Citation Nr: 21003596 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 13-30 146 DATE: January 22, 2021 ORDER Service connection for a respiratory disability is granted. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran is currently diagnosed with COPD. 2. Resolving reasonable doubt in the Veteran’s favor, he has been currently diagnosed with an asthma disability, which had onset during and or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder have been met. 38 U.S.C. §§ 1131; 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1977 to June 1989. The Veteran’s claim has previously been before the Board in February 2016, April 2018, August 2018, March 2020, and July 2020. The RO has substantially complied with the previous Board remand directives, and the claim has now been returned to the Board for further appellate consideration. The Veteran has several other claims that are pending appeal in the modernized appeal system. Those issues will be addressed in separate Board decisions. The United States Court of Appeals for Veterans Claims held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemmons v. Shinseki, 23 Vet. App. 1,5 (2009). Here, the Veteran initially filed a service connection claim for COPD. While a diagnosis of COPD has permeated the Veteran's VA treatment records based on his lay reports, all VA examiners assessing the Veteran's respiratory system have ruled out a diagnosis of COPD and have instead diagnosed the Veteran with asthma. Pursuant to the principles of Clemons, the Board shall broaden and characterize the claim as one seeking service connection for a respiratory disorder, in order to more accurately align the Veteran's claim with the probative VA examinations of record. The Veteran waived a hearing before the Board in his October 2013 substantive appeal, via a VA Form 9. Service connection for a respiratory disability is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Only chronic diseases listed under 38 C.F.R. § 3.309(a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. (2013). Establishing service connection generally requires (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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the absence of proof of a present disability, there necessarily can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). When all the evidence is assembled, VA is responsible for determining 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that his respiratory disability had onset during or was otherwise related to service. During the appellate period, the Veteran’s respiratory disability manifested with symptoms of shortness of breath, fatigue, wheezing, respiratory distress, and occasional chest pain. As an initial matter, the Board finds that the preponderance of the evidence is against the Veteran having a currently diagnosed COPD disability during the appellate period. Nevertheless, the evidence is at least in equipoise that the Veteran has a currently diagnosed respiratory disability, specifically restrictive airway disease or asthma, during the appellate period. To this end, VA and private treatment records indicate the Veteran has been diagnosed and treated for COPD and asthma during the appellate period. The Veteran was afforded a VA examination for the respiratory disability in April 2020. The examiner, a physician, reviewed the claims file, to include service, private, and VA treatment records. The examiner indicated there was insufficient evidence to warrant or confirm a COPD diagnosis. April 2018 and May 2019 chest x-ray studies and May 2019 pulmonary function testing (PFTs) did not support a COPD diagnosis. The examiner reviewed the December 2010 VA medical opinion from the Veteran’s VA treating physician and found that it was simply informational, unenhanced by additional medical comments, and did not constitute competent medical evidence that COPD was present or existed at that time. The examiner noted the Veteran’s August 2017 VA examination report, which indicated the Veteran started smoking at 18 years old and smoked one to one and half packs per day, but he recently decreased his smoking frequency to ½ pack per day. February 2018 and April 2019 chest x-ray studies showed no acute cardiopulmomary process. Another VA opinion was obtained in August 2020 from a different VA examiner. The examiner, a physician, noted that the 2010 PFTs showed reactive airway disease and did not show obstructive airway disease. However, subsequent 2013 and 2019 PFTs were normal. The examiner noted post-service treatment records showed the Veteran had past, intermittent steroid use, which supported a chronic asthma diagnosis. The examiner concluded, based on the above, that the Veteran’s diagnosis in 2010 was asthma. After reviewing the evidence of record, the Board finds the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of COPD. The Board finds that the April and August 2020 VA medical opinions, when read together, are adequate and highly probative that the medical evidence does not support a diagnosis of obstructive airway disease. Nevertheless, the Veteran has a currently diagnosed respiratory disability, specifically asthma, which has manifested with symptoms of shortness of breath, fatigue, wheezing, and occasional chest pain. Therefore, although the evidence is against a finding of a COPD diagnosis, the Board finds that the element of a current diagnosis of asthma, a respiratory disability, has been met. Next, the October 1976 entrance examination was clinically normal for the lungs and chest, and no history of asthma was reported. Service treatment records were silent as to treatment or diagnosis of asthma, or any other chronic respiratory disability, during service. A March 1978 service treatment record indicated the Veteran had dyspnea when exercising with dizziness. The dizziness occurred during two-minute runs, while playing basketball, and while playing tennis. An order for a March 1978 chest x-ray study indicated the reason for the study was that the Veteran was having shortness of breath on exertion. The radiographic report was negative. There was a note that the chest x-ray study was “? Normal, right hilum.” An EKG was within normal limits. The assessment was shortness of breath on exertion. In addition, service treatment records indicate the Veteran had difficulty with hay fever, allergies, and allergic rhinitis throughout service. See, e.g., August 1977, June 1978, September 1980, June 1982, September 1984, April 1985, and January 1988 service treatment records. The Veteran specifically reported a history of shortness of breath, chronic frequent colds, dizziness, and pain or pressure in chest but denied asthma in April 1989. The Veteran was afforded a VA examination for the respiratory disability in July 2010. The examiner opined that the COPD and asthma were not caused by the allergic rhinitis. The opinion concluded that he “was treated for while on active duty but could very well aggravated by his allergic diathesis” (sic). In December 2010, the Veteran’s treating VA physician provided a nexus opinion for the respiratory disabilities. The physician indicated that the Veteran brought a copy of his service treatment records, which the physician reviewed. The VA physician noted that the Veteran had numerous visits for congestion during service, which was coded as allergies. After a review of the Veteran’s service treatment records and physical examination of the Veteran, the Veteran’s VA treating physician concluded that the Veteran had asthma, a reactive airway disease, for many years with onset during service. The assessment was asthma and COPD. As discussed above, the April 2020 VA examiner, a physician, concluded the Veteran did not have COPD. The examiner also concluded that the December 2010 nexus statement from the Veteran’s VA treating physician was simply informational, unenhanced by any additional medical comment, and did not constitute “competent medical evidence” that a condition was present. No further explanation was provided to explain these conclusions. Furthermore, the examiner concluded that, even if the Veteran had COPD, the medical literature on www.uptodate.com clearly identified the most important risk factor for developing COPD was cigarette smoking, with additional risk factors of exposure of passive smoke and biomass fuel. The etiology of the asthma was not addressed. In August 2020, a VA addendum opinion was obtained from a different examiner. The examiner, a physician, noted the Veteran had one single acute episode of dyspnea during exercise which was associated with dizziness. During service, these symptoms were attributed to post viral syndrome. The Veteran served an additional 11 years after this incidence in service, and no chronic respiratory conditions were diagnosed during service. Asthma was first diagnosed in 2010. The 2010 PFTs showed reactive airway disease with response to bronchodilators. The examiner concluded that the Veteran had asthma and not COPD. However, no nexus opinion as to the asthma disability was provided. After reviewing the evidence, both lay and medical, the Board finds that the Veteran has a currently diagnosed respiratory disability that had onset during service. The Board finds that the only adequate and probative medical opinion of records is the August 2010 nexus opinion from the Veteran’s VA treating physician. The Board recognizes that the Court has not fully embraced a “treating physician rule” under which a treating physician’s opinion would presumptively be given greater weight than that of any other examiner. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467, 471-73. Regardless, the length of a medical professional’s opportunity or opportunities to examine a claimant may be considered in assigning probative weight. Id. The December 2010 medical opinion was based on a review of the Veteran’s service treatment records and a physical examination of the Veteran. The December 2010 was provided by the Veteran’s VA treating physician, who considered the Veteran’s contentions and treated the Veteran at that time. Thus, the Board finds the December 2010 medical opinion is the most probative nexus opinion of record. The Board considered the April and August 2020 VA medical opinions; however, neither of the VA examiners offered a nexus opinion as to the asthma disability. Although further development could be undertaken, in this case, it is not necessary because there is already a competent and probative positive nexus opinion of record. In summary, the Veteran has a currently diagnosed respiratory disability, in-service symptoms and treatment of allergies, and a competent and credible medical opinion related the two. Therefore, after resolving any reasonable doubt in favor of the Veteran, service connection for a respiratory disability is granted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, 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.