Citation Nr: 20052978 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 17-58 120 DATE: August 10, 2020 ORDER Entitlement to service connection for a lung disability is denied. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT A lung disability is not related to service, to include exposure to exposure to smoke from burn pits, or to any service-connected disability. CONCLUSION OF LAW The criteria for service connection for a lung disability are not met. 38 U.S.C. §§ 1110, 1117 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1962 to August 1965 and from June 1991 to December 1991. The Veteran had additional periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the National Guard. While status as a “veteran” does not attach to general service in the National Guard, status as a “veteran” attaches to the periods of active duty. The Veteran testified at a March 2020 videoconference hearing before the undersigned Acting Veterans Law Judge. At the Board hearing, the Veteran was notified of the reasons for the denial of his claims by the Agency of Original Jurisdiction (AOJ) and of the evidence necessary to substantiate the claims. A transcript of the hearing has been associated with the record. Entitlement to service connection for a lung disability is denied. The Veteran asserts that he has a lung disability due to his exposure to smoke from burn pits during his active duty service in Southwest Asia. The Veteran’s DD-214 indicates that the Veteran had active duty in Southwest Asia from July 1991 to November 1991. The Veteran has made no assertion regarding secondary service connection. Service connection on a direct basis may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses for Chronic Obstructive Pulmonary Disease (COPD) and chronic bronchitis, the Veteran’s lung disabilities did not begin during service, nor are they otherwise related to an in-service injury, event, or disease, including his exposure to smoke from burn pits during service. The Veteran’s Service Treatment Records (STRs) show that, in March 1981, December 1985, June 1990, June 1991, November 1991, January 1995, August 1999, and July 2002, the Veteran denied any history of, or current, shortness of breath, bronchitis, asthma, wheezing, or chronic cough. He had one complaint in July 1991 in which he reported chest tightness, nasal discharge, and that he was coughing up yellow phlegm for three days. However, the diagnosis was not of a chronic disability, but “Viral syndrome.” Examination of the lungs was normal in March 1981, December 1985, June 1991, November 1991, January 1995, August 1999, and July 2002. VA treatment records show the Veteran was diagnosed with mild obstructive disease in February 2001, more than nine years after separation from his last period of service. The Veteran underwent a VA examination in February 2016. The VA examiner reported that the Veteran was diagnosed with COPD in 2001 and Chronic Bronchitis in 2013. The VA examiner reviewed the Veteran’s medical records and indicated that the Veteran reported shortness of breath intermittently in 2001 and was found to have mild obstructive disease at that time. The February 2016 VA examiner opined that it was less likely than not that the Veteran’s chronic bronchitis and COPD were related to his active duty service including his reported exposure to respiratory contaminants in Southwest Asia. The VA examiner noted that the Veteran worked as a copper smelter for 11 years and at an underground mine for two years, which is a much longer duration of exposure to potentially damaging respiratory inhalants. The VA examiner further noted that, while the Veteran reported that his shortness of breath originated when he was 17 years old when he began his military service; however, he has also reported that he started getting shortness of breath in 1992, which is after active duty service. The Veteran supplied a March 2016 statement from Dr. C.R. The March 2016 statement indicated that the Veteran reported that at age 50, the Veteran developed a cough which was dry and approximately 20 years later had become a daily, productive cough for six months which suggested chronic bronchitis. Dr. C.R. indicated that the Veteran was exposed to “constant oil fires for four months” and that the Veteran wondered whether the exposure was related to his chronic productive cough. While the Veteran is competent to report having experienced symptoms of shortness of breath and coughing, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of COPD or chronic bronchitis. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of a layperson—the Veteran in this case—because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board notes that the Veteran consistently denied shortness of breath during his periods of active duty service and subsequent examinations in the National Guard. These reports are considered more accurate and credible than the report made to the VA examiner (onset at age 17) since the Veteran has provided inconsistent reports as to the age of onset, and because the reports of medical history are supported by normal examinations of the lungs throughout service and during the post active duty service. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009); Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). While Dr. C.R. documented the Veteran’s report that he was exposed to oil fires for four months, Dr. C.R. did not offer an opinion as to whether the Veteran’s exposure to oil fires was at least as likely as not related to his current COPD or bronchitis. Consequently, the only probative opinion in the record as to the etiology of the Veteran’s COPD and chronic bronchitis is that of the February 2016 VA examiner, and direct service connection must be denied. Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, presumptive service connection for a qualifying chronic disability may also be established under the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2021. Id. The Board has also considered whether service connection should be granted under 38 U.S.C. § 1117 but finds that the Veteran does not have an undiagnosed illness under 38 C.F.R. § 3.317. See Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) (“The very essence of an undiagnosed illness is that there is no diagnosis.”); Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004) (stating that a Persian Gulf War veteran’s symptoms “cannot be related to any known clinical diagnosis for compensation to be awarded under section 1117”). Rather, as discussed above, the Veteran has a diagnoses of COPD and chronic bronchitis which are known clinical diagnoses, and which do not constitute medically unexplained chronic multisymptom illness. Thus, presumptive service connection for a lung disability is not warranted under the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. To the extent the Veteran asserts onset of a lung disability during his service in the National Guard, the Board emphasizes the more restrictive requirements applicable to periods of ACDUTRA and INACDUTRA as compared to active duty service. The law applicable to active duty service establishes “veteran” status without further requirements. Moreover, it permits a grant of service connection simply by evidence establishing an etiological relationship between an injury or disease in service and a post-service disability. The law pertaining to periods of ACDUTRA and INACDUTRA requires that the claimant have become disabled “during” the period of ACDUTRA or INACDUTRA in which the injury or disease occurred, and specifically requires that the disease and/or injury have been incurred in the line of duty. Moreover, the claimant bears the burden of establishing that this sequence of events has occurred before “veteran” status is granted for such period. 38 U.S.C. § 101(24). Here, the Veteran has not described onset of a lung disability during a confirmed period of ACDUTRA. As the diagnosed conditions are diseases, not injuries, onset during a period of INACDUTRA is not sufficient. Moreover, the presumption of aggravation (38 U.S.C. § 1153 (West 2014); 38 C.F.R. § 3.306(a) (2019)) and the presumption of service connection for specific chronic diseases (38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309), can never apply to periods of ACDUTRA and INACDUTRA. In light of these findings, the Board concludes that service connection for the claimed lung disability is not warranted. 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 claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to service connection for a low back disability is remanded. The Veteran claims that he has a low back disability which is related to a motor vehicle accident that occurred during his active duty service in approximately 1991. The record indicates that the Veteran has been treated by a chiropractor since approximately 2002. The Veteran testified at the March 2020 hearing that his chiropractor indicated that the Veteran’s current low back disability was related to the 1991 motor vehicle accident. The Board notes that chiropractor’s treatment records are not associated with the claims file. As those records may be relevant to the Veteran’s claim, a remand is required for the RO to attempt to obtain those records. At the March 2020 hearing, the Veteran also indicated that he receives acupuncture treatment that is paid for by VA. It is unclear from the hearing transcript whether the acupuncture treatment is done at a VA facility or whether it is done at a private facility. As these records may be relevant to the Veteran’s claim, the RO should attempt to obtain any private or VA treatment records for the Veteran’s back disability which are not already associated with the claims file. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any physicians or facilities where he sought treatment for his low back disability, to include the Veteran’s chiropractor. Make two requests for the authorized records from any physician or facility authorized by the Veteran, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from February 2016 to the present. LLOYD CRAMP Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, 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.