Citation Nr: 1820732 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 13-13 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a respiratory disability, claimed as pulmonary hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1983 to December 1992. She also had unverified periods of active duty for training and/or inactive duty training until 1998 in the Air Force Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Atlanta, Georgia. This issue was previously presented to the Board in July 2017, at which time it was remanded for additional development. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. A current respiratory disability was not incurred in service, has not been continuous since service separation, and did not manifest to a compensable degree within a year thereafter. 2. A current respiratory disability is not due to an in-service disease, injury, or incident therein, and may not be presumed to be due to service. CONCLUSION OF LAW The criteria for the award of service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In the present case, there is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA or identified by the Veteran. The Veteran's service treatment records, VA treatment records, and any identified private treatment records have all been obtained. The Veteran was afforded a VA medical examination for the disability on appeal. The VA and private medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal, as it is competent medical evidence pertaining to the existence and etiology of the claimed current disability sufficient to decide the claim. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the claims. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to VA's duty to assist). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. The Veteran seeks service connection for a respiratory disability. She asserts that during service she experienced repeated episodes of shortness of breath, coughing, respiratory infections, and similar complaints, indicative of onset of a chronic respiratory disability; therefore, service connection is warranted. 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, 1131; 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). 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). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Beginning with the Veteran's service treatment records (STRs), these records reflect that she sought treatment on several occasions during service for various respiratory complaints, including shortness of breath, chest pain, wheezing, and coughing. Diagnoses included a viral syndrome, upper respiratory infections, sinusitis, allergic rhinitis, bronchitis, tracheobronchitis with a component of bronchospasm, and pneumonia. Additionally, her December 1992 service separation report of medical examination, her lungs and chest were abnormal on clinical evaluation. A finding was made of expiratory rhonchi at the bases of the lungs. On an April 1996 reserve duty periodic physical examination, however, her lungs and chest were within normal limits, without evidence of any abnormality, and no respiratory symptoms were reported at that time. Based on these findings, the Board must conclude that while the Veteran experienced some respiratory complaints during service, such disabilities were acute and transitory in nature, as she did not seek further treatment following service and was without a respiratory disability on periodic medical examination for reserve duty in April 1996. Moreover, the Veteran was without a chronic respiratory disability immediately following service, according to the post-service evidence of record. Following service, the record is without any medical evidence of chronic or continuous respiratory symptomatology for many years. In December 2004, the Veteran sought private treatment for chest pain of recent onset. At that time, she denied any prior history of chest pain or dyspnea. She reported being a smoker. Hypertension was diagnosed. Mild pulmonary hypertension was also noted. Subsequent VA outpatient treatment records beginning in 2007 noted diagnoses of pulmonary hypertension and chronic obstructive pulmonary disease. Onset of these disabilities during active duty service or within a year thereafter was not noted, however. Thus, a current respiratory disability was not diagnosed until more than 10 years after separation from active duty service. This lengthy period without complaint or treatment is evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Therefore, the Board must conclude that a current respiratory disability did not have its onset in service and has not been chronic or continuous since that time. The competent evidence of record also does not establish a nexus between any disease, injury, or other incident of service, and a current respiratory disability. In a September 2017 VA examination report and medical opinion, a VA examiner diagnosed chronic obstructive pulmonary disease. Regarding the etiology of this disability, the examiner found no evidence of onset of chronic obstructive pulmonary disease or any other respiratory disability during active duty service, or for several years thereafter. While the Veteran reported shortness of breath during service, this complaint was subjective in nature and examination at that time did not indicate any underlying chronic cardiovascular or respiratory disability. The examiner found initial onset of a chronic lung disorder approximately 15 years after service separation. Therefore, the examiner opined that it was less likely than not any current respiratory disability was related or due to an in-service disease, injury, or other incident of service. Thus, because the competent evidence of record suggests against a nexus between the current pulmonary hypertension and chronic obstructive pulmonary disease and any disease, injury, or other incident of service, service connection must be denied. The Veteran has herself asserted that her respiratory disability is the result of an incident of service. The Board finds that the Veteran is competent to report such observable symptoms as shortness of breath and other respiratory symptoms, but is not competent to provide a nexus with an in-service disease or injury, as this question is of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The diagnosis and etiology of a respiratory disability is based on medical evaluation and clinical testing by a competent expert, as any such disability is established by objective clinical findings. Some medical issues require specialized knowledge and training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and a veteran's statements therein cannot be accepted as competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Likewise, the Veteran's lay contentions have not later been substantiated by a competent expert. Finally, the Veteran has not stated she is reporting competent evidence of a nexus as told to her by medical experts. Therefore, in light of the above, the Board finds that the preponderance of the evidence is against the claim, and service connection for a respiratory disability is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a respiratory disability is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs