Citation Nr: 20053672 Decision Date: 08/13/20 Archive Date: 08/13/20 DOCKET NO. 15-22 876 DATE: August 13, 2020 ORDER Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease and chronic pneumonia, is denied. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT The preponderance of evidence is against a finding that the Veteran has a current, respiratory disability etiologically related to any incident or injury incurred during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease and chronic pneumonia, have not been met. 38 U.S.C. § §§ 1101, 1110; 38 C.F.R. § §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1984 to February 1987. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In September 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In February 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease and chronic pneumonia Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.30. In order to establish service connection for a claimed disability, there must be (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) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran contends that a current respiratory disability began in- service and continues to present day. The Board finds that the evidence of record does not show that the Veteran has a currently diagnosed chronic respiratory disability related to active duty service. Therefore, as the preponderance of evidence is against a finding that the Veteran has a current chronic respiratory disability related to active duty service, the claim for service connection must be and is denied. The Veteran’s service medical records show that he was seen on numerous occasions in 1985 to 1986 for upper respiratory infections, which were treated and resolved while in-service. The Board notes that the Veteran declined a service separation medical examination on February 11, 1987. During VA respiratory examination in September 2012, the examiner diagnosed the Veteran with COPD. The examiner stated that the Veteran had minimal COPD as evidenced by pulmonary function testing, probably related to 25 pack years of tobacco smoking, stopping in 2000. The examiner explained that there was no evidence of any recurrent pneumonias on record review. The examiner stated that there was no relationship of the Veteran’s reported pneumonias to the very minimal obstructive airways disease and therefore no medical opinion was warranted. The examiner also noted that the Veteran's chest X-ray during the examination was basically clear, without infiltrates and there were no earlier films for comparison. During VA respiratory examination in October 2019, the examiner stated that the Veteran did not now or ever have a diagnosed respiratory condition. Therefore, the examiner found the claimed respiratory condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran reported having recurrent pneumonia since being in service. However, the examiner could not find records diagnosing pneumonia while in service. Records indicated he was diagnosed with an upper respiratory tract infection, which was likely viral and not expected to recur over time. The examiner explained that the Veteran did not have a known immunodeficiency, was not on immunosuppressive therapy, and was not diagnosed with a pathogen that would be permanent. Despite a smoking history, based on November 2019 pulmonary function tests, the Veteran did not have obstructive lung disease or restrictive lung disease, and a chest x-ray was benign. The examiner explained that the report of emphysema on the previous chest x-ray was not diagnostic, and was a subjective impression by the radiologist. The more recent results from the chest x-ray and pulmonary function testing (PFT) did not support a diagnosis of COPD. The examiner stated that the Veteran, essentially, did not have any current respiratory conditions. When looking at the post-service treatment records, X-rays were normal. Service records indicated URI symptoms and treatment. Current PFT and Chest x-ray results did not correlate to a diagnosis. The results were normal. Therefore, there was no pulmonary condition due to lack of objective evidence. In support of the claim, in addition to several written statements, the Veteran also provided testimony before the undersigned Veterans Law Judge during a September 2018 Board hearing. In that hearing, the Veteran discussed what he believed to be the cause of his alleged respiratory condition and the effect it had on his life. The only evidence that provides a link between the Veteran’s service and an alleged respiratory disability comes from the Veteran himself. The Board acknowledges the Veteran’s assertions that a current respiratory disability is the result of his service. The Board has considered the Veteran’s lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the Board finds that the Veteran, as a lay person, is not competent to provide a diagnosis or etiological opinion for complex disabilities such as respiratory conditions. Layno v. Brown, 6 Vet. App. 465 (1994). While the Veteran may state that he experienced fatigue or shortness of breath, he is not competent to provide a diagnosis of a specific disability, or to the etiology of any disability as those issues fall outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That determination must be provided by a medical professional with the proper training, education and experience, in the appropriate fields. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is to be noted that the Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds the October 2019 VA examiner’s opinion to be competent, credible, persuasive, and dispositive of the claim. The October 2019 VA examiner opined that it was less likely than not that the Veteran’s alleged respiratory condition was related to an incident of service. The Board finds the October 2019 VA examiner opinion to be more probative than the lay statements of record. The opinion of the October 2019 VA examiner is highly probative because it is supported by detailed rationale and provided by a trained medical professional. The VA examiner specifically identified and discussed the Veteran’s contentions and theory concerning service and the claimed disability and reconciled his opinion with previous examinations of record. Accordingly, the October 2019 VA examiner VA opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). To the extent that the Veteran’s lay statements are competent and credible, the Board finds that they are outweighed by the October 2019 VA examination opinion because of the examiner’s medical training. The Veteran has not submitted any competent medical evidence which supports a finding that he has a currently diagnosed respiratory disability that is related to service. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim and against a finding that a currently diagnosed respiratory condition was incurred in or related to the Veteran’s honorable active service. The most persuasive evidence of record does not support that contention. The Board is appreciative of the Veteran’s faithful and honorable service to our country. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a respiratory condition, the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a low back disability. VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran contends that a currently diagnosed back disability is the result of service. Specifically, the Veteran asserts a current back disability began during active duty service and continues to this day. During VA examination in October 2019, the examiner diagnosed lumbosacral strain. After review of the claims file and in-person examination, the examiner opined that the claimed low back condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran's history suggested a back strain. No records could be found while in service of a back injury. On examination, the Veteran had some chronic lumbar hypertonicity and straightening of the lumbar lordosis. Records indicated, starting around 2012, that the Veteran associated the back pain with prolonged driving and sitting. On examination, the Veteran described a possible radiculopathy and the chiropractic notes diagnosed radiculopathy. However, there were multiple inconsistencies with that diagnosis. Additionally, there was no objective evidence to confirm radiculopathy, such as an MRI showing impingement, and the nerve conduction studies were reported as negative. Examination findings were also not highly consistent with radiculopathy. Therefore, radiculopathy could not be confirmed. Overall, the Veteran described a strain while in service and that would be expected to resolve. There were no fractures. The rest of the history and medical records suggested back strain over time after service, but the examiner could not say that due to the initial strain while in service that the Veteran had strains after service. The examiner also noted that there appeared to be a gap of over 10 years between separation from service and seeking medical attention for back pain. Therefore, the current back strain was less likely than not related to the back strain that occurred while in service. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the October 2019 VA examination to be incomplete. An opinion that relies only on the absence of symptoms or treatment during service is incomplete. As the October 2019 examiner relied on the absence of chronic symptoms or treatment in-service for the negative opinions concerning the demonstrated disability, the Board finds the October 2019 VA examinations to be inadequate. That is a pre-decisional duty to assist error. Accordingly, the Board again finds the October 2019 VA examination report to be incomplete for rating purposes, and remand is required for additional examination.  The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to treatment for the claimed back disability, including the names and addresses of all health care providers whose records have not already been provided to VA.  On receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record.  If identified records are not obtained, then notify the Veteran.  38 C.F.R. § 3.159(e) 2. Then, schedule the Veteran for a VA examination, with a medical doctor who has not previously examined the Veteran in conjunction with this claim, to determine the nature and etiology of a claimed low back disability. The examiner must review all pertinent records associated with the claims file, including this Remand in its entirety, and indicate review of the file in the examination report. Any studies or tests deemed necessary should be performed. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any back disability is etiologically related to active service or any event, disease, or injury during active service, including whether the disability (1) began during active service, (2) manifested as back arthritis within one year after separation from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner should address the Veteran’s lay statements, including hearing testimony, regarding the back disability and its etiology, and any symptoms during and since service. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.