Citation Nr: 18156782 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 09-00 214 DATE: December 11, 2018 ORDER Entitlement to service connection for asthma is denied. REMANDED Entitlement to service connection for a disability to account for bilateral shoulder pain is remanded. Entitlement to service connection for a gastrointestinal disorder, to include irritable bowel syndrome (IBS), is remanded. Entitlement to service connection for incontinence, to include as secondary to post tubal ligation syndrome, is remanded. FINDING OF FACT The most probative evidence of record does not show asthma to be etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW The criteria for entitlement to service connection for asthma have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1980 to February 1986 and from May 1986 to August 1992. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor her representative has raised any issues with the duty to notify or 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). Thus, the Board need not discuss any potential issues in this regard. In November 2015, the Veteran testified at a hearing before the undersigned Veterans Law Jude (VLJ). The Veteran has not alleged any deficiency with the conduct of her hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Most recently, the Board remanded the issues on appeal in June 2017 for further development. These issues have now been returned to the Board for further consideration. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). To establish a right to compensation for a present disability, 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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is seeking service connection for asthma as a result of her active duty service. A review of her service treatment records reveals that the Veteran indicated in her July 1992 Report of Medical History that she had asthma. The examiner wrote numbers next to each of her complaints, with further explanation. For asthma, he noted her last problem was more than one year ago, and she was on no medications at that time. The examiner indicated “not disabling.” A 1992 treatment record indicates she had a history of asthma, but had no “difficulties” and was taking no medications. In August 2016, the Veteran underwent a VA examination, at which she was diagnosed with asthma. The accompanying August 2016 VA medical opinion ultimately did not link the Veteran’s asthma to service on the basis that the Veteran’s service treatment records were essentially negative for related complaints. However, as the July 1992 Report of Medical History specifically noted a report of asthma, a new VA opinion was obtained. In an April 2018 opinion, the VA examiner found that, without speculation, the Veteran does have a diagnosis of asthma that is less likely than not incurred in or caused by her claimed asthma during military service. The examiner noted that there is no documentation of this Veteran being seen during military service or diagnosed with asthma located in her service treatment records. There is only one documentation noted in the service treatment records for the Veteran reporting a prior medical history of asthma. However, there is no record discovered of any respiratory treatment with inhalers during military service and further, no diagnosis of asthma mentioned in the July 1992 separation examination. During examination, the Veteran reported that she knew her asthma occurred while in military service; however, she could not recall any particular incidents/ exacerbations with her asthma while in service. There is no new evidence discovered to support this Veteran’s claim that her asthma is a continuation of military service illness. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2017). Currently, there is no medical evidence of record relating a current diagnosis of asthma to service. The April 2018 VA examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In rendering this opinion, the VA examiner accurately noted the fact that the Veteran reported a history of asthma in service, and otherwise accurately discussed the lack of any relevant treatment during service. There is no medical evidence to the contrary. The Board notes the Veteran’s assertions that she has asthma related to her active duty service. With regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Here, the Veteran’s complaints as to duration of symptoms are certainly capable of lay observation. However, the Board finds that the Veteran is not competent to relate asthma to her active duty service, as the Veteran does not have training in respiratory diseases. As such, the Veteran’s opinion is afforded little weight in the analysis of whether she has asthma related to service. By contrast, the physician who provided the April 2018 VA opinion reviewed the Veteran’s claims file and offered an opinion with supporting explanations as to why, in her medical judgment, the Veteran does not have asthma related to service. As such, the Board places the most significant weight on the April 2018 medical opinion, which finds against service connection. Thus, the Veteran’s claim for service connection for asthma must fail. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for asthma, and the benefit-of-the-doubt rule is not for application. REASONS FOR REMAND 1. Entitlement to service connection for a disability to account for bilateral shoulder pain is remanded. In the June 2017 remand, this issue was remanded by the Board in order to obtain a VA opinion addressing current diagnoses and etiology of any disabilities of either shoulder. The remand requested that the VA examiner specifically discuss the Veteran’s in-service complaint of right shoulder pain following a motor vehicle accident in May 1990 and the notation in July 1992 of continuing shoulder pain/muscle spasm in the right shoulder since the motor vehicle accident. In an April 2018 VA opinion, the examiner determined that the Veteran’s bilateral shoulder condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner did not discuss the Veteran’s complaint in the July 1992 Report of Medical History of continuing shoulder pain/muscle spasm in the right shoulder since the motor vehicle accident. As such, an addendum opinion should be obtained on this matter. 2. Entitlement to service connection for a gastrointestinal disorder, to include IBS. In the June 2017 remand, this issue was remanded by the Board in order to obtain a VA opinion addressing the etiology of the Veteran’s claimed gastrointestinal disorder, to include IBS. The remand specifically requested that the examiner discuss the Veteran’s recent diagnoses of IBS and gastroesophageal reflux disease in her VA treatment records. The remand also requested that the VA examiner consider the Veteran’s in-service gastrointestinal complaints, as well as her in-service bilateral tubal ligation, in rendering any opinions. In an April 2018 VA examination report, the Veteran was noted as having a diagnosis of IBS in 2012, a diagnosis of chronic constipation in 2014, and a diagnosis of gastroparesis, status post lap band surgery due to obesity, in 2014. An accompanying April 2018 VA opinion determined that the Veteran’s GI condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner provided no discussion of the fact that the Veteran continued to be noted in VA treatment records as having IBS, to specifically include in May 2016 and April 2017 VA treatment records documenting diagnoses of gastroesophageal reflux disease, abdominal pain and bloating, IBS-constipation, and gastritis. Moreover, the examiner did not discuss the Veteran’s in-service bilateral tubal ligation, as specifically requested in the June 2017 remand. As such, an addendum opinion should be obtained on this matter. 3. Entitlement to service connection for incontinence, to include as secondary to post tubal ligation syndrome. In the June 2017 remand, this issue was remanded by the Board in order to obtain a VA opinion addressing the etiology of the Veteran’s claimed urinary incontinence. The remand specifically requested that the examiner discuss the Veteran’s reports of in-service urinary tract infections, as well as her in-service bilateral tubal ligation, in rendering any opinions. In August 2017 and April 2018 VA opinions, the examiner determined that the Veteran’s urinary condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner provided no discussion regarding the Veteran’s in-service bilateral tubal ligation, as specifically requested in the June 2017 remand. As such, an addendum opinion should be obtained on this matter. Finally, all outstanding VA treatment records should be associated with the claims file. The matter is REMANDED for the following action: 1. Associate with the claims file all available medical records from the VA medical facilities in Salisbury and Charlotte from December 2017 to the present. 2. Return the claims file to the VA examiner who provided the April 2018 VA shoulder disorder opinion so that an addendum opinion may be obtained. If the same examiner is not available, an opinion can be provided by another VA examiner. The examiner should be asked to provide an opinion as to whether it is at least as likely as not that a disability of either shoulder was incurred during, or was caused by, her active duty service. In providing this opinion, the examiner should specifically discuss the Veteran’s in-service complaint of right shoulder pain following a motor vehicle accident in May 1990 and notation in July 1992 of continuing shoulder pain/muscle spasm in the right shoulder since the motor vehicle accident. It would be helpful if the examiner would use the following language, as may be appropriate: “more likely than not” (meaning likelihood greater than 50%), “at least as likely as not” (meaning likelihood of at least 50%), or “less likely than not” or “unlikely” (meaning that there is a less than 50% likelihood). The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. If additional examination is needed to render the above-requested opinion, such should be provided. 3. Return the claims file to the VA examiner who provided the April 2018 VA gastrointestinal disorder opinion so that an addendum opinion may be obtained. If the same examiner is not available, an opinion can be provided by another VA examiner. The examiner should be asked to provide an opinion as to whether it is at least as likely as not that any diagnosed gastrointestinal disorder, to include IBS, was incurred during, or was caused by, her active duty service. In providing this opinion, the examiner should specifically discuss the recent diagnoses of IBS, gastroesophageal reflux disease, and gastritis in the Veteran’s May 2016 and April 2017 VA treatment records. The examiner should also consider the Veteran’s in-service gastrointestinal complaints, as well as her in-service bilateral tubal ligation, in rendering any opinions. It would be helpful if the examiner would use the following language, as may be appropriate: “more likely than not” (meaning likelihood greater than 50%), “at least as likely as not” (meaning likelihood of at least 50%), or “less likely than not” or “unlikely” (meaning that there is a less than 50% likelihood). The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. If additional examination is needed to render the above-requested opinion, such should be provided. 4. Return the claims file to the VA examiner who provided the April 2018 VA incontinence opinion so that an addendum opinion may be obtained. If the same examiner is not available, an opinion can be provided by another VA examiner. The examiner should be asked to provide an opinion as to whether it is at least as likely as not that that the Veteran’s incontinence (shown/diagnosed in her VA outpatient treatment records) was incurred during, or was caused by, her active duty service. In providing this opinion, the examiner should specifically discuss the Veteran’s in-service bilateral tubal ligation and any relationship between this in-service procedure and her urinary incontinence. It would be helpful if the examiner would use the following language, as may be appropriate: “more likely than not” (meaning likelihood greater than 50%), “at least as likely as not” (meaning likelihood of at least 50%), or “less likely than not” or “unlikely” (meaning that there is a less than 50% likelihood). The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. If additional examination is needed to render the above-requested opinion, such should be provided. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Durham, Counsel