Citation Nr: 18158559 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 11-23 340 DATE: December 17, 2018 ORDER Service connection for a right knee impairment, to include secondary to service-connected ilio-inguinal nerve damage, is granted. Service connection for a chronic respiratory disability is granted. FINDINGS OF FACT 1. The Veteran’s right knee impairment developed secondary to his service-connected ilio-inguinal nerve damage. 2. The Veteran’s chronic respiratory disorder, manifested by a chronic cough, had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee impairment have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for service connection for a chronic respiratory disorder, manifested by a chronic cough, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1959 to June 1960 and in the US Air Force from May 1961 to July 1962. The Veteran presented sworn testimony at a hearing before the undersigned in April 2017. The Board remanded this matter in October 2017 for additional development. Such development has occurred and the claim is once again before the Board for adjudication. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 148 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the appellant, and the appellant’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. Right knee impairment The Veteran has asserted entitlement to service connection for his right knee impairment. He asserts that he has knee pain secondary to his service connected ilio-inguinal nerve damage. As part of his claim for service connection, the Veteran was afforded a VA examination in February 2018. At this examination the Veteran was diagnosed with right knee meniscal tear and right knee osteoarthritis, that is manifested by pain on weightbearing and pain of the patella on palpation. However, the Veteran told the examiner that he has unrelated episodic sharp shooting pain in his knee. The examiner stated that Veteran’s diagnosed right knee meniscal tear and right knee osteoarthritis that was not related to his active military service. However, the examiner did state that the sharp shooting pain that the Veteran is experiencing is related to his service connected ilio-inguinal nerve damage. Specifically, that ilio-inguinal neuropathy is caused by damage or dysfunction of the ilio-inguinal nerve. Damage to the nerve can occur during surgery, or due to trauma of the abdomen or pelvis, which can lead to persistent pain. This pelvic nerve pain may be felt in the abdomen, in the lower back, or between legs. This neuropathic pain is described as sharp, shooting, or throbbing, and as such the Veteran is most likely experiencing deferred shooting pain. Recently, the Federal Circuit held that “pain in the absence of a presently-diagnosed condition can cause functional impairment,” which may qualify as a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that “a veteran could demonstrate service connection simply by asserting subjective pain” because, to establish that a disability is present, the veteran “will need to show that... pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “‘to function under the ordinary conditions of daily life including employment.’“ Id. at 1363 (quoting 38 C.F.R. § 4.10). The Board finds that the sharp shooting pain the in the Veteran’s right knee is secondary to his service connected ilio-inguinal nerve damage. Further, the sharp shooting pain the Veteran experiences in his right knee causes pain that reaches the level of functional impairment. Therefore, in light of the foregoing, the Board finds that the evidence is sufficient to support a grant of service connection for right knee impairment as secondary to the Veteran’s service connected ilio-inguinal nerve damage. Accordingly, service connected for a right knee impairment is granted. 2. Respiratory Disability The Veteran seeks service connection for a respiratory disability, which he believes had its onset in service. A review of the Veteran’s service treatment records notes complaints and treatment for a constant cough in 1959 and 1960, diagnosed as pharyngitis, swollen tonsils, ear infection, a possible foreign body in the airway, and acute laryngitis. Specifically, in 1959, there is a notation that the Veteran had a cough for several months. There is another notation that there is no known etiology for his chronic cough. On the Veteran’s May 1960 separation examination, he reported a history of whooping cough, and was diagnosed with hypertrophic tonsils. A review of the Veteran’s post service treatment records show that he has been diagnosed with bronchitis, chronic obstructive pulmonary disease (COPD), chronic lung disease, rhinitis, and sinusitis. Further, the Veteran’s VA treatment notes show that he has been treated for a constant cough with various medications and has received multiple diagnosis as the etiology of such cough. There is a treatment note, dated March 2017, noting that the Veteran complained and was treated for a persistent cough when was while stationed in France during active duty. At the Veteran’s hearing, he stated that he had ongoing respiratory symptoms in service that have continued ever since. The Board observes that the Veteran is competent to report respiratory problems during service and since service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); As part of his claim for service connection the Veteran was afforded a VA examination to determine what respiratory diagnosis he currently has and the etiology such diagnosis. The examiner diagnosed the Veteran with COPD, as his primary respiratory condition. The examiner noted that the Veteran was seen in service for a cough and was assessed by an ear, nose, and throat specialist; however, there was no evidence showing that the Veteran developed a chronic condition due to his in-service diagnoses. The examiner went on to state that the post service, the Veteran had diagnoses of pneumonia, bronchitis, COPD, chronic lung disease, rhinitis, and sinusitis, and that there was no evidence that these conditions are related to his military service. As such, the examiner opined that the Veteran’s post service respiratory disabilities were not related to service or that had their onset in service. However, at the Veteran’s hearing he stated that his symptom of a chronic cough began in service and has continued ever since service, and that he has received multiple diagnoses throughout his life, but that the symptomatology has not changed. The Board finds that his symptom of a chronic cough had its onset in service, and has continued since service. The medical evidence shows that the Veteran was treated for respiratory problems, including pharyngitis, swollen tonsils, ear infection, a possible foreign body in the airway, and acute laryngitis during service. Additionally, the Board notes that post-service private and VA treatment records indicate that the Veteran was treated for variously diagnosed respiratory disorders, including pneumonia, bronchitis, COPD, chronic lung disease, and rhinitis. Such records show that the Veteran was treated for respiratory complaints in-service, and ever since service discharge. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has a chronic respiratory disorder that had its onset during his period of service. 38 C.F.R. § 3.303 (a); Flynn v. Brown, 6 Vet. App. 500, 503 (1994); see also 38 C.F.R. § 3.300 (b). Therefore, service connection for a chronic respiratory disorder is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson