Citation Nr: 18144245 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-26 052 DATE: October 25, 2018 ORDER Service connection for bronchitis, asthma, and chronic obstructive pulmonary disease (COPD) is denied. A compensable rating for hammertoe, left foot, is denied. A compensable rating for hammertoe, right foot, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a respiratory disorder that began in or is due to a disease or injury in service, to include specific in-service event, injury, or disease such a presumed exposure to herbicide agents. 2. The Veteran’s left foot hammertoe does not impact all of his toes and there is no evidence of claw foot. 3. The Veteran’s right foot hammertoe does not impact all of his toes and there is no evidence of claw foot. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder, to include asthma and COPD, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307(a)(7)(iii). 2. The criteria for a compensable rating for hammertoe, left foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5282. 3. The criteria for a compensable rating for hammertoe, right foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5282. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to November 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision and a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and 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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements above is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). With regard to herbicide exposure (Agent Orange), VA laws and regulations provide that a Veteran who, during active military, naval, or air service in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962 to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam War period. 38 C.F.R. § 3.307. For these Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).   Analysis The Veteran contends that his COPD is related to his service in the Republic of Vietnam due to herbicide exposure, Agent Orange. The record reflects that the Veteran served in Vietnam for over a year so exposure to herbicide agents is presumed. Medical treatment records from a visit to the VA pulmonary clinic reveal that the Veteran was diagnosed with COPD in February 2014 and asthma in April 2014. Based on such competent evidence, the Board finds that the Veteran has a current respiratory disorder, such as asthma and COPD. Thus, the first element of a service connection claim has been met. With the first two elements of service connection established, the issue for the Board, is whether the Veteran’s current diagnosis of COPD is related to his active military service. The Board finds that there is no causal relationship between his current disability and his active military service. The Veteran’s October 1968 entrance examination is silent for COPD, bronchitis or asthma. On the accompanying Report of Medical History, the Veteran annotated having or having had hay fever. However, during his active service there was no complaint, treatment or a diagnosis for COPD, bronchitis, asthma or hay fever. At discharge, his November 1970 separation examination reflect a normal clinical evaluation for pulmonary ailments. There was no discharge Report of Medical History associated with the file. Following service, in April 2010, the Veteran complained of cough and wheezing. The physician assessed COPD, although at the time of treatment there was no official diagnosis. A VA pulmonary consult record reflects that the Veteran was treated for shortness of breath (SOB), chronic cough, and wheezing in May 2010. The pulmonologist recorded a history of asthma and allergies. In addition, his cough had become worse. As referenced above, a diagnosis of COPD was determined in February 2014. The appointment was a follow-up for increased SOB with exertion. Based on the evidence above, the Board finds that there is no causal link between the Veteran’s current COPD and his active military service. His service treatment records were silent for COPD or any other pulmonary condition. Following service, he first sought treatment for COPD in April 2010, some 40 years after service. Although not dispositive, a lack of treatment weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran’s health and medical treatment during and after military service). Here, in addition to a lack of treatment following service, there was no complaint, treatment or diagnosis during his active service. In a September 2013 statement, the Veteran reference having a respiratory disorder for over a year. The Board finds this competent statement tends to show a more recent onset. Therefore, the Board finds a causal relationship between his active service and his current disability has not been met. As such, the claim for service connection on a direct basis must fail. Additionally, COPD is not listed as one of the enumerated diseases under 38 C.F.R. § 3.309(a), and thus service connection based on a presumptive or continuity of symptomatology theory of disability is not warranted. While the Veteran has asserted a relationship, the question of a relationship between a respiratory disorder and active military service, to include exposure to herbicide agents, is a complex medical issue far beyond the competence of a lay person. In view of the absence of findings of pertinent symptoms in service, and the absence of pertinent symptoms after active duty, there could be no reasonable basis for an examination other than speculation. However, service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. The duty to assist is not invoked where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C. § 5103A(a)(2) (2012). The act of filing a claim and simply stating the condition is related to service is not enough to trigger the duty to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Courts have held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Consequently, a VA examination is not warranted for the Veteran's claim for service connection a back disorder (claimed as back pain). McLendon, 20 Vet. App. at 83. In sum, the Veteran has a current disability, however there is not a nexus between the current disability and military service. The preponderance of the evidence weighs against a finding for service connection for COPD. The benefit-of-the-doubt rule has been considered but the weight of the evidence is against the claim. 38 C.FR. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson, 12 Vet. App. 119, 126-27. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Estban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran’s bilateral hammertoe disability has been rated as noncompensable pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5282. This provision provides that hammertoe of single toes is rated as noncompensable while hammertoe of all toes, unilateral without claw foot, is rated 10 percent disabling. Entitlement to a compensable rating for bilateral hammertoe. Historically, the Veteran’s original claim for bilateral hammertoes was filed in November 2005. His claim was initially denied in a December 2006 RO rating decision. Following the decision, he perfected an appeal to the Board, which after a series of remands in June 2009, September 2010, and January 2012, eventually granted service connection in January 2013. In a February 2013 rating decision, the RO issued a noncompensable rating, effective December 5, 2005. The Veteran promptly filed a notice of disagreement (NOD) in March 2013 asserting that he had to retire from his job because he could not walk or stand on concrete and his symptoms warranted a 30 percent rating. As noted above, there were several Board remands and each one requested clarification regarding VA examinations. As the Veteran has been service-connected for bilateral hammertoes, the recap below of the VA examinations will solely focus on the examiner’s clinical observations to determine whether a compensable rating is warranted in light of the noted rating criteria. The Veteran was initially afforded a VA examination in June 2010. The VA examiner’s diagnosis was right and left hallux valgus deformity, with debility; right and left hammertoe deformity, with debility; and right and left calcaneal heel spurs. The examiner noted that the Veteran’s preinduction examination showed that he had overlapping of the second toe of both feet, which was a benign congenital abnormality. Further, the examiner noted no other abnormalities of the feet were documented during service, therefore, there were no hallux valgus formation or hammertoe deformities during service. In October 2010, another VA examination was conducted by a different VA examiner. During this examination the examiner recorded that the Veteran stated when he wore his boots during active service his feet bothered him resulting in pain, weakness and stiffness. Physical examination of the feet revealed large bunions on both first toes and he also had hammertoes bilaterally. There was an overlap of the first and second toes and the second and third toes. In addition, there was pain on palpitation over the first and second metatarsophalangeal joints. The examiner referenced X-ray imaging to provide diagnoses of bilateral hallux, valgus deformity, bilateral hammertoe deformity and bilateral calcaneal spurs. The imaging results did not show arthritis, fractures, or another bony abnormality. A final VA examination in March 2012, was not a physical examination, but a file review where the examiner was requested to provide an addendum opinion as to whether or not it was at least likely as not that the Veteran’s toe crossing deformity was aggravated by his active military service. Treatment records submitted after the RO rating decision in February 2013, reveal no significant changes in the Veteran’s feet. In July 2016, he reported complaints of cramping of his feet and toes. The pain had been increasing over several months. He also experienced a burning sensation daily that increased during the evening when it was time for him to go to bed. However, the contemporaneous medical records did not show any physical changes to the feet such as claw foot or hammertoe across all his toes. Based on the evidence above, the Board finds that the Veteran’s bilateral hammertoe disability reflected symptomatology more nearly approximated by a noncompensable rating. Specifically, the VA examinations in June 2010 and October 2010 both show that the Veteran does not have claw foot or hammertoe across all his toes. As such, the Board finds that the preponderance of the competent evidence weighs against a compensable rating. The Board recognizes the Veteran’s contentions that his foot disability warrants a compensable rating. He is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board finds that in this instance the probative medical evidence of record carries the greatest weight. The symptoms for a rating of the next-higher level of 10 percent have not been met. The competent clinical evidence does not reflect hammertoe manifest across all toes on either foot, nor is claw foot apparent on either foot. Further, the trained VA professionals, to include the VA physician who examined the Veteran in October 2010, have provided medical reports that reviewed the medical history, considered lay testimony and provided a reasoned rationale for the Board to evaluate the claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). For these reasons, the Board places greater weight on the medical evidence of record. The Board also notes that the evidence shows that the Veteran has right and left hammer toe deformity, to include as noted on the October 2010 VA examination report. This foot disorder is directly contemplated by the Schedule, thus the Board will not analysis under analogous diagnostic codes. See Copeland v. McDonald, 27 Vet. App. 333, 336-38 (2015) (holding that, “as a matter of law, DC 5284 does not apply to the eight [other] foot conditions specifically listed in § 4.71a,” and so listed conditions could not be rated by analogy under that DC and stating that when a condition is listed in the schedule, rating by analogy is not appropriate). Moreover, the evidence shows generally the same symptomatology throughout the period on appeal that staged ratings are not applicable. See Fenderson v. West, 12 Vet. App. 119 (1999). In sum, the Board finds the totality of the weight of competent, probative evidence shows the Veteran’s symptomatology reflects a frequency, severity, and duration commensurate with a noncompensable rating. In other words, the preponderance of the evidence is against the claim of entitlement to a compensable rating for the Veteran’s bilateral hammertoe disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel