Citation Nr: 20021630 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-35 718 DATE: March 26, 2020 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to the service-connected sleep apnea with pulmonary sarcoidosis, is denied. REMANDED Entitlement to service connection for depression is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s COPD was incurred in, caused or aggravated by, or is otherwise etiologically related to, his active service or the service-connected sleep apnea with pulmonary sarcoidosis. CONCLUSION OF LAW The criteria for establishing service connection for COPD, to include as secondary to the service-connected sleep apnea with pulmonary sarcoidosis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February to August 1975 and January 1976 to January 1980. This appeal was previously remanded in June 2019 for further evidentiary development, including providing the agency of original jurisdiction the opportunity to obtain medical opinions concerning the nature and etiology of the Veteran’s lung and depressive conditions. That Board remand is incorporated herein by reference. In that remand, the Board determined that the Veteran’s claims were to be considered by the Board, de novo. [Additionally, the Board notes that a claim for service connection for anxiety was denied by the Board in a January 2019 decision. That decision is final. 38 C.F.R. § 20.1100.] Service Connection—COPD, to include as Secondary to the Service-Connected Sleep Apnea with Pulmonary Sarcoidosis The Veteran contends that he has COPD that is related to his active service. The Board finds that the preponderance of the evidence is against finding that the Veteran’s COPD warrants service connection—on a direct or secondary basis. In this regard, the Board notes that the Veteran is currently service connected for sleep apnea with pulmonary sarcoidosis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). 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, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptoms after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established for any disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The analyses below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. According to a May 2016 VA examination, the examiner determined that the Veteran’s COPD was less likely as not related to his service-connected sarcoidosis. Changes in the Veteran’s respiratory status was reflective of COPD associated with smoking. Following the June 2019 remand, a VA opinion was obtained in November 2019. The examiner determined that there is no basis upon which to link the Veteran’s COPD to his active service and that it was less likely than not caused or aggravated by his sleep apnea with sarcoidosis. The opinion considered the Veteran’s long history of smoking and his in-service occurrence of sarcoidosis. There is no medical opinion of record linking the Veteran’s COPD to his active service or to his service-connected sleep apnea with pulmonary sarcoidosis. In this regard, the Veteran has not submitted any medical evidence suggesting that his COPD is related to his active service or this service-connected disability. Accordingly, based on the negative medical opinions discussed above, service connection for COPD—on a direct or secondary basis—is denied. The preponderance of the evidence is against this claim. Reasonable doubt has not arisen. Accordingly, the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Entitlement to service connection for depression The Veteran contends that he has depression that is related to his active service. The Board finds that there is insufficient evidence upon which to adjudicate this claim and that a remand is therefore necessary. Service medical records are silent for complaints or reports of depressive symptoms. In the June 2019 remand, the Board determined that there was no conclusive evidence that the Veteran had been diagnosed with a psychiatric disability prior to, or at the time of entry into, his active service. As such, the Veteran is presumed sound at entry. On VA examination in June 2016, the examiner acknowledged the Veteran’s previous diagnosis for posttraumatic stress disorder (PTSD) and depressive disorder, NOS, noting that under DSM-IV an individual not satisfying full criterion for PTSD was assigned a diagnosis of an anxiety disorder, NOS. The examiner further stated that the Veteran’s stressor or trauma events occurred prior to his entrance into service. The examiner recharacterized the Veteran’s diagnoses in accordance with the DSM-V as unspecified trauma and stressor related disorder. The examiner did not address the diagnosis of depressive disorder, NOS. Following the June 2019 Board remand, a November 2019 medical opinion was obtained. The examiner noted that the Veteran’s claim for service connection occurred after a previous examination and that the Board decision denied service connection for anxiety. This is not the case. The Board determined in its June 2019 decision that the Veteran’s claim for depression related to a June 2015 rating decision. The opinion addressed the Veteran’s current diagnoses and provided an opinion stating that his diagnosed cannabis use disorder and cocaine disorders were unrelated to his active service. The opinion lists a portion of the Veteran’s mental health history, including previous reports of depressive symptoms and a previous diagnosis of depressive disorder in addition to a diagnosis of PTSD, which this examiner determined was incorrect, and that the Veteran did not meet criteria for PTSD. However, the examiner did not reconcile the diagnosis and symptoms of depression, other than to mention it. Unfortunately, because both examiners seemingly have ignored the Veteran’s previous diagnoses of depression, and an additional remand is necessary in order to obtain an opinion reconciling the Veteran’s long history of mental health treatment and various diagnoses. The examiner’s conclusion that the Veteran has cannabis use disorder and cocaine use disorder that are unrelated to service, without explaining his history of depressive symptoms or why his symptoms are attributable to his substance use disorders, and not any other cause, is inadequate. This matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. Contact the Veteran to determine whether there are any additional relevant private treatment records and procure any necessary authorizations to obtain such records. 2. Return the claims file, to include a copy of this remand, to the examiner who conducted the November 2019 VA examination, or another qualified examiner, to render an opinion on the appropriate diagnoses and etiologies of the Veteran’s depression. The examiner should review the claims file and indicate such on the examination report. The Veteran may be recalled for examination if deemed necessary. The examiner should address the nature and etiology of the Veteran’s depression. In discussing the Veteran’s mental health, the examiner must reconcile and explain how and why the Veteran’s history of symptoms and previous diagnoses are now characterized into his current diagnoses, and whether the Veteran’s current condition is as likely as not (50 percent probability or better) related to his active service. In doing so, the examiner must address previous VA and private mental health assessments and examinations. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lee 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.