Citation Nr: 21001049 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-24 605A DATE: January 6, 2021 ORDER Entitlement to service connection for heart ailment, diagnosed as ischemic heart disease, is denied. Entitlement to service connection for acute respiratory failure secondary to community acquired pneumonia is denied. Entitlement to service connection for chronic obstructive pulmonary disease is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran’s heart ailment, diagnosed as ischemic heart disease, began during active service or is otherwise related to an in-service event, illness, or injury. 2. The preponderance of the evidence of record is against a finding that the Veteran’s acute respiratory failure secondary to community acquired pneumonia began during active service or is otherwise related to an in-service event, illness, or injury. 3. The preponderance of the evidence of record is against a finding that the Veteran’s chronic obstructive pulmonary disease began during active service or is otherwise related to an in-service event, illness, or injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for heart ailment, diagnosed as ischemic heart disease, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for acute respiratory failure secondary to community acquired pneumonia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for chronic obstructive pulmonary disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1946 to May 1949. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pasay City, Republic of the Philippines. The Veteran died in February 2017. The Appellant (the Veteran’s surviving spouse) was substituted as the claimant in a January 2018 decision by the RO. The Board previously remanded this matter in March 2018. 1. Heart Ailment 2. Acute Respiratory Failure Secondary to Community-Acquired Pneumonia 3. Chronic Obstructive Pulmonary Disease Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires competent medical and/or lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including cardiovascular-renal diseases, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptomatology after service if the condition is noted during service (or in a presumptive period) but not shown to be chronic at the time. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1131, 1138 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303(b). In addition, where a Veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for cardiovascular-renal diseases if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). In deciding whether service connection is warranted for a disorder, VA must determine 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 the claim, in which case the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Here, the Board notes that the Veteran was diagnosed with ischemic heart disease, acute respiratory failure secondary to community-acquired pneumonia, and chronic obstructive pulmonary disease in 2014. Nevertheless, as noted below, the Board finds that the Veteran’s conditions are not etiologically linked to his active service. The Veteran was diagnosed with acute respiratory failure secondary to community acquired pneumonia, chronic obstructive pulmonary disease, and ischemic heart disease in March 2014. See March 2014 Medical Certificate from Jesus Nazarene General Hospital. There is no evidence of record that the Veteran was diagnosed or treated for these conditions prior to March 2014, approximately 65 years after the Veteran’s separation from active service. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is also no probative evidence of record indicating that the Veteran had continuous cardiac or respiratory symptoms from within a year of separation from service until the current claim for service connection. As the evidence does not support that the Veteran’s disabilities of heart ailment (diagnosed as ischemic heart disease), acute respiratory failure secondary to community-acquired pneumonia, or chronic obstructive pulmonary disease manifested since within a year of separation from service, service connection for these disabilities on a presumptive basis is denied. 38 C.F.R. §§ 3.307, 3.309. Even where service connection cannot be presumed, however, service connection may still be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Unfortunately, a preponderance of the evidence of record also weighs against finding that the Veteran’s disorders were caused by service. The June 2020 medical opinion finds that the Veteran’s conditions were less likely than not due to his active military service. The examiner reasoned that there was no medical evidence, including in the Veteran’s private medical records, indicating chronicity or continuity of his symptomatology and that the Veteran’s aging caused his conditions, as aging causes changes in the heart and blood vessels that may increase a person’s risk of developing cardiovascular disease and in the structure and function of the lungs that increase susceptibility to chronic obstructive pulmonary disease, and weakening of the immune system that creates a higher risk factor for pneumonia. See June 2020 Medical Opinion. The Board has also considered the Veteran’s and Appellant’s lay statements regarding the onset of his symptomatology. In his June 2016 statement, the Veteran stated that on one occasion in February 1949, he experienced shortness of breath, but did not report any frequent episodes of shortness of breath. He also noted that his wife noticed him gasping and that he experienced chest pain in the 1960s. See June 2016 Statement submitted by Veteran (labeled Correspondence). The Veteran asserted that his gasping and heart condition “have an association with each other.” See id. While the Board acknowledges that the Veteran is competent to report his observable symptoms, the Board finds that the etiology of his claimed disorders falls outside the realm of common knowledge of a lay person and the Veteran is, thus, not competent to provide evidence on the issue of causation. Layno v. Brown, 6 Vet. App. 465, 470-71 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Consequently, the Veteran’s opinion that purports to relate his conditions to active service is not of probative value in this matter. In her statement, the Appellant notes that she first noticed the Veteran’s “chest pain and hypertension” since the two began living together as husband and wife and she observed the Veteran gasping in 1964 “during the first years of our marriage.” See June 2016 Statement Submitted by Appellant (labeled VA Form 21-4138). Again, the Board acknowledges that the Appellant is competent to report her first-hand experiences and observations; however, the etiology of the Veteran’s disabilities falls outside the realm of common knowledge of a lay person and the Appellant is therefore not competent to provide an opinion as to the etiology of the Veteran’s disorders. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno, 6 Vet. App. At 470-71; Jandreau, 492 F.3d at 1376-77. Additionally, the Appellant did not observe the Veteran’s gasping until 1964, approximately 15 years after the Veteran’s separation from military service. See Maxson, 230 F.3d at 1333. The June 2020 opinion in this case had the proper factual foundation and is found to be of great probative value. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). There are no competent and probative medical opinions of record which contradict the June 2020 opinion, and the June 2020 opinion is fully consistent with the other medical evidence of record. While the Board has considered the Veteran’s and Appellant’s lay statements, the Board finds that the reasoned June 2020 opinion is more probative because it was provided by a competent medical professional with specialized knowledge in such matters, and the opinion is consistent with the competent and credible objective evidence of record. Although the Veteran and Appellant are competent to describe the onset and continuity of the Veteran’s observable symptomatology, the ultimate question of etiology in this matter extends beyond immediately observable cause-and-effect relationships and are beyond the competence of a lay witness. Thus, a preponderance of the evidence is against the claim for service connection for heart ailment, chronic obstructive pulmonary disease, and acute respiratory failure secondary to community-acquired pneumonia. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule does not apply and therefore entitlement to service connection is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; Gilbert, 1 Vet. App. At 55. DELYVONNE M. WHITEHEAD 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.