Citation Nr: 1804172 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-09 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for allergic rhinitis (claimed as sinusitis). 2. Entitlement to service connection for a respiratory disability, to include chronic bronchitis and chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from December 1976 to January 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In June 2012, the Veteran testified before the undersigned at a videoconference hearing. A transcript of the hearing is of record. This case was previously before the Board in November 2013 and August 2016 when it was remanded for additional development. The case has now returned to the Board for further appellate action. The Veteran's original service connection claim characterized the benefit sought as service connection for sinusitis. Based on the record before the Board, including the Veteran's statements and testimony, it is clear that she is seeking service connection for two separate conditions: a chronic allergic disability and a respiratory disability, to include COPD and chronic bronchitis. The Board has therefore recharacterized the issues on appeal to encompass all of the Veteran's reported symptoms. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). FINDINGS OF FACT 1. The Veteran's allergic rhinitis had its onset during active duty service. 2. A chronic respiratory disability, currently diagnosed as chronic bronchitis and COPD, was first manifest years after active duty service and is not etiologically related to a disease or injury during active duty service. CONCLUSIONS OF LAW 1. Service connection for allergic rhinitis is warranted. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). 2. Service connection for a respiratory disability, to include chronic bronchitis and COPD, is not warranted. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Allergic Rhinitis The evidence establishes the Veteran's allergic rhinitis had its onset during active duty service. Service records clearly show that the Veteran was treated on numerous occasions from June 1977 to December 1977 for symptoms of nasal congestion, headache, an acute cough, and a sore throat. Diagnoses of acute and chronic sinusitis were rendered, as well as upper respiratory infections. Service records do not indicate whether a sinus X-ray was performed to confirm the diagnosis of sinusitis. After service, the Veteran was diagnosed with a history of recurrent allergic rhinitis when she began VA treatment in December 2003. She has received consistent treatment for chronic allergic rhinitis since that time and the disability was also identified upon VA examinations in February 2010 and January 2014. The Board finds that the Veteran's symptoms, while identified as sinusitis during service, are the same as those used to support the diagnosis of chronic allergic rhinitis after service. The February 2002 and January 2014 VA examiners found that the Veteran did not have sinusitis based on normal sinus X-rays and diagnosed allergic rhinitis. The VA examiners provided medical opinions against the claim, but these opinions are based solely on the lack of a specific finding of allergic rhinitis during active duty service. The Board finds that the Veteran has credibly and competently testified that she experienced symptoms of chronic allergic rhinitis since service, and that her service treatment records support her claim. All three elements of service connection are present, and the Board therefore finds that service connection for chronic allergic rhinitis is warranted as directly due to active duty service. Respiratory Disability The Veteran claims that service connection is warranted for a chronic respiratory disability, to include chronic bronchitis and COPD, because she contends that such condition was incurred during active duty service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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" - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting 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). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A current disability is established. VA and private treatment records dated throughout the claims period document findings of chronic bronchitis and COPD verified by pulmonary function tests. The Veteran has also described consistent symptoms of respiratory difficulty including shortness of breath with speaking and activity, a chronic cough, and chest discomfort. The first element of service connection is therefore present. An in-service injury is also demonstrated. Service records do not document any specific chronic respiratory conditions affecting the Veteran's breathing, but do show treatment on multiple occasions for a cough associated with sinusitis and acute respiratory infections. Although the August 1977 pre-employment examination, conducted four months before the Veteran's separation from active duty), does not note any lung or chest abnormalities, the Veteran testified in June 2012 that she had problems breathing during service. The Board resolves any doubt in the Veteran's favor and finds that an in-service injury is established. Regarding the third element of service connection, a nexus between the Veteran's current respiratory disability and the in-service injury, the Board notes that service and post-service records do not indicate such a link. As noted above, service records do not document a chronic respiratory condition such as bronchitis or COPD, and the Veteran's lung and chest X-ray were normal at an August 1977 physical examination. Although the Veteran complained of a cough on several occasions, this symptom was accompanied by nasal congestion, a sore throat, and headache and was associated with sinusitis [now diagnosed - and service-connected - as allergic rhinitis]. The chronic cough, shortness of breath, and chest pain described by the Veteran as currently associated with her respiratory disability are not documented during service. There is also no post-service evidence of a chronic respiratory disability until October 2003, 25 years after active duty, when the Veteran was diagnosed with bronchitis at a private hospital. A chest X-ray taken at that time demonstrated increasing interstitial markings with a questionable left lower lobe infiltrate. This constitutes the first objective evidence of a chronic respiratory condition such as bronchitis or COPD. The weight of the competent medical evidence is also against the claim for service connection. None of the Veteran's treating physicians has provided an opinion in support of her claim; rather, the Veteran's VA and private physicians consistently attribute her chronic bronchitis and COPD to a more than 40-year history of cigarette smoking. The record also contains the opinion of the January 2014 VA examiner weighing against the claim. After reviewing the complete claims file and physically examining the Veteran, the VA examiner concluded that the Veteran's in-service history of sinusitis and upper respiratory infections were not related to the current respiratory disability. The examiner noted that the Veteran's sinusitis and upper respiratory infections were separate conditions from the current bronchitis and the bronchitis was "not otherwise related to service or symptoms, diagnosis, or treatment rendered on active duty." The examiner found that the Veteran's disability was instead etiologically related to longstanding continuous tobacco abuse. This medical opinion was well-reasoned and was accompanied by a rationale that made specific reference to evidence in the claims file and the Veteran's history. The Board therefore finds that it is entitled to significant probative weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Veteran has also submitted copies of several Internet articles describing the physiology, causes, and treatment for chronic bronchitis. However, the Board finds that this evidence actually weighs against the claim for direct service connection. The information submitted by the Veteran clearly identifies smoking and tobacco use as the "main cause of chronic bronchitis." The Board therefore finds that the Internet articles submitted by the Veteran do not support the claim for service connection. Service connection is also possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Chronic bronchitis and COPD are not chronic disabilities under 38 C.F.R. § 3.309(a), but reports of continuous symptoms since service can still support a claim for service connection under 38 C.F.R. §§ 3.303(a) and (d). However, in this case, the Veteran has not reported such a history. In statements to VA and in her June 2012 testimony, she reported a consistent history of sinus and allergy problems (characterized as respiratory issues) since service, but has not clearly described a history of symptoms associated with chronic bronchitis or COPD. Thus, an award of service connection based on a continuity of symptoms is not possible. The Board has also considered the Veteran's contentions regarding service connection, but notes that as a lay person, she is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to report observable symptoms, such as shortness of breath and a chronic cough, but finds that her opinion as to the cause of these symptoms simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). In sum, the record shows that the first evidence of the Veteran's claimed disability was several decades after her separation from service. In addition, there is no medical evidence indicating that the Veteran's chronic bronchitis or COPD may be associated with active duty. The Board therefore concludes that the evidence is against a nexus between the claimed respiratory disability and active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for allergic rhinitis (claimed as sinusitis) is granted. Entitlement to service connection for a respiratory disability, to include chronic bronchitis and COPD, is denied. ____________________________________________ L. B. YANTZ Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs