Citation Nr: 18156196 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 13-19 797 DATE: December 7, 2018 ORDER Entitlement to service connection for bronchitis is denied. FINDING OF FACT A current respiratory disorder did not manifest in service and is not otherwise related to the Veteran’s military service. CONCLUSION OF LAW A respiratory disorder was not incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1966 to March 1967 and from October 1983 to February 1984. He had additional service in the Alabama Army National Guard from December 1979 to December 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision. In April 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In April 2015, the Board remanded the case for further development. That development was completed, and the case has since returned to the Board for appellate review. The Board notes that the appeal originally included the issues of entitlement to service connection for a heart disorder and bilateral hearing loss. However, in a November 2018 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for valvular heart disease with dilated atria and cardiac murmur and bilateral hearing loss. The AOJ’s grant of service connection for these issues constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, those matters are no longer in appellate status. Id. at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Service connection may also 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). The term “chronic disease,” whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, there is no evidence showing that the Veteran has one of the enumerated diseases, such as bronchiectasis. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a respiratory disorder, to specifically include bronchitis. The evidence of record does not show that the Veteran has a respiratory disorder that manifested in service or for many years thereafter. A January 1967 service treatment note indicated that the Veteran was treated for acute bronchitis. However, January 1967 chest x-rays showed no significant abnormalities, and a January 1967 separation examination documented a normal clinical evaluation of the Veteran’s lungs. In addition, the examining medical officer noted that the Veteran’s only significant medical history showed that the Veteran was admitted to Landstuhl Army Hospital for acute bronchitis with no return episodes. Following service, private treatment records dated from January 1990 to April 2014 showed that the Veteran was treated for acute bronchitis, acute pharyngitis, chronic obstructive pulmonary disease (COPD), sinusitis, allergies, and upper respiratory infections. A March 1997 private x-ray of the Veteran’s chest showed pleural and parenchymal abnormalities consistent with pulmonary asbestosis, assuming a sufficient environmental exposure history and an adequate latency period. During a March 2003 VA respiratory examination, the Veteran complained of coughing and shortness of breath. He indicated that he developed symptoms of coughing and a respiratory condition while he was stationed in Germany in approximately 1966 and that he was diagnosed with acute bronchitis at that time. He stated that he continued to have intermittent symptoms of coughing and some shortness of breath since that time. He related that he was evaluated for his symptoms in approximately 1997, that it was noted that he had some pleural and parenchymal changes in his lungs at that time, and that he was told that asbestosis was possibly present. He indicated that he worked from 1969 to 1979 in the industrial sector with chemicals and that he came into contact with asbestos during that period of time. On examination, the Veteran’s lungs were clear, and no rales were noted. A chest x-ray showed no acute lung disease. The examiner diagnosed the Veteran with chronic bronchitis and asbestos exposure. In a March 2005 VA treatment note, the Veteran indicated that he had difficulty breathing due to a history of asbestos exposure. He also stated that he quit smoking 12 years earlier. The treating VA physician noted that the Veteran had pulmonary function tests in 2003, but the findings were consistent with poor patient effort. The physician reported that the Veteran had a dry cough. He diagnosed the Veteran with possible COPD. Subsequent VA treatment notes dated through February 2013 included diagnoses of COPD. During a June 2018 VA respiratory conditions examination, the Veteran reported a long history of bronchitis and that he was unsure of the onset of his symptoms. He described experiencing dyspnea with minimal activities, such as walking around the block. Pulmonary function testing revealed severe airflow obstruction with marked bronchodilator response with air trapping and obstructed airway resistance present. Chest x-rays indicated bronchitis. The Veteran’s pulmonary vascularity appeared within normal limits, and no pleural effusions or definite areas of consolidation were seen. The VA examiner diagnosed the Veteran with chronic bronchitis. He opined that the Veteran’s bronchitis was less likely than not caused by military service. He noted that January 2018 and June 2018 chest x-rays showed no evidence of asbestosis. He also indicated that the March 1997 private chest x-rays that indicated pulmonary asbestosis may represent an error in diagnosis, as there was no current evidence of pulmonary asbestosis. In addition, he noted that the January 1967 separation examination cited in-service treatment for acute bronchitis with no return episode. He stated that there was no evidence of chronic bronchitis during military service. After a review of all the evidence of record, the Board finds that service connection for a respiratory disorder is not warranted. In fact, there is no medical opinion otherwise relating a current respiratory disorder to the Veteran’s military service. The Board does acknowledge the Veteran’s own statements asserting that his current respiratory disorder is related to his military service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of a current respiratory and whether the delayed onset of such a disorder is related to exposure to fumes in service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, even assuming the Veteran’s lay assertions regarding etiology were competent, the Board nevertheless finds the June 2018 VA examiner’s opinion to be more probative, as it was provided by a medical professional with knowledge, training, and expertise and is supported by rationale based on such knowledge. The VA examiner also reviewed pertinent evidence and considered the Veteran’s own reported history and lay statements. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for a respiratory disorder, and the claim must be denied. As the preponderance of the evidence is against the claim for service connection for a respiratory disorder, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Osegueda, Counsel