Citation Nr: 18146502 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-31 447 DATE: October 31, 2018 ORDER Entitlement to service connection for degenerative arthritis (DA) and degenerative disc disease (DDD) of the lumbar spine is denied. REMANDED Entitlement to service connection for bronchitis (claimed as a pulmonary disorder) is remanded. FINDING OF FACT The Veteran’s DA and DDD of the lumbar spine did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for DA and DDD of the lumbar spine are not met. 38 U.S.C. §§ 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the U.S. Army from April 1969 to January 1971. This case comes before the Board on appeal of a June 2014 rating decision. Service Connection Claim Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted through the application of statutory presumptions for chronic conditions, which includes arthritis. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2017); see also 38 U.S.C. §§ 1112 (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303(b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112 (2012); 38 C.F.R. § 3.307(a)(3) (2017). The application of these presumptions operates to satisfy the “in-service incurrence or aggravation” element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012). Entitlement to service connection for degenerative arthritis (DA) and degenerative disc disease (DDD) of the lumbar spine is denied. Here, the Veteran contends that his lumbar spine DA and DDD was caused by an in-service injury. Based on the evidence of record, the Board disagrees. At the outset, the Veteran has been diagnosed with DA and DDD of the lumbar spine, meeting the first element of service connection. See February 2016 VA Examination. However, the claim fails to meet the second prong, which requires an in-service incurrence or aggravation of a disease or injury. Specifically, the Veteran’s STRs are negative for complaints, treatment or a diagnosis of DA and DDD of the lumbar spine. See STRs. In fact, in the January 1971 separation examination, all the Veteran’s systems were indicated to be normal, with the only issue listed being the Veteran’s vision. Likewise, the July 1974 VA examination failed to reveal any abnormalities in the Veteran’s musculoskeletal system. Furthermore, the Veteran was diagnosed with his current back disability in July 2012, several decades after his discharge from service. Moreover, in the February 2016 VA examination, the VA physician remarked that the Veteran’s STRs were silent for any back conditions or complaints, stating that there is no documentation of a back injury or complaints of a back condition during the Veteran’s time in service. The VA physician added that there is no medical evidence or documentation of a chronic back condition or back complaints after discharge until the x-ray findings in 2012. As such, the physician reasoned that the Veteran’s current back disability is age related and less likely than not due to in-service event or injury. The Board acknowledges that the Veteran is competent to provide lay evidence regarding events in which he has personal knowledge, but neither the Veteran nor his spouse have the medical expertise, training, or specialization to offer medical diagnoses, statements, or opinions. See 38 C.F.R. § 3.159 (a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (“a layperson is generally not capable of opining on matters requiring medical knowledge”). Likewise, although the Veteran stated that his private doctor, Dr. P., provided a positive nexus opinion, no such opinion or documentation has been provided. Based on the foregoing, the Veteran’s back disability was not incurred in service and did not manifest to a compensable rating within a year of his discharge. Thus, the Veteran is not entitled to the chronic disease presumption and the claim must be denied. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for bronchitis (claimed as a pulmonary disorder) is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Here, in the February 2016 VA examination, the VA physician opined that the Veteran did not have a diagnosis of bronchitis in service and there was no medical evidence that his recurrent episodes of bronchitis were related to the pneumonia in service. Conversely, the Veteran contends that his chronic bronchitis is the result of his service-connected chronic pneumonia. See August 2017 Correspondence. More importantly, the Veteran provided evidence that indicates his service-connected pneumonia has resulted in or contributed to his chronic bronchitis. Id. As the VA physician has not opined on whether the Veteran’s service-connected pneumonia caused or aggravated his bronchitis, an addendum medical opinion is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran’s bronchitis. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should address the following: (a.) Whether it is at least as likely as not the currently diagnosed bronchitis was caused or aggravated by the Veteran’s service-connected pneumonia. If aggravation is found, the examiner must identify a baseline level of disability and discuss the extent of worsening related to the service-connected disability. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 3. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claim on appeal. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Umo, Associate Counsel