Citation Nr: 18159424 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 15-41 340 DATE: December 19, 2018 ORDER Entitlement to service connection for pulmonary emphysema is denied. REMANDED Entitlement to service connection for a left foot condition is remanded. Entitlement to service connection for a right foot condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. FINDING OF FACT The competent medical evidence does not demonstrate that the Veteran has pulmonary emphysema that is attributable to his active service or any incident of service. CONCLUSION OF LAW The criteria for service connection for pulmonary emphysema have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to July 1968. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for pulmonary emphysema is denied. The Veteran contends that he has pulmonary emphysema which developed following his exposure to chlorine gas in service. He seeks service connection for the condition. The question before the Board is whether the Veteran has pulmonary emphysema that began during service or is at least as likely as not related to an in-service injury, event, or disease. A review of the Veteran’s service treatment records does not reflect that the Veteran ever sought treatment for or was diagnosed with symptoms of pulmonary emphysema. He did report a history of colds and shortness of breath on the June 1968 Report of Medical History that accompanied his separation examination; however, a chest X-ray examination did not reveal any abnormalities, and as such, no diagnosis was set forth on the separation examination. VA treatment records show that the Veteran sought treatment for shortness of breath in May 2001 and reported regular use of inhaled medication. He was thereafter diagnosed with COPD in August 2001. Subsequent chest X-ray examinations in November 2008 and in December 2011 show a continued diagnosis of COPD. There are no available medical records which show a diagnosis of or treatment for emphysema. The Veteran has submitted private medical records documenting his treatment with Allen County Cardiology; however, none of these records reflect any treatment for emphysema, and instead show continued treatment for COPD. The Veteran has not been afforded an examination in connection with the emphysema service connection claim, but VA does not have a duty to provide one here, as there is no indication that the condition has been present during the pendency of this appeal, or that it may be associated with the Veteran’s service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no competent evidence to suggest that the Veteran has ever been diagnosed with emphysema independent of his diagnosis of COPD. Moreover, the Veteran has not submitted any objective medical evidence of his own in support of the claim, and he does not have the training or credentials to provide a diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, there is no duty to provide the Veteran with an examination to evaluate the etiology of the purported pulmonary emphysema. Without any supporting records or testimony, the Board concludes that the preponderance of the evidence is against a determination that the Veteran has had pulmonary emphysema at any time during the pendency of the claim. Service connection is denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). The Board would point out that nothing in this decision should be taken as a comment on the separate claim of service connection for COPD, which will be further developed on remand. REASONS FOR REMAND 1. Entitlement to service connection for left and right foot conditions is remanded. The Veteran contends that he had preexisting left and right foot conditions that were permanently aggravated by service and have continued to the present day. A review of the service treatment records reflects that the Veteran was diagnosed with second degree pes planus and was noted to have a history of bilateral foot infections on the July 1964 pre-enlistment examination. Although there are no other records documenting that the Veteran ever sought treatment for or was diagnosed with a left and/or right foot condition, on the June 1968 Report of Medical History, he did report a history of swollen joints and foot trouble. Currently, the Veteran has been diagnosed with and treated for bilateral plantar spurs, as well a left neuroma and resolved plantar fasciitis; therefore, there is evidence of preexisting bilateral foot conditions and currently diagnosed bilateral foot conditions that may be associated with the preexisting conditions. As the Veteran has never been afforded an examination to evaluate the etiology of the bilateral foot conditions, on remand he should be scheduled for an examination in order to elicit such an opinion, to specifically include a discussion of whether the Veteran had a bilateral foot condition that preexisted service, and, if so, whether that preexisting condition clearly and unmistakably was aggravated permanently by service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for left and right knee conditions is remanded. With regards to the left knee condition claim, a review of available service treatment records reflects that on both the July 1964 pre-enlistment examination as well as the May 1966 enlistment examination, the Veteran reported a history of treatment for a left knee injury prior to service. Furthermore, a May 1968 outpatient report reflects that the Veteran sought treatment for complaints of a painful knee. Finally, on the June 1968 Report of Medical History, the Veteran noted a history of experiencing swollen joints. Current VA medical records document treatment for arthralgias of the bilateral knees, as well as degenerative changes in both knees. The Veteran contends that he had a preexisting left knee condition that was aggravated permanently as a result of service and has continued since service. As for the right knee condition, the Veteran contends that the condition is secondary to the left knee condition. He has never been afforded a VA examination to evaluate the etiology of either the left or right condition; as such, on remand, he should be scheduled for a VA knee examination for the purpose of eliciting an etiology opinion. The examiner must be specifically requested to opine as to whether Veteran had a left knee condition that preexisted service, and, if so, whether that preexisting left knee condition clearly and unmistakably was aggravated permanently by service. The examiner should also be specifically requested to opine as to whether any right knee condition is attributable to or aggravated permanently by the left knee condition. See McLendon, supra. 3. Entitlement to service connection for a low back condition is remanded. During both the July 1964 pre-enlistment examination and May 1966 enlistment examination, the Veteran reported that he underwent treatment for a back injury in 1963. Available service treatment records do not reflect any treatment for or diagnosis of a low back condition; however, the Veteran did report a history of experiencing swollen joints and back pain on the June 1968 Report of Medical History. Post-service, VA and private medical records reflect that the Veteran sought treatment in 2003 for complaints of low back pain, and was diagnosed with mild facet degenerative joint disease. Thereafter, the Veteran underwent low back surgery in August 2004. Subsequent treatment records reflect continued treatment for a low back disability characterized by pain and stiffness. The Veteran has never been afforded a VA spine examination with an opinion as to the likely etiology of his low back condition, despite the fact that there is a suggestion that he had a preexisting low back condition prior to entering service and continued to experience symptoms of low back pain throughout service and thereafter. As such, on remand he should be scheduled for a VA spine examination to determine the nature of his low back condition and the elicit an opinion as to the likely etiology of the condition, to specifically include a discussion of whether the low back condition preexisted service, and, if so, whether that preexisting condition clearly and unmistakably was aggravated permanently by service. See McLendon, supra. 4. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. The Veteran contends that he developed symptoms of COPD in service following his exposure to chlorine gas, and that those symptoms have continued to the present day. Although service treatment records do not reflect any specific complaints related to COPD, the Veteran did report a history of experiencing shortness of breath on the June 1968 Report of Medical History. He has been treated for symptoms of COPD through both VA and a private treatment provider since 2001. The Board also notes that in an August 2012 outpatient report, a VA physician stated that the Veteran’s COPD was attributable to both chlorine gas exposure as well as the Veteran’s long history of smoking. The Veteran has never been afforded an examination with an opinion as to the likely etiology of the COPD, to include any discussion of the possible relationship between the currently diagnosed COPD and his purported exposure to chlorine gas in service. On remand, he should be scheduled for a VA respiratory examination for the purpose of eliciting an opinion as to the likely etiology of the COPD. See McLendon, supra. The matters are REMANDED for the following action: Schedule the Veteran for a VA medical examination to address the nature and etiology of his bilateral knee conditions, bilateral foot conditions, low back condition, and COPD. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran’s documented medical history and assertions relating to any symptoms of his separate conditions. All necessary special studies or tests must be accomplished. With regards to the bilateral foot conditions, low back condition, and left knee condition, the examiner is asked to opine as to whether each separate condition clearly and unmistakably preexisted service, and clearly and unmistakably did NOT worsen beyond natural progression during service. The Board notes that clear and unmistakable is an “onerous” evidentiary standard, requiring that the evidence be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003). Regardless of the examiner’s response to this question, please alternatively consider whether it is it at least as likely as not (a 50 percent probability or higher) that each separate condition on appeal had its onset during service or is otherwise related to active service. Moreover, with regard to the right knee condition and low back condition, the examiner is asked to opine whether it is at least as likely as not that the condition in question was caused or aggravated (a chronic or permanent worsening of the underlying condition, as contrasted to mere temporary or intermittent flare-ups of symptoms that resolve and return to the baseline level of disability) by the left knee condition. If the opinion is that the left knee condition aggravated the right knee condition and/or the low back condition, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. It is essential that the examiner discuss the underlying rationale of all opinions expressed, preferably citing to relevant evidence in the file supporting conclusions and/or medical literature or authority. The Board notes the anatomical distinctions between the conditions on appeal and recognizes that separate examinations may be necessary in this case. However, the Board leaves this to the discretion to the RO and/or the examining medical facility. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel