.

In March 2010, the Veteran was afforded a personal hearing before a VA Decision Review Officer (DRO).  A hearing transcript was prepared and incorporated into the record.  In February 2013, the Veteran was afforded a videoconference hearing before Veterans Law Judge Seesel.  A hearing transcript was prepared and incorporated into the record.

In April 2014, the Board determined that new and material evidence had been received to reopen the Veteran's claim of entitlement to service connection for a chronic respiratory disorder, to include sinusitis and allergic rhinitis claimed as a result of herbicide exposure, and remanded the issue to the RO for additional action.

In November 2014, upon further development, the Denver, Colorado RO issued a supplemental statement of the case (SSOC).

In December 2015, the Board remanded several issues, including a remand to the RO to obtain an addendum medical opinion to address the issue of entitlement to service connection for a chronic respiratory disorder, to include sinusitis and allergic rhinitis claimed as a result of herbicide exposure.

In September 2016, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge regarding the issues of service connection for a recurrent respiratory disorder, to include sinusitis and allergic rhinitis and for non-Hodgkin's lymphoma, both claimed as due to exposure to herbicides.  A transcript of that hearing is of record.

In February 2017, an Arneson letter was submitted to the Veteran to obtain clarification as to whether he wanted the opportunity for an additional hearing before the Board proceeded to issue a decision concerning his appeal for entitlement to service connection for a chronic respiratory disorder to include sinusitis and allergic rhinitis, to include as due to exposure to herbicides.  The Veteran elected not to appear at an additional hearing before a third Veterans Law Judge for this issue.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2016).  38 U.S.C.A. � 7107(a)(2) (West 2015).

FINDING OF FACT

1.  The competent and probative evidence of record demonstrates that the Veteran's allergic rhinitis and sinusitis are related to his active service.

CONCLUSION OF LAW

1.  The criteria for service connection for sinusitis and allergic rhinitis have been met.  38 U.S.C.A. ��  1110, 1131, 5107 (West 2015); 38 C.F.R. �� 3.102, 3.303 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In light of the fully favorable determinations in this case, no further discussion of compliance with VA's duty to notify and assist is necessary.

I.  Pertinent Law and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S. C .A. �� 1110, 1131; 38  C.F.R. � 3.303 (a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303 (d).

Direct service connection may not be granted without evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. � 5107; 38 C.F.R. � 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

II.  Analysis

Throughout the claim period, the Veteran has been variously diagnosed.  He was treated for upper respiratory complaints and symptoms attributable to bacterial pharyngitis, tonsillitis, and upper respiratory infection, in service.  VA outpatient records dated between 1980 and 1981 note complaints that included severe nasal obstruction diagnosed as allergic rhinitis.  Subsequent private and VA treatment records reflect continuing treatment over the years for chronic respiratory symptomatology primarily diagnosed as allergic rhinitis and sinus disease.  The Veteran was recently diagnosed with chronic sinusitis, chronic rhinitis and allergic rhinitis (See two separate November 9, 2012 private opinions by Dr. I).  The first element to grant service connection has been met as the Veteran has a current disability.

As previously indicated, the Veteran was treated on a number of occasions during service for upper respiratory symptomatology.  Service treatment records from 1967-1969 indicate symptoms such as nasal congestion, dizziness, dry cough, postnasal drip, sore throat, chills, fever, mumps, frequent episodes of acute sinusitis and tonsillitis.  A May 16, 1969 ENT examination noted his right nasal air passage was completely obstructed, along with enlarged tonsils.  The examiner documented this had been occurring for the previous past two years.  Based on the evidence of record, the second element of an in-service incurrence has been met.

The Veteran contends that his recurrent respiratory disorder is the result of herbicide exposure (See Veteran's June 1999 statement to the VA).  Although a March 2017 Board decision granted this Veteran service connection for non-Hodgkin's lymphoma, to include as due to exposure to herbicides, because the Board found that the evidence in this case only was in equipoise as to the use of herbicides along the Korean demilitarized zone from 1967-1969, 38 C.F.R. � 3.309(e) does not list recurrent respiratory disorder, allergic rhinitis or sinusitis as diseases associated with exposure to herbicides.  Therefore, the herbicide presumption does not apply to the claim of service connection for a recurrent respiratory disorder, to include allergic rhinitis and sinusitis.  Service connection can still, however, be shown on another basis even though the Veteran fails to establish service connection on a presumptive basis.  38 U.S.C.A. � 1113(b); Combee v. Brown, 34 F. 3d 1039, 1042 (Fed. Cir. 1994).

A June 2014 VA opinion provider opined in part that the Veteran's allergic rhinitis existed prior to service but was not aggravated by service.  The Board decided in a December 2015 remand that the Veteran's August 1966 enlistment examination found the nose and sinuses to be normal and only listed defective vision.  Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004) (explaining that when a veteran is presumed sound, the burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service).  The Board notes diseases of allergic etiology, including bronchial asthmas and urticarial, may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities.  As the June 2014 examiner considered the incorrect standard and did not review all the records, an addendum was deemed necessary.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Veteran was afforded an addendum opinion in February 2016, and the examiner opined that his claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness.  The examiner noted the Veteran is diagnosed with chronic rhinosinusitis, but his history infers that the nasal and sinus congestion was likely present before he entered military service.  The examiner further noted that the Veteran's allergic rhinitis persisted over time with variable levels of severity, and that it is at least as likely as not that his allergic rhinitis worsened when he was stationed in Korea.  The examiner additionally stated that it is also at least as likely as not that the recurrent nasal congestion lead to sinus congestion, which over time, lead to chronic sinusitis.  The Board already decided in a December 2015 remand that the Veteran is presumed sound, as his sinuses were not listed as abnormal during his enlistment examination, and the presumption of soundness has not been rebutted with clear and unmistakable evidence.  Although this examination is deemed inadequate, the examiner indicates that it is possible that the Veteran's disability existed before service, but that service in Korea definitely aggravated it.

In a November 2012 private opinion by Dr. I, he stated that active duty and civilian records show that the Veteran's chronic sinusitis developed during service in Korea between February 1967 and May 1969 and continued with "recurrent bouts of acute sinusitis" up to the present.  The third element of a nexus between the in-service occurrence and the present disability has been satisfied, as Dr. I directly linked the Veteran's in-service symptoms from 1967-1969 to his current disability of chronic sinusitis.

The Board finds that the evidence for and against the claim of entitlement to service connection for a recurrent respiratory disorder to include allergic rhinitis and sinusitis, claimed as the result of herbicide exposure is at least in equipoise.  Therefore, reasonable doubt must be resolved in the favor of the Veteran and entitlement to service connection for a recurrent respiratory disorder to include allergic rhinitis and sinusitis is warranted on a direct basis.  38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102.

ORDER

Service connection for a recurrent respiratory disorder, to include sinusitis and allergic rhinitis is granted.

____________________________________
HOLLY L. SEESEL
Veterans Law Judge, Board of Veterans' Appeals

____________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: V CHIAPPETTA

disposition: denied

condition: back

disposition: remanded

text:
Citation Nr: 1717000
Decision Date: 05/18/17    Archive Date: 06/05/17

DOCKET NO.  16-35 732	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia

THE ISSUES

1.  Entitlement to an initial compensable rating for bilateral hearing loss.

2.  Entitlement to service connection for a low back disability.

3.  Entitlement to service connection for a bilateral leg disability.

4.  Entitlement to service connection for psoriasis, to include as secondary to posttraumatic stress disorder (PTSD).

REPRESENTATION

Veteran represented by:	John S. Berry, Attorney

ATTORNEY FOR THE BOARD

David A. Brenningmeyer, Counsel

INTRODUCTION

The Veteran served on active duty in the U.S. Navy from October 1963 to April 1991, to include service in Vietnam.  He also had service in the U.S. Naval Reserve.  His decorations include the Combat Action Ribbon, the Bronze Star Medal with Combat "V," and the Vietnam Service Medal with four stars.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  The RO granted service connection and a zero percent (noncompensable) rating for bilateral hearing loss and denied service connection for lumbar strain, disability of the legs, and psoriasis.  After the decision was entered, the case was transferred to the jurisdiction of the RO in Atlanta, Georgia.

In December 2014, the Veteran raised the issue of his entitlement to service connection for psoriasis as secondary to PTSD.  As such, and for purposes of clarity, that issue has been recharacterized as set forth above, on the title page.

In November 2015, while the Veteran's appeal was pending, the RO in Atlanta granted service connection for "dermatitis (claimed as psoriasis)."  Thereafter, however, the Veteran, through his attorney, continued to pursue service connection for psoriasis per se.  See VA Form 21-0958 (Notice of Disagreement) (NOD) received in February 2016.  A Statement of the Case (SOC) addressing service connection for psoriasis was issued in July 2016, and a timely VA Form 9 (Appeal to Board of Veterans' Appeals) was filed later that month.  As such, the issue is properly before the Board.  See 38 U.S.C.A. � 7105.

In December 2015 and February 2016, the Veteran and his attorney filed NODs with respect to January 2015 and November 2015 rating decisions that, in pertinent part, granted service connection and a 30 percent rating for PTSD, effective October 3, 2014; granted service connection and a 30 percent rating for dermatitis, effective July 14, 2015; granted service connection and a 10 percent rating for tinnitus, effective May 6, 2015; and denied service connection for sleep apnea, acid reflux (to include a gastrointestinal condition), and constipation.  Thus far, the Veteran has not been furnished any SOC(s) addressing those matters.  See, e.g., 38 C.F.R. � 19.29.  However, it appears clear that the agency of original jurisdiction (AOJ) is aware of the NODs and is continuing to work on the appeals.  Therefore, the Board will not remand them at this time.  Cf. Manlincon v. West, 12 Vet. App. 238 (1999).

In September 2016, the Veteran's attorney submitted additional evidence in support of the Veteran's appeal without a waiver of initial consideration by the AOJ.  In this regard, the Board observes that Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, P.L. 112-154, which amends 38 U.S.C. � 7105(e), provides that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, the evidence is subject to initial review by the Board unless the Veteran or his or her representative requests in writing, at the time of submission, that the AOJ initially review such evidence.  Here, the Veteran's substantive appeal was received in July 2016, and he and his attorney have not explicitly requested initial AOJ consideration of the additional evidence submitted.  As such, the Board may properly consider such evidence without a waiver.

In October 2012, the Veteran filed a claim for service connection for psoriatic arthritis.  Thus far, that claim has not been adjudicated by the AOJ.  As such, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. � 19.9(b).

A motion to advance this appeal on the Board's docket has been raised by the Board's Acting Vice Chairman.  The undersigned is granting the motion and advancing the appeal on the docket based upon advanced age.  38 C.F.R. � 20.900(c) ("advanced age" is defined as 75 or more years of age.)
The Board's present decision is limited to an adjudication of the Veteran's claims for a compensable rating for bilateral hearing loss and for service connection for a low back disability and bilateral leg disability.  For the reasons set forth below, his claim for service connection for psoriasis is being REMANDED to the AOJ.  VA will notify the Veteran if further action is required on his part.

FINDINGS OF FACT

1.  The Veteran's auditory acuity is no worse than level II, bilaterally.

2.  The Veteran has degenerative disc disease of the lumbar spine with associated radicular symptoms in his bilateral lower extremities.

3.  The evidence is at least in relative equipoise as to whether the Veteran's degenerative disc disease can be attributed to service.

CONCLUSIONS OF LAW

1.  The criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. � 1155 (West 2014); 38 C.F.R. � 3.321, 4.1, 4.85, 4.86, Diagnostic Code 6100 (2016).

2.  Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for degenerative disc disease of the lumbar spine, with associated radicular symptoms in the bilateral lower extremities, have been met.  38 U.S.C.A. �� 1110, 1131, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.303 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As an initial matter, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions with respect to the matters herein decided.  See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. �� 3.102, 3.103, 3.156(a), 3.159, 3.326; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  No further notice or evidentiary development is required.

I.  Bilateral Hearing Loss

Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.  Separate diagnostic codes identify the evaluations to be assigned to the various disabilities.

If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. � 4.7.

Hearing loss is evaluated under Diagnostic Code 6100.  The condition is normally rated on the basis of controlled speech discrimination tests (Maryland CNC), together with the results of puretone audiometry tests.  See 38 C.F.R. � 4.85.  Ordinarily, the results of these tests are charted on Table VI, as set out in the Rating Schedule, to determine the appropriate Roman numeral designation (I through XI) to be assigned for the hearing impairment in each ear.  These numeric designations are then charted on Table VII to determine the rating to be assigned.  Id.  See, e.g., Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (indicating that evaluations of hearing loss are determined by a mechanical application of the rating schedule).

However, not all patterns of hearing loss are rated in this manner.  For example, where the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the Roman numeral designation for that ear is taken from either Table VI or VIa, whichever results in the higher numeral.  38 C.F.R. � 4.86(a).  See also 38 C.F.R. �� 4.85(c) and 4.86(b) (indicating that alternative methodologies also apply when the examiner certifies that use of the speech discrimination test is not appropriate or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz).

In the present case, the record on appeal contains the results of three VA and private audiometric examinations, dated in September 2011 (VA), September 2012 (private), and August 2015 (VA).  Of these, only the VA examination reports contain the necessary puretone threshold and speech discrimination data necessary for a proper evaluation of the Veteran's disability.  The results of private testing in September 2012 are inadequate for rating purposes inasmuch no speech discrimination testing was performed.

On the earliest VA examination, in September 2011, testing revealed the following results:

HERTZ

SPEECH (%)
1000
2000
3000
4000

RIGHT
35
40
55
65
88
LEFT
35
45
60
55
88

The average of these thresholds is 48.75 decibels for both ears.  Under 38 C.F.R. � 4.85 and Table VI, these results correspond to level II acuity, bilaterally; which, in turn, warrants a zero (0) percent rating under Table VII.

On the second VA examination, in August 2015, testing revealed the following:

HERTZ

SPEECH (%)
1000
2000
3000
4000

RIGHT
40
55
65
70
96
LEFT
45
55
55
60
96

The average of these thresholds is 57.5 decibels for the right ear and 53.75 decibels for the left ear.  Under 38 C.F.R. � 4.85 and Table VI, these results correspond to level II acuity for the right ear and level I acuity for the left ear; which, in turn, likewise warrants a zero (0) percent rating under Table VII.
Following review of the evidence, and the applicable law and regulations, it is the Board's conclusion that the preponderance of the evidence is against the Veteran's claim for an initial compensable rating for bilateral hearing loss.  As set forth above, the September 2011 and August 2015 VA examination reports clearly demonstrate entitlement to nothing more than a zero (0) percent rating.

In arriving at this conclusion, the Board has specifically considered whether the Veteran is entitled to a "staged rating."  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  It is the Board's conclusion, however, that none of the evidence demonstrates that his hearing disability has ever been more than zero (0) percent disabling since the time that he filed the underlying claim for service connection in May 2011.  None of the test results supports the assignment of a rating in excess of the currently assigned evaluation.  Nor do those results demonstrate the presence of an "exceptional" pattern of hearing impairment, as defined in 38 C.F.R. � 4.86.  The preponderance of the evidence is against the assignment of a compensable rating under the Schedule, and a "staged rating" is not warranted.

To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer a case to the Under Secretary for Benefits or the Director of the Compensation Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability.  38 C.F.R. � 3.321(b)(1).  The criteria for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards.  See Thun v. Peake, 22 Vet. App. 111 (2008).

The Board has considered whether the Veteran's claim should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted.  The Veteran's reported symptoms, consisting of difficulty with auditory acuity and decreased speech discrimination, are fully contemplated by the schedular rating criteria, which provide higher evaluations for greater levels of impairment.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).  There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards.

The Board also notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the symptoms associated with his service-connected disabilities.  However, in this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), the Board finds no additional impairment that has not been attributed to a specific, rated disability.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions.

Finally, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel of that claim for a higher rating is the matter of whether a total disability rating based on individual unemployability due to service-connected disability (TDIU) is warranted.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Bradley v. Peake, 22 Vet. App. 280 (2008).

In this case, the Veteran has not alleged, and none of the evidence suggests, that he is unable to secure or follow a substantially gainful occupation as a result of bilateral hearing loss alone.  As such, there is no basis for further consideration of a higher rating under Rice and Bradley.

II.  Low Back and Legs

Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303(a).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

In the present case, there is no dispute that the Veteran has disabilities of his low back and legs.  The medical evidence clearly reflects that he has degenerative disc disease of the lumbar spine with associated radicular symptoms in his bilateral lower extremities.

Nor is there any dispute that the Veteran had problems with his back in service.  His service records clearly reflect that he was treated for low back strain in February 1984 and October 1989.  The Veteran has also credibly described an injury he sustained to his low back during service around 1972 or 1974, when he was pulling heavy chains.

As to the nexus, or link, between the Veteran's currently shown disabilities and service, the record contains a September 2016 medical opinion from the Veteran's private treating physician, Dr. R.  After considering what the physician described as the four major factors involved in causing a spinal condition such as the Veteran's (identified as genetics, smoking, injury, and work type), and finding that two of those factors (genetics and smoking) did not apply to the Veteran, the physician concluded that the heavy work required of the Veteran during his time in the military, combined with evidence of in-service injury, led to his present disability.

The September 2016 opinion contains clear conclusions with supporting data, and a reasoned medical explanation connecting the two.  As such, it has significant probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Although the record contains other, unfavorable medical opinions, including from two VA examiners (the reports of which are dated in September 2011 and April 2016), neither of those opinions is any more probative than that obtained from the private physician in September 2016.
It light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for a low back disability (degenerative disc disease) and disability of the legs (associated radicular symptoms) have been met.  The evidence, at a minimum, gives rise to a reasonable doubt on the matter.  38 U.S.C.A. 5107(b); 38 C.F.R. � 3.102.

ORDER

An initial compensable rating for bilateral hearing loss is denied.

Service connection for degenerative disc disease of the lumbar spine is granted.

Service connection for a disability manifested by radicular symptoms in the bilateral lower extremities, is granted.

REMAND

One of the questions presented with respect to the Veteran's claim for service connection for psoriasis is whether he has had the condition at any time pertinent to the present appeal.  Although it appears that he may not have the condition presently, a private dermatologist, Dr. S., concluded in August 2011-following a biopsy in July 2011-that the Veteran's diagnosis at that time was psoriasis.  Another dermatologist (Dr. K.), from whom the Veteran sought a second opinion in April 2015, has made observations to the effect that although not currently diagnosed, he cannot rule out that psoriasis was present in 2011.  Under the circumstances, the Board is satisfied that the requirement of a current disability has been met.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication).

As noted previously, the Veteran has raised the issue of his entitlement to service connection for psoriasis as secondary to PTSD.  See Introduction, supra.  He has submitted articles to support his claim.  However, no medical opinion has been obtained on the matter.  This needs to be accomplished.  In light of the long and complex history of the Veteran's condition, the Board finds that the opinion must be obtained from a dermatologist.

For the reasons stated, this case is REMANDED for the following actions:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c).  Expedited handling is requested.)

1.  Arrange to have a dermatologist review the record for purposes of offering an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that psoriasis had its onset in, or is otherwise attributable to, the Veteran's period of active service.

The physician should accept, for analytical purposes, that the Veteran has had psoriasis for at least a portion of the time that his appeal has been pending, as concluded by his private dermatologist, Dr. S., in August 2011, following a biopsy in July 2011.

In providing an opinion with respect to nexus, the physician should discuss the medical significance, if any, of the many visits the Veteran had during service for treatment of skin-related issues, to include in April 1969 (rash on his ankle); April 1971 (rash on both ankles); November 1974 (rash on penis); November 1974 (rash in groin area); February, March, and April 1984 (erythematous rash of face and neck, then pruritus over the back/scalp); November 1984 (itching of scalp/top of skull with diffuse erythema that included the face, with what was described as a long history of recurrent scalp eruption); September 1987 (erythematous scaly lesions of the neck and forehead, with an assessment of eczema); October 1988 (rash to groin area); and March 1991 (rash on one side of the penis).

If it is the physician's opinion that it is unlikely that psoriasis present during the appeal period had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not that psoriasis was caused or aggravated by the Veteran's service-connected PTSD, to include medication therefor.

In so doing, the physician should discuss the medical significance, if any, of the articles the Veteran has submitted pertaining to the relationship between PTSD and psoriasis, to include those he submitted in July 2015.

A complete rationale for all opinions must be provided.

2.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the benefit sought remains denied, the Veteran and his attorney should be issued a supplemental SOC (SSOC).  An appropriate period of time should be allowed for response.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This matter must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

______________________________________________
V. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: MICHAEL J SKALTSOUNIS

condition: arthritis

text:
Citation Nr: 1718000
Decision Date: 05/23/17    Archive Date: 06/05/17

DOCKET NO.  05-23 934	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio

THE ISSUE

Entitlement to service connection for generalized arthritis.

REPRESENTATION

Veteran represented by:	The American Legion

WITNESSES AT HEARING ON APPEAL

The Veteran and his wife

ATTORNEY FOR THE BOARD

M. Donohue, Counsel

INTRODUCTION

The Veteran served on active duty from October 1966 to February 1968.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

In November 2003, the Veteran presented testimony at a hearing conducted at the Cleveland RO before a Decision Review Officer (DRO).  A transcript of this hearing is in the Veteran's claims folder.

The Board remanded the matter for further development in June 2008 and April 2011.  The case is once again before the Board.

FINDING OF FACT

The Veteran's arthritis of multiple joints did not manifest during service or within one year of separation.  Arthritis is unrelated to service.

CONCLUSION OF LAW

Arthritis of multiple joints was not incurred in or aggravated by service and may not be presumed to have been incurred therein.  38 U.S.C. �� 1101, 1110, 1112, 1113, 1137, 5107 (2014); 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309 (2016).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See 38 U.S.C. �� 5103, 5103A (2014); 38 C.F.R. � 3.159 (2016).

Regarding VA's duty to notify, an August 2002 pre-adjudication letter notified the Veteran of the information and evidence needed to substantiate his claim and of his and VA's respective duties for obtaining evidence.  He was provided with additional notice in a July 2008 letter.  Accordingly, VA satisfied its duty to notify.

With respect to the duty to assist, the Board finds that all necessary development has been accomplished and appellate review may proceed without prejudice to the Veteran.

The Veteran's claim was remanded for additional development in June 2008 and April 2011.  Specifically, in June 2008, the Veteran's claim was remanded in order to obtain his records from the Social Security Administration and to comply with the additional notification requirements as set forth in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Board remanded the Veteran's claim in April 2011, in part, to obtain his VA treatment records and schedule him for an examination.

The record reflects that the Veteran's VA treatment records have been obtained and associated with the claims file.  He was afforded a VA examination in November 2011.  Dingess compliant notice was sent in a July 2008 letter.  Finally, although the November 2016 Supplemental Statement of the Case indicates that the record only includes portions of a Social Security Administrative Judge's decision, the Board notes that the claims file contains a complete copy of this decision, along with the rest of the Veteran's records from the Social Security Administration.  These records were also reviewed in the January 2010 Supplemental Statement of the Case.  In short, a review of the record reveals that there has been substantial compliance with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).  The Veteran and his representative have not contended otherwise.

As the Board will discuss in its analysis, the Veteran was provided with a VA examination in November 2011.  The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  Supporting rationale was also provided for the opinion proffered.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Board therefore concludes that the examination is adequate for adjudication purposes.  See 38 C.F.R. � 4.2.  The Veteran and his representative have not contended otherwise.

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Moreover, neither the Veteran nor his representative has raised any arguments regarding VA's compliance with the development of his claim. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011); see also Robinson v. Peake, 21 Vet. App. 545, 553 (2008) (holding that the Board is not required "to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision"), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); cf. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("Having initially failed to raise the procedural issue, the Veteran should not be able to resurrect it months or even years later when, based on new circumstances, the Veteran decides that raising the issue is now advantageous.").

II.  Law and Regulations

In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. �1110; 38 C.F.R. � 3.303.  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  See 38 C.F.R. � 3.303(d).

In order to establish service connection for the claimed disorder, there must be (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 current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Certain chronic disabilities, to include arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. �� 1110, 1112, 1113, 1137; 38 C.F.R. �� 3.307, 3.309(a).

With 'chronic disease' shown as such in service (or within the presumptive period under � 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  38 C.F.R. � 3.303(b).  For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. � 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.

The term 'chronic disease,' whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C. � 1101 and 38 C.F.R. � 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

III.  Analysis

The Veteran is seeking service connection for arthritis of multiple joints.  A May 1998 private total body bone scan noted increased activity in the major joints of the body including the feet, knees, hands, wrists, shoulders, and lower lumbar spine, all of which were felt to be degenerative in nature.  A current disability has therefore been demonstrated.

In April 2011, the Board observed that the Veteran reported that while on active duty, he was involved in falls and accidents, to include falling off a truck and hurting his back.  The Board concluded that these statements were sufficient to establish an in-service injury.

Pursuant to the April 2011 remand, the Veteran was afforded a VA examination to determine whether his arthritis was related to his active duty service.  After a clinical examination and a review of the claims file, in November 2011, a VA examiner stated that "it is less likely than not that the Veteran's generalized arthritis is a result of his duties during his military service."  The examiner explained that the Veteran's service treatment records do not document any musculoskeletal injuries or complaints.   It was noted that his Military Occupational Specialty was a light truck driver and he was responsible for driving passengers to and from destinations.  Instead, the examiner opined that the Veteran's arthritis conditions are the result of "progressive wear and tear over a 30 year period" of employment that included driving semi-tractor trailers, climbing in and out of an elevated cab on a daily basis, and loading and unloading trailers.  The examiner also noted that the Veteran's weight had increased from 140 pounds during service "to his current morbid obese weight of 340 pounds."

The Veteran does not contend that he developed arthritis while on active duty or within one year of his separation from service.  In fact, during the November 2003 hearing, when asked if he was diagnosed with arthritis within five or ten years of his separation from service, the Veteran responded: "No, it was longer than that."  Hearing Transcript, page 11.

Besides the November 2011 VA examination report, the only other opinion addressing the etiology of the Veteran's arthritis is his own opinion.  Although the Veteran is considered competent to testify as to symptoms he has observed, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion.  See 38 C.F.R. � 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.).  The evidence does not reflect that the Veteran currently possesses a recognized degree of medical knowledge that would render his opinion on medical causation competent.  Moreover, the specific, reasoned opinion of the November 2011 VA examiner is of greater probative weight than the more general assertions of the Veteran.

In essence, arthritis was not manifest during service or within one year of separation and is not otherwise attributable to service.

In conclusion, for the reasons and bases expressed above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for arthritis, as the third Shedden element has not been met.  The benefit sought on appeal is accordingly denied.

ORDER

Service connection for arthritis of multiple joints is denied.

____________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: BRADLEY W HENNINGS

text:
Citation Nr: 1719000
Decision Date: 05/30/17    Archive Date: 06/06/17

DOCKET NO.  10-13 063	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine

THE ISSUE

Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), and to include as due to exposure to asbestos.

REPRESENTATION

Veteran represented by:	Shannon L. Brewer, Esq.

ATTORNEY FOR THE BOARD

S. M. Stedman, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1981 to July 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida.  The Veteran's record is now in the jurisdiction of the Togus, Maine RO.

The issue of SC for a respiratory disorder is characterized as stated on the title page to reflect that the scope of the claim includes any respiratory disability, however diagnosed, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009).

In February 2016, the Board remanded this matter for further development, to include obtaining VA treatment records and to afford the Veteran an adequate VA examination.  That development having been completed, this matter has returned to the Board for further appellate review.

FINDING OF FACT

A respiratory disorder, to include COPD, is not shown to be causally or etiologically related to any disease, injury, or incident in service, to include any asbestos exposure.

CONCLUSION OF LAW

The criteria for establishing service connection for a respiratory disorder, including COPD, are not met.  38 U.S.C.A. �� 1110, 1131, 5107 (West 2014); 38 C.F.R. � 3.303 (2016)

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duty to Notify and Assist

VA's duty to notify was satisfied by letters on September 2008 and September 2009.  See 38 U.S.C.A. �� 5102, 5103, 5103A (West 2014); 38 C.F.R. � 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Concerning the duty to assist, the Veteran's service treatment records, private treatment records, and post-service treatment records have been associated with the claims file.  The Veteran has not identified any outstanding records to obtain.  Additionally, VA examinations addressing the Veteran's claim for entitlement to service connection for a respiratory disorder were obtained.  Based on a review of the record, the Board finds that there is no indication that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Moreover, the AOJ has substantially complied with the previous remand directives such that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377  (2002).  Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issue on appeal.

II.  Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303(a).  Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

With regard to claims for service connection for asbestos-related diseases, there is no specific statutory or regulatory guidance.  McGinty v. Brown, 4 Vet. App. 428, 432 (1993).  Nevertheless, the VA Adjudication Procedure Manual provides guidelines for veterans who were exposed to asbestos while in service and developed a disease related to that asbestos exposure.  VA Adjudication Procedure Manual, M21-1, IV.ii.1.3.a (updated Oct. 27, 2015).  Claims based on exposure to asbestos 1) require a military occupational skill with exposure to asbestos or other exposure event associated with service sufficient to request an examination with medical opinion and 2) a diagnosed disability that has been associated with in-service asbestos exposure.  Id.  Occupational exposure is the most common cause of asbestosis, but the disorder can have other causes.  Id.

The M21 provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis).  Also noted is that the latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease.  A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others.

The determination of whether the requirements of service connection have been met is based on an analysis of the credibility and probative value of all the evidence of record.  See 38 U.S.C.A. � 7104(a) (West 2014); Baldwin v. West, 13 Vet. App. 1, 8 (1999).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C.A. � 5107 (West 2014); 38 C.F.R. �� 3.102, 4.3 (2016).  A claimant need demonstrate only an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  For a claim to be denied on the merits, a preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The Veteran seeks service connection for a respiratory disorder as due to asbestos exposure.  For the following reasons and bases, the Board finds that entitlement to service connection for a respiratory is not warranted.

The Veteran contends that he was exposed to asbestos during his military service.  Specifically, he asserts that he stood fire watches below deck when the USS Francis Hammond underwent a mini-overhaul in 1981 and a complete overhaul in 1984.  His DD 214 indicates that his military occupational specialty (MOS) was as a storekeeper.  He asserts that his duties as a storekeeper involved working in the lower level of the store room, handling gaskets which contained asbestos.  He also asserts that he was exposed during an overhaul of the USS Saipan from March to December 1988, when he was grinding bulkheads and decks without wearing a mask.

It is acknowledged that asbestos was used on a number of ships during the 1900s.  However, simply serving on a ship does not establish exposure, as asbestos exposure may not be presumed.  Rather, it must be shown that asbestos exposure actually occurred.  See Dyment v. West, 13 Vet. App. 141 (1999).

In two medical surveillance questionnaires during service, the Veteran indicated "no" to whether he had been exposed to asbestos dust during rip-out operations, or worked regularly with asbestos or asbestos products.  The Veteran's service and VA treatment record contain numerous reports of the Veteran's tobacco use, including smoking at least one pack of cigarettes per day since 1981.  See December 1985 Service Treatment Note (indicating the Veteran smokes two to three packs a day); February 2016 Pulmonary Note (stating the Veteran smokes two packs of cigarettes per day with a thirty five year history).  Additionally, his MOS as a storekeeper has been legislatively determined as having a minimal probability of asbestos exposure.  See June 2008 Rating Decision.

In June 2015, the Veteran underwent a VA examination.  The examiner diagnosed the Veteran with COPD.  The examiner also found that the Veteran did not have a diagnosis of asbestosis of the lungs.  The examiner opined that the Veteran's chronic lung changes were caused by his smoking history.

Following the Board's remand in February 2016, the Veteran underwent an April 2016 VA respiratory disorders examination by a board certified pulmonologist.  The examiner diagnosed the Veteran with COPD and emphysema.  The examiner stated that recent radiologic studies did not show any evidence of asbestos-related disease.  The examiner opined that the Veteran's respiratory disorders were less likely than not incurred in or caused by an in-service injury, event, or illness.  The examiner rationalized that there was no objective radiologic evidence of any substantial asbestos exposure.  The examiner also stated that the Veteran's respiratory disorders were caused by his history of smoking.

An addendum opinion by the April 2016 examiner further opined that the Veteran's respiratory disorders were less likely than not caused by in-service exposure to chemicals or the result of grinding bulkheads and decks without wearing a mask while the Veteran's ships were in overhaul.  The examiner rationalized that there is no peer reviewed epidemiologic studies that substantiate that the grinding of bulkheads and decks cause COPD or emphysema.  The examiner went on to opine that the most likely cause of the Veteran's respiratory disorders was his extensive smoking history, which is well documented in medical literature as the most common and likely cause of COPD and emphysema.

While the Veteran believes that his current respiratory disorder is related to service, he has not shown that he has specialized training sufficient to render such an opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, the etiology of his lung disabilities are not capable of lay observation, and require medical expertise to determine.  Accordingly, his opinion as to the diagnosis and etiology of his lung disabilities do not constitute competent medical evidence.

The Board finds the opinions of the VA medical examiners to be significantly more probative that the Veteran's lay assertions.  In this regard, the examiners' conclusions are shown to have been based upon all pertinent evidence, including service treatment records, private treatment records, and VA treatment records; physical examinations; and acknowledgement of the Veteran's lay statements.  Moreover, the VA opinions are accompanied by a sufficient explanation and reference to pertinent evidence of record.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion).

In sum, the probative evidence shows that the Veteran's respiratory disorders are caused by smoking.  Service connection may not be established as a matter of law for disease or injury attributable to the use of tobacco products during service, except Buerger's disease.  38 U.S.C.A. � 1103; 38 C.F.R. � 3.300.  Under 38 C.F.R. � 3.300(a), "tobacco products" include cigarettes.  Thus, service connection for a respiratory disorder, to include COPD, must be denied in accordance with � 3.300, as it has been attributed to the Veteran's use of tobacco products.  The Board has no discretion regarding the statutory prohibition against service connection attributable to the use of tobacco products during service.

Although grateful for the Veteran's honorable service, the preponderance of the evidence weighs against the Veteran's claim.  As such, the benefit-of-the-doubt rule does not apply and the claim must be denied.  See 38 U.S.C.A. � 5107(b) (West 2014); 38 C.F.R. � 3.102 (2016).

ORDER

Service connection for a respiratory disorder, claimed as due to exposure to asbestos, is denied.

____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs