Citation Nr: 18159977 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-44 960 DATE: December 20, 2018 ORDER Entitlement to service connection for a respiratory disorder, to include as secondary to chloracne, is denied. REMANDED Entitlement to service connection for arthritis of the shoulders is remanded. Entitlement to service connection for arthritis of the elbows is remanded. Entitlement to service connection for arthritis of the knees is remanded. Entitlement to service connection for arthritis of the hands is remanded. FINDING OF FACT A current respiratory disorder has not been demonstrated. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from July 1965 to July 1967. Respiratory Disorder, to include as Secondary to Chloracne The Veteran maintains that he currently has a respiratory disorder related to service and/or as a result of chloracne. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). Alternatively, a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. A review of the Veteran’s service treatment records reveals that he was not seen with any complaints or findings of a respiratory disorder in service. At the time of the Veteran’s June 1967 service separation examination, normal findings were reported for the lungs and chest. On his June 1967 service separation report of medical history, the Veteran checked the “no” boxes when asked if he had or had ever had shortness of breath; asthma; pain or pressure on chest; or chronic cough. There were no reports of respiratory problems at that time. The Veteran also did not report having respiratory problems on his initial application for compensation. Post-service treatment records associated with the file also make no reference to findings or diagnoses of a respiratory disorder. After reviewing all the evidence both lay and medical, service connection for a respiratory disorder is not warranted. To date, there has been no medical evidence submitted or received demonstrating that the Veteran had a respiratory disorder at any time throughout the appeal period. The Veteran was afforded the opportunity to submit evidence demonstrating a relationship between any current respiratory disorder and his period of service and has not done so. Congress, as a general rule, limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.§ 1110, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.§ 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, the general rule is that in the absence of proof of present disability there can be no valid claim. Based on the above, to the extent that the medical evidence addresses whether the Veteran has a respiratory disorder, it indicates that he does not. The Veteran is competent to report his current symptoms, but his reports must be weighed against the medical evidence of record. See Grover v. West, 12 Vet. App. 109, 112 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran has indicated that he currently has a respiratory disorder, the medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's reports made during the course of his claim for VA benefits. The weight of the evidence is against a finding that the Veteran currently has a respiratory disorder. A necessary element for establishing service connection-evidence of a current disability-has not been shown. Moreover, there is also no competent medical evidence of record relating any current respiratory disorder to the Veteran's period of service. The Veteran was afforded the opportunity to submit such evidence and has not done so. Furthermore, the Veteran would also not be competent to provide a medical opinion regarding etiology of any currently diagnosed respiratory disorder. See Jandreau. For the foregoing reasons, the claim for service connection for a respiratory disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. REASONS FOR REMAND As it relates to the claims of service connection for bilateral hand, bilateral shoulder and bilateral knee arthritis, the Board notes that he Veteran has been diagnosed as having degenerative joint disease of each of these joints. The Veteran has also been diagnosed as having bilateral carpal tunnel syndrome. The Board further observes that the Veteran has indicated that it is his belief that the arthritis of these joints is related to duties performed in service, to include carrying heavy back packs while in the field. The Board also notes that the Veteran is also the recipient of the Combat Infantry Badge. 38 U.S.C. § 1154(b). Furthermore, service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include arthritis, and organic diseases of the nervous system (such as carpal tunnel syndrome) manifest themselves to a certain degree within a certain period of time following service. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (2017). Given the foregoing, the Veteran should be afforded VA examinations to determine the etiology of any current shoulder, elbow, hand, or knee disorders and their relationship, if any, to his period of service. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current bilateral shoulder, elbow, hand and knee disorder, to include degenerative joint disease. All indicated tests and studies should be performed and all findings should be reported in detail. The entire record must be made available to the examiner and the examiner should note such review in his/her report. The examiner is requested to identify all current shoulder, elbow, hand, and knee disorders. For each identified disorder, the examiner is requested to render an opinion as to whether it is at last likely as not (50 percent probability or greater) any current shoulder, elbow, hand or knee disorder, to include arthritis, had its onset in service, within the one year of service, or is otherwise related to service? (Continued on the next page)   In addressing the above, the examiner must note that the Veteran was awarded the Combat Infantry Badge. Therefore, the Veteran's statements with regard to in-service combat-related events should be considered credible even in the absence of contemporaneous records. See 38 U.S.C. § 1154(b) (2012). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. S. Kelly, Counsel