Citation Nr: 1807684 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 11-11 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a respiratory disability. 2. Entitlement to service connection for a bilateral shoulder disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1981 to December 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February 2010 and May 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in November 2015 and April 2017 for further development. The Board observes that the Veteran submitted lay statements relating to his respiratory disability claim after the last adjudication by the RO in the August 2017 supplemental statement of the case. As the Veteran's substantive appeal of the respiratory disorder claim was received by VA after February 2, 2013, an automatic waiver of evidence submitted by the Veteran and his representative is presumed. Vocational rehabilitation records were also received, but they do not pertain to the issues on appeal. The issue of entitlement to service connection for a bilateral shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a current respiratory disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran and his representative have not raised any issues with the duty to notify or duty 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 duty to assist argument). Entitlement to Service Connection for a Respiratory Disability A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans' Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Board finds that the Shedden elements are not met in this case because the preponderance of the evidence shows that the Veteran does not have a current respiratory disability. The Veteran was afforded a VA examination of his respiratory condition in May 2017. After reviewing the pertinent evidence, the examiner opined it is less likely than not that the veteran's claimed respiratory disorder, to include breathing problems were incurred in or caused by specific in-service injury, event, or illness that occurred during service as there is no pathology to render a diagnosis for a respiratory disorder, pulmonary condition or the Veteran's breathing problems. Furthermore, the examiner noted there is no evidence in the record of an event, condition, injury, or illness during service likely to result in or predispose to development of a respiratory disorder, pulmonary condition, or breathing problems. Though the Veteran had coccidioidomycosis in 1988, the examiner found that the natural history of that condition is full resolution without pulmonary sequelae. The examiner noted that current testing shows no evidence of pulmonary complications due to the 1988 infection. Objective findings in regard to the Veteran's respiratory function were normal. See, e.g., May 2017 Cerner Imaging Exam Report (showing normal objective findings and no acute cardiopulmonary process). A prior VA respiratory examination in September 2014 revealed substantially similar findings. The Board considered the Veteran's reports of respiratory complaints and finds that the preponderance of the evidence shows that the symptoms are related to the Veteran's service-connected acquired psychiatric disorder rather than a respiratory disorder. See, e.g., November 2010 Mental Health VA examination (noting the Veteran had a history of chest pain and feeling like he could not breathe during anxiety attacks). While the Veteran is competent to report his observable symptoms, the Board finds that the Veteran lacks the medical training and expertise required to diagnose complex respiratory disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 470-472 (1994). As there is no competent and credible evidence of a current respiratory disability in the record, the Veteran's claim for entitlement to service connection for a respiratory disability must be denied. ORDER Entitlement to service connection for a respiratory disability is denied. REMAND In its April 2017 remand order, the Board directed the AOJ to obtain a VA examination of the Veteran's shoulders in part to determine whether the Veteran's service-connected disabilities caused or aggravated current shoulder disabilities. The Board specifically instructed the examiner to address the Veteran's contention that his right shoulder disability was aggravated by overuse to compensate for a left shoulder disability. See also Veteran's September 2017 Statement in Support of Claim. The Board notes that while the Veteran is not service-connected for a left shoulder joint disability, the Veteran is service-connected for radiculopathy in the left upper extremity, which causes relevant symptoms including pain and functional loss. See, e.g., September 2016 VA cervical spine examination. While the AOJ obtained a VA shoulder examination in May 2017, the VA examiner did not address whether the service-connected radiculopathy in the Veteran's left upper extremity caused or aggravated the Veteran's current shoulder disabilities. Therefore, the AOJ should obtain an addendum opinion specifically considering the effects of such radiculopathy on the Veteran's disability picture for the shoulders to include any compensatory overuse of the right shoulder. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request the assistance of the Veteran and his representative in identifying any outstanding VA or private records. The AOJ should make reasonable attempts to obtain all identified relevant evidence and associate it with the Veteran's claims file. 2. After associating all identified relevant outstanding evidence with the Veteran's claims file, the AOJ should obtain an addendum opinion or examination from an appropriate examiner addressing whether the Veteran's shoulder disabilities were caused or aggravated by the Veteran's service-connected radiculopathy in the left upper extremity. The examiner should be provided with a complete copy of the claims file to include this remand order. The examiner should note all diagnoses in the record affecting the Veteran's upper extremities such as impingement syndromes, arthritis, muscle injuries, and radiculopathy. The examiner should assess the effects of the Veteran's service-connected radiculopathy of the left upper extremity on the Veteran's left shoulder joint. The examiner should also assess any effects on the right shoulder joint of increased reliance on that joint to compensate for the left-sided radiculopathy. The examiner should answer the following questions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's current shoulder disabilities were caused by the Veteran's service-connected radiculopathy of the left upper extremity. Please explain why or why not. b) Is it at least as likely as not that the Veteran's current shoulder disabilities were permanently worsened beyond normal progression (aggravated) by the Veteran's service-connected radiculopathy of the left upper extremity. Please explain why or why not. If the examiner finds that a disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. 3. After completing the above actions and any other necessary development, the claim must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs