Citation Nr: 20052004 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 14-35 846 DATE: August 5, 2020 ORDER Entitlement to service connection for a respiratory disability is denied. REMANDED Entitlement to service connection for a headache disability, to include as secondary to the service-connected cervical or lumbar spine disabilities, is remanded. Entitlement to service connection for allergic rhinitis (claimed as a sinus disability), to include as secondary to the service-connected cervical or lumbar spine disabilities, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to the service-connected lumbar spine disability, is remanded. FINDING OF FACT The Veteran has not been diagnosed with a respiratory disability during the appellate period, and the symptom of shortness of breath has not risen to the level of functional impairment that impaired his earning capacity during the appellate period. 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 from February 1979 to November 1980. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, these issues were previously before the Board in June 2018. The Board remanded the service connection claims for respiratory, sinus, headache, and erectile dysfunction disabilities for further development. Subsequently, in October 2018, the Board also remanded service-connection claims for bilateral foot/ankle disabilities. An April 2020 supplemental statement of the case (SSOC) was issued. It only addressed the service connection claims for the respiratory, sinus, headache, and erectile dysfunction disabilities. An SSOC has not yet been issued as to the bilateral ankle disabilities; thus, the service connection claims for bilateral ankle/foot disabilities are not currently before the Board. In March 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference hearing. A copy of the hearing transcript is of record and has been reviewed. As discussed in the previous June 2018 remand, the Veteran executed a Power of Attorney in favor of Christopher A. Porco, an attorney, that was limited to the issues addressed herein. This new Power of Attorney revoked an earlier appointment of the American Legion as to these issues only. Subsequently, the Veteran also revoked the appointment of Mr. Porco as his representative but did not file a new VA Form 21-22 or VA Form 21-22a to appoint a new representative. The Board found in the June 2018 decision that the Veteran has elected to proceed pro se on these issues, but the American Legion continues to represent him on any other issues. Since the June 2018 decision, of which the Veteran was sent notice, the Veteran has not appointed a new representative in this matter and continues to proceed pro se only as to these issues. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for a respiratory disability Service connection may be granted for a disability resulting from a 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 also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that ”Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.”  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Generally, respiratory disabilities are not considered by VA to be a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is competent to report the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Turning to the evidence of record, the Veteran asserted he had shortness of breath, and that it might be related to his service-connected cervical or lumbar spine disabilities. See March 2018 hearing transcript. VA treatment records show the Veteran’s lungs have been found to be clear to auscultation, with good breath sounds and without rales, rhonchi, or wheezing. See, e.g., June 2004, April 2008, May 2008, June 2008, December 2008, September 2009, December 2009, April 2014, February 2018, and July 2019 VA treatment records. In December 2017, the Veteran’s private clinician noted that the Veteran had a medical history of shortness of breath, as well as hypertension, dizziness, and sleep apnea. See January 2018 private treatment records. No assessment was made regarding the Veteran’s shortness of breath, and it was not attributed to either his service-connected cervical or lumbar spine disabilities. In October 2018 and March 2019 private treatment records, the Veteran reported having shortness of breath. He denied lung problems, chronic cough, uncomfortable breathing, excessive sputum, and wheezing. On physical examination, respirations were even and unlabored. No assessment was made regarding a respiratory symptom, and the shortness of breath was not attributed to his cervical or lumbar spine disabilities. See also March and May 2019 VA treatment records. The Veteran was afforded a chest CT scan in October 2018. The CT scan did not show lung nodules or masses. The lungs were free of active infiltrate traits but showed scattered calcified granulomas bilaterally. No pleural effusions, pathologic hilar, or mediastinal adenopathy was noted. The subdiaphragmatic structures were unremarkable, and no acute or bony abnormality were seen. The impression was scattered small calcified granulomas. No noncalcified parenchymal nodules were found. Annual imaging was recommended due to the Veteran’s smoking history. In August 2019, a VA pulmonary CT scan was ordered to screen for lung cancer. It was cancelled because they unable to get a hold of the Veteran. It was noted that he was currently smoking 2 to 4 cigarettes a day and was trying to quit, but in the past, he had smoked ½ pack per day. Another August 2019 VA treatment record showed that he had a 46-year history of smoking with an average of 0.75 packs per day. In November 2019, the Veteran was afforded a VA respiratory examination. The examiner indicated the Veteran had not been previously diagnosed with a respiratory disability, and he did not meet the criteria on examination for a respiratory disability diagnosis. The Veteran indicated that he became short of breath when he walked long distances, and that it had onset about 10 years earlier. He had not been treated for shortness of breath in the past. The Veteran denied that the shortness of breath had any impact on his ability to perform occupational functioning or ordinary activities. The Veteran was afforded pulmonary function testing (PFT) in November 2019. It showed pre-bronchodilator results of 80 percent predicted, FEV-1 of 86 percent predicted, and FEV-1/FVC of 107 percent predicted. Post-bronchodilator results were FVC of 90 percent predicted, FEV-1/FVC of 51 percent predicted, and FEV-1/FVC of 56 percent. The examiner, a nurse practitioner, found that there were no findings, signs, or symptoms to support a respiratory diagnosis. In addition, the examiner explained that the abnormal PFT results were not accurate due to poor effort by the Veteran. The examiner also noted that the Veteran’s shortness of breath was not related to the service-connected cervical and lumbar spine disabilities because there was neither support in the medical literature, nor reasonable scientific logic, that would support a relationship between a respiratory disability and the cervical or lumbar spine disabilities. The Board finds that a preponderance of the evidence shows that the Veteran does not have a currently diagnosed respiratory disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the Veteran is competent to report shortness of breath as a symptom, he is not competent to diagnose a respiratory disability or attribute his symptom to another disability. To do so requires medical training and expertise that the Veteran has not been shown to possess. See Layno, 6 Vet. App. at 465. Although lay persons are competent to provide opinions on some medical issues, diagnosis of a respiratory disability and determining the etiology of such a disability falls outside the realm of common knowledge for a lay person. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In a recent case, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the term disability as used in 38 U.S.C. §§ 1110, 1131 ”refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” While the Saunders case focused exclusively on pain unattributed to a diagnosis or an identifiable underlying malady or condition, the same reasoning could apply to a symptom such as shortness of breath on exertion, which was unattributed to a diagnosed condition. However, even under the Federal Circuit’s holding in Saunders, the Board finds that the Veteran in the present case has not presented evidence to demonstrate that the shortness of breath reaches the level of functional impairment of earning capacity sufficient to be reasonably interpreted as a current disability under the governing statutes and regulations. The Veteran’s November 2019 VA examination found no respiratory conditions, and the Veteran denied that his functional ability was affected by the shortness of breath. Consequently, the absence of examination findings to support a respiratory disability diagnosis and the Veteran’s denial that the shortness of breath has caused functional impairment that has impaired his earning capacity during the appellate period weighs heavily against the claim. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a respiratory disability. 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 claims for service connection, that doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Finally, the Board notes that the Veteran has neither raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for a headache disability, to include as secondary to the cervical or lumbar spine disabilities, is remanded. The Veteran was afforded a VA examination in November 2019 for the headache disability. The examiner found that the headache disability was not proximately due to, or the result of, the Veteran’s service-connected disabilities because the Veteran’s headache symptoms were subjective only, and there was no objective evidence to support a medical relationship. In addition, the examiner found that service treatment records lacked objective medical evidence to confirm recurrent or chronic treatment of a headache disability. The medical opinion is inadequate in its current form as it was based solely on a lack of objective medical evidence in service and wholly dismissed the Veteran’s competent reports of headache pain. See Dalton v. Nicholson, 12 Vet. App. 23 (2007); Buchannan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, the examiner failed to provide an opinion as to whether the service-connected neck or low back disability aggravated the headache pain, which also makes the November 2019 VA medical opinion inadequate to decide the claim in its current form. On remand, new VA medical opinions should be obtained as to the nature and etiology of the headache disability. 2. Entitlement to service connection for allergic rhinitis (claimed as a sinus disability), to include as secondary to the service-connected cervical or lumbar spine disabilities, is remanded. The Veteran was afforded a VA examination in November 2019 for the allergic rhinitis disability (claimed as a sinus disability). The November 2019 VA examiner concluded that the allergic rhinitis disability was not proximately due to or the result of the Veteran’s service-connected disabilities because there was no objective medical evidence during service or after service to support a relationship between the Veteran’s service-connected neck or back disabilities and the allergic rhinitis. The medical opinion is inadequate in its current form as it was based solely on a lack of objective medical evidence and wholly dismissed the Veteran’s competent reports of his symptoms. See Dalton v. Nicholson, 12 Vet. App. 23 (2007); Buchannan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, the examiner failed to provide an opinion as to whether the service-connected neck and back disabilities aggravated the allergic rhinitis, which renders the November 2019 VA medical opinion inadequate in its current form to decide the claim. On remand, new VA medical opinions should be obtained as to the nature and etiology of the allergic rhinitis disability. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to the service-connected lumbar spine disability, is remanded. The Veteran was afforded a VA examination for erectile dysfunction in November 2019. The examiner diagnosed the Veteran with erectile dysfunction, benign prostate hypertrophy (BPH), and prostate cancer. The Veteran indicated the erectile dysfunction had gradual onset around 2007. He was taking Sildenafil, but had difficulty achieving and maintaining an erection. The Veteran also experienced a voiding dysfunction that did not cause urine leakage due to the BPH and prostate cancer status post radiation. The examiner concluded the etiology of the erectile dysfunction was multifactorial, including the non service-connected prostate cancer, status-post radiation, and the BPH with lower urinary tract symptoms. However, the examiner also found that the erectile dysfunction was less likely than not caused by the diagnosed BPH and prostate cancer. This opinion is internally inconsistent and inadequate in its current form to decide the claim. Additionally, the examiner concluded that the Veteran’s service-connected disabilities did not proximately cause the erectile dysfunction because the disabilities were medically unrelated, and there was no objective evidence to support a medical relationship. The examiner also indicated that the cause of the erectile dysfunction was multifactorial, including aging and the non-service connected BPH and prostate cancer. However, the examiner failed to address whether the service-connected low back disability proximately caused or aggravated the erectile dysfunction. Therefore, the VA medical opinion as to secondary service connection is also inadequate in its current form. On remand, new VA medical opinions as to the nature and etiology of the erectile dysfunction should be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Obtain an addendum VA medical opinion from an appropriate clinician to determine the nature and etiology of the headache disability, to include as secondary to the service-connected neck and lumbar spine disabilities. Whether a physical examination of the Veteran is required is left to the discretion of the examiner. After a thorough review of the claims file, the examiner should address the following: a) Provide an opinion as to whether the headache disability had its onset or is otherwise related to service; and b) Provide an opinion as to whether the headache disability was (1) proximately due to/caused by; or (2) is aggravated by the service-connected neck or low back disabilities. All the Veteran’s contentions should be considered and addressed. *The examiner is reminded that the Veteran is competent to report headache pain. 3. Obtain an addendum medical opinion from an appropriate VA clinician to determine the nature and etiology of the allergic rhinitis disability. Whether a physical examination of the Veteran is required is left to the discretion of the examiner. All the Veteran’s contentions should be considered and addressed. After a thorough review of the claims file, the examiner should address the following: a) Provide an opinion as to whether the allergic rhinitis disability had its onset during or is otherwise related to service; and b) Provide an opinion as to whether the Veteran’s allergic rhinitis disability (1) was proximately due to/caused by or (2) is aggravated by the service-connected neck or low back disabilities. 4. Obtain a VA addendum medical opinion from an appropriate VA clinician to determine the nature and etiology of the erectile dysfunction disability, to include as secondary to the lumbar spine disability. Whether a physical examination of the Veteran is required is left to the discretion of the examiner. After a thorough review of the claims file, the examiner should address the following: a) Provide an opinion as to whether the erectile dysfunction had its onset during or is otherwise related to service; and b) Provide an opinion as to whether the Veteran’s erectile dysfunction disability (1) was proximately due to/caused by, or (2) is aggravated by the service-connected low back disabilities. All the Veteran’s contentions should be considered and addressed. *The examiner is reminded that the Veteran is competent to report headache pain. 5. Readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, 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.