Citation Nr: 1742003 Decision Date: 09/25/17 Archive Date: 10/04/17 DOCKET NO. 14-39 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a low back disability diagnosed as lumbar osteoarthritis and degenerative disc disease (DDD). 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD)(claimed as residuals of bronchopneumonia, left lower lobe) REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to June 1968. This case comes to the Board of Veterans' Appeals (Board) on appeal of an April 2013 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the claims on appeal. The Veteran and his wife testified at a hearing before the undersigned in February 2016. FINDING OF FACT 1. The Veteran has a current low back disability, diagnosed as lumbar osteoarthritis and degenerative disc disease (DDD) 2. Current COPD was not caused or aggravated by a disease or injury in service. CONCLUSION OF LAW 1. A low back disability, diagnosed as lumbar osteoarthritis and degenerative disc disease (DDD) was incurred in active service. 38 U.S.C.A. § 1110, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). 2. COPD was not incurred in active service. 38 U.S.C.A. § 1110, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Low Back Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For listed chronic diseases, such as arthritis, the nexus element can be established by evidence of a continuity of symptomatology. 38 C.F.R. § 3.303(b); cf. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the instant case, the Veteran has a current low back disability diagnosed as lumbar osteoarthritis and degenerative disc disease (DDD). The service treatment records document The service treatment records show several instances of treatment for low back pain. The Veteran has reported and offered testimony to the effect that he injured his back unloading heavy objects while serving in Vietnam. The injury is consistent with the circumstances of his service. Hence the second element of service connection is established. The Veteran also testified that he had experienced periodic back pain since the in-service injuries. There are conflicting medical opinions as to whether there is a nexus between the current disability and service. In April 2013, a VA examiner opined that it was less likely as not that the Veteran's back condition was incurred in or caused by treatment in service. The rationale was that the Veteran had no trauma per se in service and was seen briefly and without medical treatment other than recommendation of a bed board in December 1966; three entries, and no further evaluation or treatment for the remainder of his service. In August 2017, a VA examiner noted the Veteran's report of lifting injuries in service and ongoing symptoms and opined that the current back disabilities were the result of the injuries in Vietnam. The Board sees no reason to prefer one opinion over the other. Resolving reasonable doubt in the Veteran's favor, the nexus element is established. As the elements of service connection are established, service connection for the low back disability is granted. COPD The Veteran has current diagnoses of COPD. Hence, a current disability has established. Service treatment records show that during service he was hospitalized for treatment of bronchopneumonia and reported chest pain related to colds. This establishes the second element of service connection. The Veteran was afforded an examination in April 2013, to determine whether there was a relationship between COPD and his active service. The examiner opined that it was less likely as not that the Veteran had asthma or any other respiratory condition secondary to a brief uncomplicated course of bronchopneumonia in 1968. The rationale was that the Veteran's "history especially (with absence of early documentation) in more recent years and PFT values-no reversibility c/w asthma" weighed against a link to service. The examiner concluded that it was more likely that the COPD was related to the Veteran's history of smoking. The Veteran's representative has contended that the examination is inadequate because the examiner did not give sufficient weight to the in-service treatment and symptoms. The examiner did; however, consider an accurate history and it is within the medical professional's purview to decide how much weight to place on the Veteran's medical condition during service. Because the examiner considered an accurate history, gave a definitive opinion and provided a supporting rationale; it is adequate. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The respiratory disability is not a listed chronic disease that could be established by a continuity of symptomatology. Walker. In any event, the Veteran has not consistently reported a continuity of symptomatology. In his substantive appeal, he wrote that he had experienced breathing problems since his hospitalization in Vietnam. At his hearing, however, he testified under oath that after being hospitalized for pneumonia he returned home from service and was not experiencing difficulty breathing. At the hearing the Veteran submitted a report of private hospitalization in 1972, but that report did not mention any respiratory history or current problems. As a lay person, the Veteran lacks the medical expertise to say that his current COPD is related to the remote history of pneumonia or chest colds. 38 C.F.R. § 3.159(a) (2016). There is no competent medical opinion linking the current disability to service. As such, the evidence weighs against finding a link between the current COPD and service. Absent a nexus to service the claim must be denied. ORDER Service connection for a low back disability, diagnosed as lumbar osteoarthritis and DDD, is granted. Service connection for COPD (claimed as residuals of bronchopneumonia, left lower lobe) is denied. _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs