Citation Nr: 20007161 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 14-32 414 DATE: January 28, 2020 ORDER Entitlement to service connection for a respiratory disability is denied. FINDING OF FACT The preponderance of the evidence fails to establish that a present disorder is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from January 1980 to December 1983, with additional service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This matter was previously remanded in July 2018 to request the complete dates of the Veteran’s periods of service in the National Guard and to provide the Veteran with a medical examination. The record includes evidence the Veteran was provided a VA examination in May 2019 and a Service Treatment Record Certification dated July 2019 indicating no additional records were discovered. The remand directives having been substantially complied with, no further action is necessary. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a respiratory disability. 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. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a 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). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). When a claim for service connection is based upon an injury that occurred during a period of ACDUTRA or INACDUTRA, presumptive periods and the presumption of sound of condition do not apply, regardless of whether the individual had a prior period of active service. Smith v. Shinseki, 24 Vet. App. 40, 44-46 (2010); Biggins, 1 Vet. App. at 477-78. The Veteran contends that he has a respiratory disability that is due to an in-service upper respiratory infection and smoke inhalation during INADUCTRA. The Veteran was diagnosed with intermitted rhinitis in May 2019. The Veteran’s service treatment records note treatment for an upper respiratory infection in September 1982 during active duty service. Treatment records also note that the Veteran was treated for smoke inhalation in January 1986 during a period of INACDUTRA. Elements (1) And (2) of Shedden are met. However, despite the current diagnosis and in-service illness, there is no evidence of a medical nexus to support a grant of service connection. Of record is a VA opinion from May 2019. The examiner opined that the Veteran’s disability was less likely incurred in or caused by the claimed in-service injury, event, or illness. Although subjective intermittent complaints a sinus or nasal condition were acknowledged, the examiner found no objective evidence of a respiratory disability, and explained that there was no objective evidence of a respiratory condition from the January 1986 incident of smoke inhalation during service. She reviewed the Veteran’s claims file, performed an in-person examination, and reviewed his medical records. Of note, the examiner reviewed a complete CT scan of the maxillofacial area that noted no significant bony abnormalities or evidence of acute sinusitis. A chest X-ray was normal, and the Veteran did not display any respiratory problems during the examination. The record does not contain any contradicting opinions. The Veteran’s lay report of experiencing breathing complications is something he is competent to report. However, his lay statements have little probative value in determining whether there is a nexus between the current disability and the alleged in-service injury, as such a determination requires medical and technical expertise beyond that of a lay person. See Layno v. Brown, 6 Vet. App. 465 (1994). Further, service treatment records note that the Veteran denied sinusitis, hay fever, asthma, shortness of breath, or ear, nose or throat trouble in May 1983, September 1984, September 1988, September 1992, February 1995, and January 1999; thus, the record does not show that the Veteran’s symptoms have been chronic since the inservice respiratory infection or since the January 1986 incident of smoke inhalation. Therefore, the Board finds there is no competent evidence to provide a nexus between the Veteran’s claimed disability and service. Accordingly, the Board finds that the claim of entitlement to service connection for a respiratory disability 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 of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.