Citation Nr: 21002778 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 13-28 668A DATE: January 14, 2021 ORDER Entitlement to service connection for a gastrointestinal disability is granted. Entitlement to service connection for a respiratory disability is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the favor of the Veteran, his gastrointestinal disability is causally related to his active service. 2. The Veteran does not have a current respiratory disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a gastrointestinal disability have been met. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.317 (2019). 2. The criteria for entitlement to service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.317 (2019). REASONS AND BASES FOR FINDING The Veteran had active military service from May 1989 to May 1992, to include service in Southwest Asia. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2018; a transcript of that hearing is associated with the claims file. This case was previously before the Board, most recently in November 2019, at which time the issues currently on appeal were remanded for additional development. The case has been returned to the Board for further appellate action. Service Connection – Gastrointestinal Disability At the outset, the Board notes that it has recharacterized the Veteran’s claim for irritable bowel syndrome (IBS) to gastrointestinal disability to more accurately reflect his symptoms. The Veteran asserts that he has a gastrointestinal disability that is related to his active service. Service treatment records (STRs) show that in November 1990 and August 1991 he complained of vomiting, diarrhea, and abdominal pain. In an August 1992 treatment note, the Veteran reported that he felt like he had to throw up after eating and was diagnosed with gastritis. At that time, it was also noted that the Veteran had an eight-month history of indigestion. In April 2011, the Veteran was afforded a VA general medical examination. At that time, the Veteran reported that he had problems with chronic constipation and occasionally had bowel movements only one to three times per week. The Veteran also reported that he would not have a bowel movement for four to five days approximately two to three times per month. Additionally, the Veteran reported occasional dyspnea both at rest and upon exertion. The VA examiner assessed that the Veteran had constipation and dyspnea. During a November 2015 decision review officer (DRO) hearing, the Veteran stated that he had problems with his stomach in the military prior to his separation, and that he had constipation and blood in his stool. During the April 2018 Board hearing, the Veteran testified that he sometimes went four to five days without a bowel movement, and at other times had massive bowel movements. The Veteran also stated that he had blood in his stool. In January 2020, the Veteran was afforded a VA examination for intestinal conditions and a Gulf War general medical examination. At that time, the Veteran reported that he had symptoms of constipation, stomach pain, and loose stools that began in 1991. However, the VA examiner found that the Veteran had not, at the time of the examination or at any other time, been diagnosed with an intestinal condition. The VA examiner reasoned that the Veteran’s history and physical did not support findings for a diagnosis. The Board finds that the January 2020 VA examinations are inadequate for adjudication purposes. In that regard, the VA examiner failed to consider the Veteran’s lay statements and accurately report, and consider, the medical evidence of record pertaining to the Veteran’s previously diagnosed constipation, dyspnea, and gastritis. Additionally, the Board finds that the Veteran is competent to report when he first experienced symptoms of a gastrointestinal disability and that his symptoms have continued since active service. Heuer v. Brown, 7 Vet. App. 379, 389 (1995); Falzone v. Brown, 8 Vet. App. 398, 403-05 (1995); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). Moreover, the Board finds the Veteran to be credible in that respect. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, as noted above, the Veteran is competent to identify the symptoms of his gastrointestinal disability and the Board finds him credible. In sum, the Veteran experienced symptoms of a gastrointestinal disability during his active service. The Board finds that the Veteran has competently and credibly reported continuing symptoms of a gastrointestinal disability since his active service; and, the Veteran has a current diagnosis of gastritis, constipation, and dyspnea. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a gastrointestinal disability is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 48, 55 (1990). Service Connection – Respiratory Disability The Veteran asserts that his breathing problems are related to his active service. Specifically, the Veteran asserts that during his deployment he was consistently exposed to, and covered with, oil smoke, which caused his respiratory issues. STRs are silent for complaint of, treatment for, or diagnosis of a respiratory disability. The Veteran’s post-service treatment records reveal that in January 1992, he reported difficulty breathing and pressure in his chest. During his March 1993 enlistment examination for the National Guard, the Veteran noted that he had pressure in his chest but no shortness of breath. In September 1993, the Veteran was afforded a VA general medical examination. At that time, the Veteran reported being struck in the sternum during tank accident in Desert Storm. He reported current symptoms of pain and tenderness over upper-mid anterior sternum. Respiratory examination at that time showed a symmetrical chest, and equal and adequate lung expansion. There was no evidence of rales, rhonchi, or wheezing. The Veteran was not diagnosed with a respiratory disability at that time. During a December 2010 primary care annual examination report, it was noted that the Veteran’s computed tomography angiography (CTA) revealed no rales in his lungs. During a June 2013 psychiatric evaluation, the Veteran reported breathing problems. In September 2013, a radiology report revealed that the Veteran had a normal chest. In particular, the radiology report showed no active air space disease, effusion, or mass. In a July 2014 treatment report, the Veteran was noted as reporting a shortness of breath, but was assessed as having good air movement. Subsequently, in October 2014, the Veteran was also assessed as having clear lungs. In January 2020, the Veteran was afforded a VA examination. At that time, the Veteran was assessed as having no current respiratory diagnosis. The VA examiner specifically referenced that the Veteran’s January 2020 radiology report, which revealed a normal chest. Additionally, the Board finds that the preponderance of the evidence does not indicate that the Veteran’s respiratory symptoms result in a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). In that regard, the Board again emphasizes that all the radiology reports of record indicated that the Veteran had a normal chest. Additionally, examinations and assessments of the Veteran’s chest during his routine course of treatment reveal no abnormalities or deficiencies. The Board acknowledges that the Veteran has intermittently reported shortness of breath; however, there is no objective evidence of record, nor has the Veteran otherwise reported, that his shortness of breath produced a functional impairment. While the laypersons are competent to report observable symptoms, the Veteran is not competent to provide a diagnosis of a respiratory disability as that would require medical knowledge, training, and expertise and is simply outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide a diagnosis in this case. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In this case, the Veteran does not have a current diagnosis of a respiratory disability. Additionally, Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. As such, in the absence of proof of a present disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the preponderance of the evidence is against the claim and entitlement to service connection for a respiratory disability is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Byrd, 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.