Citation Nr: 20054591 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 13-22 092 DATE: August 18, 2020 ORDER Service connection for a respiratory disorder is denied. FINDING OF FACT A respiratory disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1970 to May 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in January 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). While the Veteran requested a Board hearing in his July 2013 substantive appeal, he later withdrew such request in November 2016. 38 C.F.R. § 20.704(e). In June 2017 and March 2018, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for a respiratory disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. The Veteran contends he has a respiratory disorder that is directly related to his military service. Specifically, he alleges that he was exposed to CS gas while in a gas chamber during basic training and has had recurrent chest soreness and pain since such time. However, based upon a review of the evidence, the Board finds the preponderance of the evidence is against the claim. As an initial matter, the Board notes that, in March 2018, the Veteran’s appeal was remanded to afford him another VA examination to determine the nature and etiology of his respiratory disorder. Such examination was scheduled for April 2019, but the Veteran called to reschedule it as he missed the examination due to traffic and transportation issues. Thus, the examination was rescheduled for May 2019; however, documentation on file reflects that the Veteran failed to report for such scheduled VA examination, and he has offered good cause for such failure or otherwise requested to have it rescheduled. Specifically, in the August 2019 supplemental statement of the case, the Veteran was advised that he had failed to attend his scheduled examination without good cause. Consequently, he was informed that evidence expected to have been obtained as a result of such examination, which may have been beneficial to his claim, could not be considered. Moreover, the evidence does not suggest, and the Veteran does not contend, that he did not receive notice of the scheduled examination. Baldwin v. West, 13 Vet. App. 1, 6 (1999); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). In this regard, VA regulations provide that, when a claimant fails to report for an examination scheduled in conjunction with original claims, the claims shall be rated based on the evidence of record. 38 C.F.R. § 3.655. As such, the Board will decide the claim based on the evidence of record. In this regard, the Veteran’s service treatment records (STRs) reveal that, in his January 1970 pre-induction Report of Medical History, he reported that he had or was then having pain or pressure in his chest and palpitation or pounding heart. However, upon examination, his lungs and chest were determined to be normal; thus, no defects or diagnoses regarding such reports were noted upon his entrance into service. Additionally, in February 1971, the Veteran had an infection of the upper respiratory that was viral but acute. Nonetheless, his May 1971 separation examination revealed that the Veteran had a normal clinical evaluation of his lungs and chest and a chest X-ray was negative. Additionally, in his contemporaneous May 1971 Report of Medical History, he denied that he had or then was having shortness of breath, chronic cough, or pain or pressure in his chest and the clinician noted that he had no illness during service. Post-service treatment records reveal that the Veteran sought medical treatment for chest pain since the mid-1980s. However, such records indicate that the etiology of his chest pains were unknown or such were attributed to a gastrointestinal and/or musculoskeletal disorder. In May 2001, a letter was received from Dr. R.L., who noted that the Veteran had been her patient for about 16 months and he has had vague chest symptoms, which he attributed to his CS gas exposure during service. However, Dr. R.L. noted that she was not familiar with any symptoms related to such exposure and she informed the Veteran she was unsure if such exposure could be related to his symptoms, but also noted that there had been no medical reason for his chronic problems found to date. A May 2002 letter was also received from Dr. J.R., who noted that he had been treating the Veteran since earlier that same month. The Veteran reported shortness of breath associated with chest pain and again attributed his symptoms to CS gas exposure during his basic training. Dr. J.R. noted that, in March 2001, the Veteran had been evaluated by cardiac catherization, which revealed no significant coronary disease, but a chest x-ray revealed chronic scarring. Dr. J.R. also noted that, in September 2001, the Veteran underwent pulmonary functioning testing (PFT), which revealed a mild restrictive pattern. However, Dr. J.R. also stated that he was not familiar with symptoms related to exposure to CS gas but, to date, a medical reason for the Veteran’s condition has not been found. At a December 2007 VA examination, the examiner found that the Veteran had a diagnosis of chest pain with an unknown cause. He opined that such disorder was not caused by or a result of exposure to tear gas during training. In support thereof, he explained that he was unable to find any association in the literature between CS gas exposure and persistent chest pain/smothering sensation. He also noted that the Veteran appeared to have a component of interstitial lung disease that was not explained by obesity, but he had not been able to find any association in the literature between CS gas exposure and interstitial lung disease. Consequently, the Board denied the Veteran’s claim in a May 2008 decision. In connection with the Veteran’s request to reopen his claim, he underwent another VA examination in November 2011. At such time, the examiner noted a diagnosis of pulmonary fibrosis and opined that such disorder was less likely than not caused by or the result of the Veteran’s active service. However, the Board found that the examiner’s rationale was inadequate. Specifically, the Board noted that, while she provided a detailed statement about the medical literature supporting the finding that “limited exposure” to CS gas during military training did not cause pulmonary fibrosis later in life, she failed to dispute or address any of the literature the Veteran had provided to the contrary. The Board also noted that the examiner appeared to have dismissed the Veteran’s contention that he had more than limited exposure to CS gases during his military training. She also did not address any other respiratory disorders the Veteran may have had other than pulmonary fibrosis. Further, the examiner mistakenly noted that the Veteran’s medical records were silent regarding a pulmonary condition until 2002 and did not discuss the aforementioned letters from Dr. R.L. and Dr. J.R. Accordingly, pursuant to the June 2017 remand, the Veteran was afforded another VA examination in September 2017. At such time, while the examiner acknowledged that exposure to various gases can lead to chronic respiratory problems, he determined that there was no objective evidence of a chronic condition and a nexus has not been established. In support thereof, he explained that radiographic evidence was said not to show a pattern consistent with pulmonary fibrosis or a diagnosis of pulmonary fibrosis. He also reasoned that current PFT was deemed unreliable due to excessive variability indicating poor technique/effort. The examiner also noted that DLCO, which had not been done, may be helpful for further evaluation as such would be difficult for the Veteran to manipulate the results. He further stated that a chest X-ray done in conjunction with the examination did not provide findings conclusive enough to warrant a diagnosis. The Board found that, based on the September 2017 VA examiner’s own admission, the test results conducted were incomplete for the purposes of determining whether a current pulmonary disorder existed. Thus, pursuant to the March 2018, the Veteran was scheduled for a VA examination so as to perform repeat testing, including obtaining a DLCO and further radiographic studies such as a chest X-ray and a chest CT, to determine the nature and etiology of his disorder. However, as discussed above, the Veteran did not attend the scheduled examination; thus, the Board will decide the claim based on the evidence of record. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for a respiratory disorder. In this regard, while the evidence is in conflict whether the Veteran has a current disability regarding such disorder, the evidence of record does not show a nexus between such disorder and his military service. Specifically, his June 1979 separation examination revealed that his lungs and chest were normal upon clinical evaluation and a chest X-ray was negative, and he denied any related symptomatology. Furthermore, the Veteran’s private and VA physicians who treated him after service have not found that his respiratory disorder is related to his military service. In this regard, as noted previously, Drs. R.L. and J.R. both stated that they were unfamiliar with symptoms related to CS gas exposure, and the Veteran has not otherwise identified or submitted a favorable nexus opinion. Furthermore, the VA examiners did not link his claimed respiratory disorder to his military service. Moreover, in regard to the articles the Veteran submitted on the effects and toxicity of CS gas exposure, the Board finds that such articles are not relevant to the matter for consideration as it does not suggest a generic relationship between the Veteran’s respiratory disorder and his military service with a degree of certainty such that, under the facts of this specific case, reflects plausible connection based upon objective facts rather than on an unsubstantiated lay medical opinion. See Wallin v. West, 11 Vet. App. 509, 514 (1998); Sacks v. West, 11 Vet. App. 314, 317 (1998). Furthermore, while the Veteran is competent to report observable symptoms, to include chest pain and shortness of breath, which are within the realm of his personal experience, he is not competent to relate such symptomatology to a diagnosed respiratory disorder, or offer an opinion as to the etiology of such alleged disorder. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Specifically, the Board finds that such is not a simple medical condition the Veteran, as a lay person, is competent to diagnose or determine the etiology thereof. In this regard, such matters fall outside the realm of common knowledge of a lay person as it involves interpretation of results found on an internal physical examination and through diagnostic testing, that cannot be identified by mere personal observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons are not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).The Veteran has not indicated that he has specialized medical training which would enable him to be competent to address such complex medical matters. Accordingly, he is not competent to diagnose a current respiratory disorder, or offer an opinion as the etiology of his chest pain complaints, and his opinion in this regard is of no probative value. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In sum, the Board finds the Veteran’s respiratory disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a respiratory disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.