Citation Nr: 18160007 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 13-21 992A DATE: December 20, 2018 ORDER Service connection for a pulmonary/respiratory disorder, to include chronic obstructive pulmonary disease (COPD) is denied. REMANDED A rating in excess of 10 percent for a left knee disability is remanded. A rating in excess of 10 percent for a right knee disability is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has COPD due to a disease or injury in service. CONCLUSION OF LAW The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1969 to June 1971. The Veteran testified before the undersigned Veterans Law Judge during an October 2015 hearing. This matter is on appeal from September 2010 and July 2013 rating decisions and was remanded by the Board of Veterans’ Appeals (Board) in February 2016. 1. Service connection for a pulmonary/respiratory disorder, to include COPD The Veteran contends that his COPD was incurred in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of COPD, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of COPD began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The record shows the Veteran was not diagnosed with COPD until several years after his separation from service. While the Veteran is competent to report having experienced symptoms intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of COPD. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the February 2018 VA examiner opined that the Veteran’s COPD was not at least as likely as not related to an in-service injury, event, or disease. The rationale was the service treatment records did not show a respiratory or pulmonary condition in service and the Veteran’s COPD was more likely than not related to his long history of tobacco abuse. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his COPD is related to an in-service injury, event, or disease, including smoking or allergies, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the February 2018 VA examiner’s opinion. Additionally, as previously noted in the Board’s February 2016 remand, Congress has specifically prohibited VA from directly service connecting disabilities on the basis of tobacco use during service if the claim was filed after June 9, 1998. See 38 U.S.C. § 1103 (specifically prohibiting service connection for disability or death on the basis that it results from a disease or injury attributable to use of tobacco products during the Veteran’s service). This claim was clearly filed after that date. Therefore, the Board cannot proceed with any further claim for service connection on the basis of the tobacco use during service. Further, the Board notes that the Veteran was previously denied service connection for allergies. Accordingly, there is no legal basis of entitlement to secondary service connection because the Veteran has not been granted service connection for the disability that he alleged caused the claimed disability. REASONS FOR REMAND 1. A rating in excess of 10 percent for a bilateral knee disability is remanded. The Veteran was most recently afforded a VA examination for his bilateral knee disabilities in February 2018. Upon review of the February 2018 examination report, the Board finds that while the examiner stated that pain significantly limited functional ability of the bilateral knees with repeated use over time, the examiner failed to report the limited functional ability in terms of range of motion. There is no indication in the record that the examiner attempted to elicit information and/or any estimate by the Veteran as to what extent the pain may affect his functional impairment. Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, upon remand, a new VA examination and opinion should be obtained to address this missing information. Additionally, in September 2018 the Veteran’s representative filed a brief that indicated the bilateral knee disability had increased in severity. The Veteran noted he frequently fell due to both his knees during the October 2015 hearing; however, the Veteran’s representative further noted the instability issue was not addressed during the February 2018 VA examination. Given this claim of worsening since the most recent VA examination, a contemporaneous VA medical examination is warranted. The matters are REMANDED for the following action: 1. Obtain any updated VA or adequately identified private treatment records relevant to the matter on appeal. 2. Schedule the Veteran for a new VA examination to ascertain the severity and manifestations of his service-connected bilateral knee disabilities. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is instructed to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected bilateral knee disabilities. The examiner should also provide the range of motion in degrees. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran’s disability. In this regard, the examiner must indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. Any additional impairment on use or in connection with flare-ups or repetitive use should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups or repetitive use affect functional impairment. This testing should be done regardless of whether the Veteran is tested during a flare-up or repetitive use over time or not. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kelly A. Gastoukian, Associate Counsel