Citation Nr: 20060751 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 16-15 748A DATE: September 15, 2020 ORDER Entitlement to service connection for a respiratory disability is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disorder (GERD) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a respiratory disability breathing disorder began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a respiratory disability are not met. 38 U.S.C. §§ 1110, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1990 to August 1991 and from July 1992 to July 1993, with an additional period of active duty for training (ADT) from May 1976 to August 1976. The Veteran died in March 2017. The appellant is the Veteran’s surviving spouse and in November 2017 was substituted as the appellant in the claims pending at the time of the Veteran’s death. 38 U.S.C. § 101(3); 38 C.F.R. § 3.1010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020 correspondence, the appellant requested an extension of time to obtain additional records to submit in support of her claim. In a June 2020 response, the Board granted the extension request and allowed an additional 60 days for the submission of evidence. The 60-day period having passed, the Board will proceed to adjudicate the claim on the merits. In May 2020 correspondence, the appellant was notified that her appeal had been certified to the Board, and that she had 90-days in which to change representation if desired. In July 2020 correspondence, the appellant revoked her power of attorney in favor of her attorney, but did not submit another power of attorney form in favor of a new representative. As the prior power of attorney was validly revoked, but no new representative has been appointed, the appellant will be treated as pro se in this matter. 38 C.F.R. § 20.1305(a). The Board most recently remanded the issues on appeal for additional development in June 2019. The requested opinions were obtained in November 2019. As such, the directives have been substantially complied with and the matter is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a respiratory disability. Service connection 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). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multi-symptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). 38 C.F.R. § 3.317. A claimant’s signs or symptoms need not be shown by medical evidence; however, some objective indications of disability are required. 38 C.F.R. § 3.317(a). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Every veteran is presumed to be of sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment or where clear and unmistakable evidence demonstrates the injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); see Cotant v. Principi, 17 Vet. App. 116 (2003). Only such conditions as are recorded in entrance examination reports are considered to be “noted” for purposes of the presumption of soundness. 38 C.F.R. § 3.304(b). When a preexisting disability is not “noted” prior to entry, the VA has the burden to demonstrate, by clear and unmistakable evidence, both that the disorder at issue pre-existed service and that it was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see VA Gen. Coun. Prec. 3-2003 (July 2003). The Veteran asserted that he had a respiratory disability due to service. He stated he had childhood asthma but outgrew it when he was approximately 9 or 10 years old. Many years later, while he was in service, deployed as a part of Operation Desert Storm, his asthma flared back up. He did not use an inhaler throughout his service, until he went to for Operation Desert Storm. There, he drove through the dust as a part of his military occupational specialty. About a month after his return, he started seeking treatment for asthma through the VA and was prescribed an inhaler at that time. See VA 21-4138 Statement in Support of Claim (July 2016). As a preliminary mater, the Board must determine whether there is clear and unmistakable evidence that the Veteran’s breathing disorder pre-existed service. Service treatment records (STRs) show that the Veteran’s lung and chests were noted as normal on a September 1975 enlistment examination and a May 1989 periodic examination, conducted prior to his first period of active service. Prior to his second period of active service, the Veteran reported a history of childhood asthma on an April 1991 report of medical history for redeployment. Unfortunately, his lungs and chest were not evaluated at that time. An October 1993 periodic examination shows that the Veteran reported he smoked a half of a pack of cigarettes daily. This examination effectively served as his separation examination from his second period of active service. He also reported a past medical history of asthma at a July 1995 periodic examination, which was conducted while he was serving in the Louisiana Army National Guard. However, his lungs and chest were noted as clinically normal. Hence, the Board finds that the Veteran was not noted to have a respiratory disability of any kind, including asthma, on any enlistment examination preceding his periods of active service nor at the time of his enlistment in the Louisiana National Guard in September 1975. While the Veteran provided his own history of a pre-existing respiratory disability, a history of preservice existence of a condition is not sufficient to consider the disability as “noted at entry” for the purposes of rebutting the presumption of soundness. 38 C.F.R. § 3.304(b)(1). Instead, the enlistment examinations of record each reflect that at the time of entry into either National Guard or active service the Veteran had no clinical abnormality of the lungs or chest. Further, there is no other evidence indicating that the Veteran’s diagnosed chronic obstructive pulmonary disorder (COPD) otherwise pre-existed his periods of service. Indeed, both the January 2019 and November 2019 VA examiners specifically stated that the Veteran’s childhood asthma was a different disease than the COPD which he developed as an adult, a diagnosis which was confirmed by objective respiratory testing. Therefore, the Veteran is presumed to be sound on enlistment to his periods of active service from October 1990 to August 1991 and from July 1992 to July 1993. As the Veteran has been presumed to have been sound at entry, and there is no evidence that the Veteran’s diagnosed condition of COPD pre-existed his periods of active service, the only question that remains is whether the Veteran’s diagnosed COPD was at least as likely as not related to an in-service injury or disease. As previously mentioned, STRs show the Veteran’s lung and chests were noted as clinically normal on the September 1975 enlistment examination and the May 1989 periodic examination. The Veteran reported a history of childhood asthma on an April 1991 report of medical history, but was not examined. An October 1993 periodic examination conducted at the end of the Veteran’s second period of active service shows that the Veteran reported he smoked a half a pack of cigarettes daily. He also reported a past medical history of asthma at a July 1995 periodic examination, but on examination his lungs and chest were noted to be normal. December 2012 VA records show the Veteran sought treatment for symptoms of cough with production of clear mucous, nasal congestion and shortness of breath with exertion and was diagnosed with COPD. July 2013 VA records showed the Veteran was admitted for emergency urgent care due to COPD, and the clinician noted a history of tobacco abuse. The Veteran reported that he smoked one pack of cigarettes in the two weeks prior and that he had begun to have problems with shortness of breath the day before. February 2017 VA records show the Veteran requested an additional inhaler and reported that he continued to smoke, but rarely. In January 2019, a VA examiner rendered a negative nexus opinion, stating that the Veteran’s asthma clearly and unmistakably preceded service and was less likely than not aggravated beyond its natural progression by service. The rationale was that the record clearly documented a history of childhood asthma/asthma prior to service. As such, the Veteran’s asthma was not secondary to service. A review of the record failed to document any treatment for asthma while in service or thereafter. He further noted that a review of VA clinic notes documented COPD, which is a completely separate obstructive lung disorder distinct from asthma. COPD has irreversible obstruction and is not related to or caused by asthma. The Veteran’s COPD was secondary to prolonged tobacco usage. The respiratory issues that the Veteran had as an adult were secondary to COPD and not asthma. As the Veteran had no asthma as an adult, it was not aggravated by service and clearly did not progress. In June 2019, the Board requested an addendum opinion to address the Veteran’s reports of exposure to dust and irritants during his service in Desert Storm and had to resume using an inhaler one month after returning from his deployment. In compliance with the June 2019 Board remand, the RO obtained an addendum opinion in November 2019. The VA examiner once again rendered a negative nexus opinion. The rationale was that, in adulthood, the Veteran had COPD, but not asthma as confirmed by pulmonary function tests (PFTs). The examiner further stated that the COPD was secondary to tobacco usage, and not exposures to environmental hazards in service. The Board finds the January 2019 and November 2019 VA medical opinions are of high probative value. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The November 2019 VA examiner’s opinion is predicated on the foregoing, in conjunction with the Veteran’s assertions of environmental exposures and his noted tobacco usage. The clinician fully accepted the Veteran’s history and explained the Veteran’s reports of his symptoms in service do not align with how the currently diagnosed disability is known to develop. As such, the Board assigns significant probative value to the November 2019 VA medical opinion. The Board has considered the Veteran’s contentions that his breathing disorder was etiologically related to environmental hazards in service and finds that the Veteran was competent to report his symptoms of breathing disorder. However, the Board finds that he was not competent to opine on the etiology of his symptoms given that he lacks the requisite medical expertise to formulate a medical opinion on whether his breathing disorder had its onset in service or was related to an in-service injury or disease. This is a complex medical determination, involving several variables (such as his use of nicotine products and anatomy), that is beyond the knowledge of a layperson as it requires an understanding of body anatomy, physiology, and the effects of aging on the musculoskeletal system and joints. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Similarly, the Board acknowledges the appellant’s contentions that the Veteran had asthma which was aggravated by his period of service in Southwest Asia. However, the questions of the appropriate diagnosis underlying the Veteran’s reported respiratory issues, as well as the question of the worsening of a disability, are medically complex questions and are beyond the realm of knowledge which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana, 24 Vet. App. 428. As such, the appellant’s assertions that the Veteran was diagnosed with asthma which was aggravated by his service are not competent, and entitled to no probative weight. Jandreau, 492 F.3d 1372. The Board also acknowledges that the Veteran submitted undated medical treatise evidence; an article entitled “recruits, Military Breathe Easier with Relaxed Asthma Accession Standards: U.S. Medicine.” Treatise evidence can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of the specific case, there is at least plausible causality 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); Stadin v. Brown, 8 Vet. App. 280, 284 (1995). However, treatise evidence cannot simply provide speculative generic statements irrelevant to the Veteran’s claim. The Veteran has neither identified nor provided a favorable medical opinion. As such, this article is of no probative value. Given the above, the Board finds the preponderance of the evidence weighs against the claim for service connection. The only probative evidence of record is the November 2019 VA opinion, which stated that the Veteran’s COPD, which was the diagnosis underlying his reported respiratory symptoms, was more likely due to his history of smoking. While the November 2019 opinion linked the Veteran’s COPD to smoking and the evidence of record indicates that the Veteran smoked during active service, service connection for disabilities or deaths resulting from the use of tobacco products in service is barred as a matter of law for claims submitted after June 9, 1998. 38 C.F.R. § 3.300(a). The Veteran’s and appellant’s statements concerning the Veteran’s diagnosis and its etiology are not competent, and there are no other positive medical opinions of record. Based on the foregoing, service connection on a direct basis is not warranted in this case. 38 C.F.R. § 3.102, 3.303. Finally, as discussed above, both the January 2019 and November 2019 VA examiners stated that the disability underlying the Veteran’s reported respiratory problems was COPD, not asthma. While the Veteran served in Southwest Asia during his period of service, as COPD is a disability with a known etiology and pathophysiology, the presumption in favor of Persian Gulf War Veterans is not applicable in this case. 38 C.F.R. § 3.317. The preponderance of the evidence weighs against a finding that the Veteran’s COPD is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND 2. Entitlement to service connection for GERD. In this case, in a September 2013 statement the Veteran asserted his GERD was directly due to service as well as secondary to a psychiatric disability. In a January 2018 rating decision, while the claim for service connection for GERD was still on appeal, VA granted the Veteran’s claim for service connection for PTSD with substance abuse with an evaluation of 70 percent, effective July 23, 2004. To date, no opinion has been obtained as to whether the Veteran’s GERD was caused or aggravated by his service-connected PTSD. As such, a remand is necessary for an addendum opinion concerning secondary service connection. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who provided the November 2019 VA examination, or another appropriate medical professional if the examiner is unavailable. The examiner should answer the following: a) Is it at least as likely as not (a fifty percent probability or greater) that the GERD was caused by the service-connected PTSD? b) If not, is it at least as likely as not (a fifty percent probability or greater) that the GERD was aggravated (worsened) by the PTSD? In rendering an opinion, attention is invited to a December 1997 VA examination for mental disorders indicating that the Veteran had a variety of somatic symptoms, to include stomach cramping and vomiting. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Pendleton, 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.