Citation Nr: 18155547 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-29 591 DATE: December 4, 2018 ORDER Entitlement to service connection for a respiratory disease, to include chronic obstructive pulmonary disease (COPD), is denied. Entitlement to service connection for alopecia is granted. Entitlement to an earlier effective date for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a right wrist dislocation is remanded. FINDINGS OF FACT 1. The weight of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a respiratory disease, to include COPD. 2. The weight of the evidence is at least in equipoise as to whether the Veteran’s alopecia began during active service. 3. A July 2012 rating decision denied service connection for PTSD. The Veteran did not appeal the decision nor was any additional information or evidence received within one year of the rating decision. 4. On August 3, 2015, the Regional Office (RO) received an intent to file a claim for compensation. On January 26, 2016, the RO received an application for disability compensation for PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disease, to include COPD, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for alopecia have been meet. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.159(a). 3. The July 2012 rating decision is final. 38 U.S.C. § 7105(c) (2017); 38 C.F.R. §§ 20.302, 20.1103 (2017). 4. The criteria for an effective date prior to August 3, 2015, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2000 to January 2012. The Veteran’s claims of entitlement to service connection for a respiratory disease, alopecia, and a right wrist dislocation come to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Denver RO of the Department of Veterans Affairs (VA). The Veteran’s claim for an earlier effective date for the grant of service connection for PTSD comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by the Denver RO of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in August 2017. A transcript of the hearing is associated with the claims folder. In his April 2017 substantive appeal, the Veteran stated that he “also appealed . . . allergic rhinitis . . .” In the August 2017 Board hearing the Veteran suggested that his claim for allergic rhinitis had “fell to the wayside.” In February 2016 the Veteran filed a petition to reopen his claim for service connection for allergic rhinitis. In June 2016 the RO issued a rating decision which, in part, denied the Veteran’s claim to reopen allergic rhinitis and granted service connection for PTSD. Later in June 2016 the Veteran filed a notice of disagreement, but, limited his specific issue of disagreement to the effective date for the grant of service connection for PTSD. While the Veteran did include allergic rhinitis in his April 2017 substantive appeal, 38 C.F.R. 20.201(a) (5) requires that a formal notice of disagreement be filed and specifies that filing the wrong VA form does not extend, toll, or otherwise delay the time limit for filing the correct form. Unfortunately, the Veteran’s claim for allergic rhinitis was not included in the June 2016 notice of disagreement and the appeal period has since expired. REFERRED ISSUE The issue of service connection for sleep apnea was raised in the August 2017 Board hearing and is referred to the AOJ for adjudication. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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. See 38 U.S.C. § 1110 (2017); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The VA is required to give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Nothing in the regulatory or statutory provisions require both medical and competent lay evidence. Indeed, competent lay evidence can be sufficient in and of itself to substantiate a disability claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). When evaluating lay evidence, the Board must consider whether the witness is competent to report the evidence. A lay person is competent to report information when they have knowledge of the facts or circumstances they are reporting. 38 C.F.R. § 3.159(a) (2). Additionally, a lay person is competent to report observable symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, a lay person is not competent to report information that requires specialized education, training, or experience. 38 C.F.R. § 3159(a) (2). Should the Board determined that the lay evidence is competent, the Board must determine whether it is also credible. See Layno, 6 Vet. App. at 469. (Credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). After the Board has made competence and credibility determinations, it must evaluate the evidence. See 38 U.S.C. § 7104(a). In doing so, the Board may favor one medical opinion over another. See D’Aries v. Peake, 22 Vet. App. 97, 107 (2008). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for a respiratory disease, to include COPD. The Veteran contends that his respiratory disease is related to his active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a respiratory disease and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Despite the Veteran’s contention that he suffers from a chronic respiratory disease, his VA medical records and service treatment records do not indicate that he has sought treatment for any respiratory condition. Indeed, the Veteran’s VA medical records demonstrate that in April 2013 and August 2017 the Veteran denied experiencing shortness of breath, dyspnea, cough, or hemoptysis. (08/26/2017, CAPRI, p. 69, 222). The Board notes that the Veteran has been afforded four VA medical opinions regarding a diagnosis of a respiratory condition. In a February 2012 the Veteran underwent a pulmonary function test and chest x-rays. Based on the results of the pulmonary function test, a VA medical examiner diagnosed the Veteran with asthma, despite the chest x-rays being negative for “acute disease of the chest.” (02/19/2012, C&P Exam, p. 32, 41). In describing the Veteran’s medical history, the examiner noted that he developed wheezing for about 3 weeks during his last deployment, but the wheezing resolved without medical evaluation. (02/19/2012, C&P Exam, p. 33). In August 2013 the Veteran underwent a pulmonary function test and chest x-rays. Based on the results of the pulmonary function test, a VA medical examiner diagnosed COPD, despite negative chest x-rays. (09/18/2013, C&P Exam, p. 14, 19). The examiner concluded that the Veteran’s COPD was at least as likely as not incurred in service, but, in providing rationale for his decision, the examiner indicated that the evidence supported an environmental allergy. (09/18/2013, C&P Exam, p. 39). Further, the examiner indicated that Veteran’s medical records were not available for review at the time of the examination. In September 2013 a VA examiner opined that a diagnosis of a respiratory condition could not be supported by the Veteran’s service treatment records. (09/18/2013, C&P Exam, p. 12). The September 2013 examiner indicated that he conducted a complete review of the Veteran’s medical records. In May 2015 a VA examiner reviewed the Veteran’s file and determined that he had no known respiratory diagnosis. In rendering her opinion, the examiner noted that the Veteran’s August 2013 pulmonary function test was normal. Further, the examiner noted that the Veteran worked as a personal trainer without complaints or medical treatment for a respiratory condition. The examiner found that the lack of complaints or treatment combined with the Veteran’s exercise intensive employment “counter any claim that the Veteran has any symptomatic respiratory condition whatsoever.” (05/05/2015, C&P Exam, p. 2). The conclusions reached by the February 2012 and August 2013 examiners have been disputed by the May 2015 VA examiner. The May 2015 examiner explained that the pulmonary function tests relied on by the previous examiners are not diagnostic for either asthma or COPD. Furthermore, the May 2015 examiner indicated that the August 2013 pulmonary function test was “essentially normal.” (05/05/2015, C&P Exam, p. 2). The Board notes that, while the February 2012 examiner diagnosed the Veteran with a respiratory condition, he indicated that the symptoms were acute and resolved without medical intervention. Moreover, while both examiners concluded that the Veteran’s pulmonary function test were indicative of a respiratory condition, neither examiner considered the Veteran’s negative chest x-rays. For the foregoing reasons, the Board finds that the February 2012 and August 2013 examiners’ opinions are of little probative value. The Board assigns the highest degree of probative value to the opinion of the May 2015 examiner, as she considered all relevant medical evidence and the Veteran’s lay testimony, including testimony regarding the onset of respiratory symptoms and the Veteran’s post-military employment. Based on the May 2015 examiner’s opinion, the negative chest x-rays, and lack of medical treatment records, the Board finds that the preponderance of the evidence is against a finding of a current respiratory disease. Therefore, entitlement to service connection for a respiratory disease is not warranted. 2. Entitlement to service connection for alopecia. The Veteran contends that his alopecia began during active service. The Board concludes that the Veteran has a current diagnosis of alopecia that began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran was diagnosed with alopecia during his VA medical examination in February 2012. (02/19/2012, C&P Exam, p. 22). During the Veteran’s August 2017 Board hearing the Veteran stated that he first became aware of his alopecia following his fourth deployment when a barber informed him that he was missing a section of hair on the back of his neck. (08/22/2017, Hearing Transcript, p. 16-17). While the barber is not a medical professional, the loss of hair is observable to a lay person and the observation supports the later medical diagnosis rendered. The Board notes that the Veteran was medically diagnosed with alopecia during a VA examination in February 2012, approximately a month after his discharge from active duty. (02/19/2012, C&P Exam, p. 22). The temporal proximity of the diagnosis of alopecia and the Veteran’s discharge from active duty support his contention that alopecia incurred in-service. Given this, and in consideration of his credible statements as to being alerted of hair loss while on active duty, the evidence is at least in equipoise as to whether the alopecia had an in-service onset. The Board notes that there are two conflicting medical opinions regarding whether the Veteran’s alopecia is related to service. In August 2013 a VA medical examiner concluded that alopecia was at least as likely as not incurred in-service as the Veteran’s hair loss began in service. (09/18/2013, C&P Exam, p. 33). Conversely, in September 2013 a VA medical examiner concluded that alopecia was less likely than not incurred in-service as there was no objective evidence of alopecia in-service. (09/18/2013, C&P Exam, p. 6). The Board finds that the September 2013 examiner failed to duly consider the Veteran’s competent lay testimony regarding in-service hair loss, and therefore, his opinion is of little probative value. After considering the Veteran’s lay testimony, the August 2013 VA medical examiner’s opinion, the Veteran’s ongoing treatment for alopecia, and the close temporal proximity of the Veteran’s diagnosis to his active duty service, the Board finds that the evidence is at least in relative equipoise on the question of whether the claimed disability had its onset in service. As such, entitlement to service connection for alopecia is granted. 3. Entitlement to an earlier effective date for the grant of service connection for PTSD. Generally, the effective date of an award based on an original claim, or a claim reopened after final adjudication, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a). Except as otherwise provided, the effective date of an award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). In the current case, the Veteran filed his initial claim for entitlement to service connection for PTSD in December 2011. A rating decision was issued in July 2012 denying service connection. No notice of disagreement was filed and no new and material evidence was submitted within the one-year appeal period. On August 3, 2015, the Veteran submitted an intent to file. On January 26, 2016, he submitted a formal claim for entitlement to service connection for PTSD. In a June 2016 rating decision, the RO granted service connection for PTSD effective August 3, 2015. During a Board hearing conducted in August 2017, the Veteran proffered two arguments regarding entitlement to an earlier effective date for PTSD. First, he argued that he submitted a notice of disagreement appealing the July 2012 rating decision. Unfortunately, no documentation exists in the record indicating the Veteran sought to appeal the July 2012 rating decision. Second, the Veteran asserts that he was not afforded a VA examination for PTSD prior to the issuance of the July 2012 rating decision. Despite the Veteran’s assertion, the record does contain a January 2012 VA examination in which no mental health diagnosis was rendered. (03/15/2012, C&P Exam, p. 67). In any event, the presence or absence of an examination is not material to the question of an earlier effective date here. While the Veteran is undoubtedly frustrated by what he perceives to be an adjudication error in the July 2012 decision, appealing the effective date established in the June 2016 rating decision is not the proper procedural course to resolve that perceived error, because there can be no freestanding claim for an effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). If the Veteran believes that the RO made a clear and unmistakable error (CUE) in denying service connection for PTSD in the July 2012 rating decision, he should consider filing a new claim alleging CUE. In sum, the effective date for an award of compensation based on a claim reopened after final disallowance is the date the AOJ received the claim to reopen, or the date entitlement arose, whichever is later. As such, the Board concludes that August 3, 2015, the date the RO received the intent to file, is the proper effective date and the claim for an earlier date must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a right wrist dislocation is remanded. The Board cannot make a fully-informed decision on the issue of a right wrist dislocation because no VA examiner has opined on whether the disability is related to active service. The Board notes that the Veteran has been afforded three VA medical examinations regarding a right wrist disability. However, in the most recent VA examination it seems the RO requested a medical opinion on the Veteran’s left wrist as opposed to the claimed right wrist. (09/18/2013, C&P Exam, p. 29). In February 2012 the Veteran underwent a VA medical examination in which no right wrist disability was diagnosed. (3/15/2012, C&P Exam, p. 15). A new examination was conducted in August 2013 in which the Veteran was diagnosed with a right wrist sprain. However, the examination contained findings as to both wrists, with no express opinions provided. (09/18/2013, C&P Exam, p. 23, 29). In September 2013 an additional VA medical opinion regarding the Veteran’s wrist was proffered. However, while the RO did direct the examiner to consider evidence of a right wrist sprain, the RO requested the examiner provide an opinion on a left wrist disability, and the examiner’s rationale did not directly reference which wrist he was offering an opinion on. (09/18/2013, C&P Exam, p. 2). As it is not clear that a VA medical opinion has been made on the Veteran’s right wrist dislocation, the Board concludes that a remand is necessary to ensure an adequate medical opinion is of record. The matter is REMANDED for the following action: 1. The RO should obtain copies of VA treatment records for the Veteran’s disabilities from August 2017 to the present. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right wrist disability is at least as likely as not related to active service. (Continued on the next page)   The examiner must provide a complete rationale for all opinions expressed. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Glenn, Law Clerk