Citation Nr: 1803413 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 10-40 725 ) ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected disability. ATTORNEY FOR THE BOARD C. Bates, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1985 to February 2005. These matters come before the Board of Veterans' Appeals (Board) from the RO. In January 2014, the Board remanded the claim for additional development. The issue of entitlement to service connection for OSA is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Although the Veteran appeared to receive a diagnosis of COPD, the diagnosis did not contain any rationale, which negatively impacted its probative weight. CONCLUSION OF LAW Absent both a competent and credible diagnosis of a current disability, the criteria to establish service connection for COPD have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for COPD. Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Establishing service connection generally requires (1) the existence of a present disability; (2) an 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). A threshold requirement for the granting of service connection is evidence of a current disability. In the absence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Shedden, 381 F.3d at 1167. Notably, the Veteran and any other lay witnesses of record are not licensed medical professionals and have not been shown to otherwise possess any requisite knowledge, skill, experience, training, or education to competently diagnose a complex medical condition, such as COPD; thus, they are not competent to provide expert medical opinion regarding such diagnoses. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Board acknowledges that the Veteran received what appeared to be a diagnosis of COPD, the treatment note was not accompanied by a rationale that the Board could appropriately weigh, which significantly impacted its credibility and probative value. See Private Treatment Record, 1 (Apr. 17, 2009). Notably, the Veteran's most recent examination provided a detailed analysis that clearly established that he has not satisfied the diagnostic criteria for COPD. See VA Examination, 3 (Feb. 21, 2014). Thus, the evidence of record overwhelmingly indicates that the Veteran has not been competently and credibly diagnosed with COPD, and finds that the February 2014 VA examination is the most probative evidence regarding whether a current lung disability exists. In the absence of a current disability, the threshold criteria for service connection for COPD are not met; consequently, the claim must be denied. See 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017); Brammer, 3 Vet. App. at 225; Shedden, 381 F.3d at 1167. ORDER Service connection for COPD is denied. REMAND Regarding the remaining service connection claim for OSA, the Board observes that its prior remand essentially directed the AOJ to obtain medical opinions for both direct and secondary service connection. See Board Remand, 16 (Jan. 28, 2014). The Board is aware that the remand directives did not specifically include a request for an opinion on direct service connection, but it was referenced in the case discussion prior to the remand directives. Unfortunately, a direct service connection opinion was not obtained. See VA Examination, 1-6 (Feb. 21, 2014). Although the examiner provided a secondary service connection opinion, the opinion did not contain an adequate rationale that the Board could consider and appropriately weigh against the other evidence of record; thus, this opinion is inadequate to fairly adjudicate the Veteran's claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to the claim remaining on appeal. 2. Forward the Veteran's claims file to an appropriate examiner to provide a supplemental opinion as to the nature and etiology of the claimed OSA. It is left to the examiner's discretion whether to reexamine the Veteran. The examiner is specifically requested to address whether it is at least as likely as not (50 percent probability or greater) that the Veteran's OSA was caused by, or otherwise related to, his active duty service. In this regard the examiner is advised that the Veteran has submitted lay statements indicating that he snored during his active duty service. The examiner is also requested to address whether it is at least as likely as not that the Veteran's OSA was caused or aggravated by any of his service-connected disabilities, to include hypertension, sinus bradycardia, and chronic bronchitis. 3. Then re-adjudicate the issue remaining on appeal. If the benefit sought is not granted in full, issue the Veteran a supplemental statement of the case and return the appeal to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters 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. §§ 5109B, 7112 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs