Citation Nr: 21005042 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-11 851 DATE: January 28, 2021 ORDER Service connection for asthma is denied. Service connection for left lung scar is denied. Service connection for lingular pneumonia is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that asthma began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a left lung scar began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence of record is against finding that the Veteran has had lingular pneumonia at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left lung scar have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for lingular pneumonia 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, who is the appellant in this case, had service from September 1972 to September 1975. In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). The Veteran was notified in November 2020 that the Board hearing transcript was unable to be produced due to an audio system malfunction. Pursuant to the instructions of this letter, the appeal will now continue because a request for another Board hearing was not received within the allotted 30-day period. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service Connection 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). 1. Entitlement to service connection for asthma. The Veteran contends that his asthma is related to pneumonia he had during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of asthma, and evidence shows that he was treated for an isolated episode of pneumonia during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of asthma began during service or is otherwise related to an in-service injury, event, or disease. Private treatment records show the Veteran was not diagnosed with asthma until July 2002, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of shortness of breath intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of asthma. The issue is medically complex, as it requires specialized medical education and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the March 2013 VA examiner opined that the Veteran’s asthma is not at least as likely as not related to an in-service injury, event, or disease, including a single treatment for pneumonia. The rationale was the Veteran had an isolated episode of pneumonia during service and fully recovered with no further difficulties during service. The Veteran developed asthma many decades later, which the examiner stated it was “unlikely that one isolated episode of pneumonia many years ago could produce such a profound effect many years later on his pulmonary functions.” The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his asthma is related to an in-service injury, event, or disease. However, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the March 2013 VA examination. After a full review of the record, the weight of the evidence demonstrates that asthma did not have its onset in service and is not otherwise related to service for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for left lung scar. The Veteran asserts that his left lung scar is related to pneumonia he had during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of left lung scar, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. While the Veteran is competent to report that he had pneumonia during service, his Decision Review Officer hearing testimony that his chest x-rays during service showed a left lung scar are largely not credible due to internal inconsistency and inconsistency with other evidence in the record. The October 1972 service treatment record for pneumonia showed the Veteran’s chest x-rays were normal upon discharge from the hospital. A March 1973 chest x-ray that was taken for chest congestion symptoms was also normal. The Veteran’s discharge examination also did not reveal any lung abnormalities. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). A November 1997 private treatment x-ray shows the first evidence in the file for a “suspected” left lung scar, but it could have also been atelectasis or infiltrate according to the private physician. A July 2002 private treatment x-ray found a small region of scarring off the left hemidiaphragm similar to the November 1997 x-ray used for comparison. The lungs were otherwise clear with normal pulmonary vasculatures. While the Veteran believes his left lung scar is related to service, the Board reiterates that the preponderance of the evidence weighs against findings that a left lung scar occurred during service. After a full review of the record, the weight of the evidence demonstrates that a left lung scar was not shown during service, and is not otherwise related to service for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for lingular pneumonia. The Veteran contends that service connection is warranted for the lingular pneumonia he contracted during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of pneumonia and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The March 2013 VA examiner evaluated the Veteran and determined that, while he was treated for pneumonia during service, he did not have a diagnosis of pneumonia. Further, VA and private treatment records do not contain a diagnosis of pneumonia. While the Veteran believes he has a current diagnosis of pneumonia, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education, pathology, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. (Continued on the next page)   After a full review of the record, the weight of the evidence demonstrates that the Veteran does not have a current diagnosis for pneumonia for the reasons discussed above. In the absence of a disability during the appeal period, there can be no claim. Brammer, 3 Vet. App. at 225. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Connally, 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.