Citation Nr: 18156086 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-46 218 DATE: December 6, 2018 ORDER Entitlement to service connection for a respiratory disability, claimed as breathing problems, is denied. Entitlement to an effective date earlier than January 18, 2012, for the grant of service connection for post-traumatic stress disorder (PTSD) is denied. Entitlement to an initial compensable rating for non-Hodgkin’s lymphoma is denied. FINDINGS OF FACT 1. While the Veteran reports various breathing issues, the most probative evidence indicates that he does not have a current respiratory disability. 2. The Veteran’s informal claim of service connection for PTSD was received by VA on January 18, 2012. 3. For the entire period on appeal, the Veteran’s non-Hodgkin’s lymphoma has been asymptomatic and has not required treatment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory disability have not been met. 38 U.S.C. §1131 (2012), 38 C.F.R. §3.303 (2017). 2. The criteria for an effective date earlier than January 18, 2012, for the award of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). 3. The criteria for a compensable schedular rating for non-Hodgkin’s lymphoma have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.117, Diagnostic Code 7709 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1964 through July 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for a respiratory disability, claimed as breathing problems Service Connection Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a) (2017). The Veteran alleges that he has breathing problems as a result of service, due to exposure to asbestos or an herbicide agent, such as Agent Orange. In July 1964, service treatment records show that the Veteran did not report and was not diagnosed with a breathing or respiratory disorder during an entrance examination. Likewise, in July 1968, the Veteran’s exit examination did not record any reports of respiratory symptoms or a diagnosis relating to breathing problems. Notably, the Veteran’s lungs and chest were normal on both examinations. The record also does not contain post-service treatment notes recording treatment or complaints of a persistent breathing problem. In September 2012, an independent examiner, Dr. S.P., performed a pulmonary functioning test that recorded normal testing results. Subsequently, Dr. S.P. completed a disability questionnaire, which indicated the Veteran did not have a diagnosed respiratory disability. The Board takes notice that Veteran has asserted some concerns that Dr. S.P. has neither the experience with VA procedures or complex medical equipment. To the extent that the Veteran challenges the qualifications of the September 2012 examiner in his July 2014 submission, there is no evidence of record to suggest that Dr. S.P. is not competent to offer a valid diagnosis or medical opinion based on his medical experience and training. Rather, Dr. S.P. has provided laboratory reports and diagnostic testing to support the opinions rendered. Thus, the Board finds Dr. S.P.’s medical opinion to be competent, credibly based in evidence and probative. As the record stands, there is no verified treatment or diagnosis for a breathing problem or respiratory disorder, either in-service or post-service. Thus, the totality of the competent evidence does not reflect that the Veteran has or has had a diagnosis of any current respiratory disability, related to breathing problems, during the relevant period on appeal. Absent the required diagnosis of a current disability, a claim for service connection fails. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For the reasons provided above, the preponderance of evidence is against the Veteran’s claim for service connection for a respiratory disability. 2. Entitlement to an effective date earlier than January 18, 2012, for grant of service connection for PTSD Unless specifically provided, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a) (2012). The implementing regulation provides that the effective date of an award of disability compensation is the day following separation from active service, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of claim or the date that entitlement to service connection arose. 38 C.F.R. § 3.400 (b)(2) (2017). The Veteran contests the effective date of January 18, 2012, for the award of service connection for PTSD. Specifically, he alleges that he filed his original claim for PTSD in 2002; thus, his effective date should be in 2002. In March 2002, a request for information was generated regarding a possible claim for service connection for an acquired psychiatric disability to include PTSD. In April 2002, the Veteran was forwarded correspondence from the VA requesting clarification on whether his claim for service connection was based on a diagnosis of PTSD or strictly a claim for depression. In December of 2002, the Veteran submitted correspondence solely addressing his diagnosis of depression. In a January 2003 rating decision, the claim for service connection for depression was denied. This decision was not appealed and became final in January 2004. See 38 U.S.C. §§ 5108, 7104, 7105, 7266; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. On January 18, 2012, the Veteran filed an informal claim for service connection for PTSD. As the record stands, there was no claim for PTSD prior to January 18, 2012. In 2002, the Veteran clarified that his claim for service connection was based on a diagnosis of depression. Further, after the January 2003 rating decision, no other statements or evidence relating to a diagnosis of PTSD was received prior to January 18, 2012. As the preponderance of the evidence is against an effective date earlier than January 18, 2012, for the grant of service connection for PTSD, the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an initial compensable rating for non-Hodgkin’s lymphoma Since service connection was established, the Veteran’s non-Hodgkin’s lymphoma has been rated as noncompensable (zero percent) pursuant to 38 C.F.R. § 4.117, Diagnostic Code 7715. Under these criteria, a 100 percent rating is assigned for active disease or during a treatment phase. The Note following the rating criteria provides that the 100 percent rating shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures. Six months after the discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. If there has been no local recurrence or metastasis, the disability is rated on residuals. In this instance, the Veteran was first diagnosed with non-Hodgkin’s lymphoma in August 2006. At that time, the diagnosis was noted to be an incidental finding and he was asymptomatic. In November 2006, it was noted that he was not currently receiving therapy for his lymphoma, remained well and had reported no symptoms. He also had no evidence of significant lymphadenopathy and no clinically apparent hepatosplenomegaly. Therapy was delayed until a time where there was evidence of disease progression. By August 2007, treatment notes record the continued absence of symptoms or disease progression and recommended observation without treatment. In September 2012, Dr. S.P. submitted a disability questionnaire stating that the Veteran did not require continuous medication to control his non-Hodgkin’s lymphoma. Further, he indicated that the Veteran had completed treatment and was in currently in what was described as “watchful waiting status”. There was no indication of complications or residuals of treatment. However, some symptoms, such as of feeling tired, lightheadness and shortness of breath were recorded due to non-Hodgkin’s lymphoma. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for a compensable evaluation. Even though the Veteran has some residual symptoms related to his non-Hodgkin’s lymphoma, he is not entitled to a 100 percent rating at any point during the period on appeal, because evidence consistently demonstrates that the Veteran had not had active disease or has been in a treatment phase since filing his service connection claim for non-Hodgkin’s lymphoma. Otherwise, the evidence does not demonstrate any other residual disability other than some tiredness, lightheadness, and shortness of breath, which has not been shown to be disabling. Based on these facts, the preponderance of the evidence is against finding that a higher compensable rating is warranted. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.B. Mmeje, Associate Counsel