Citation Nr: 21065027 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-24 868 DATE: October 22, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, is remanded. Entitlement to special monthly compensation based on housebound status or the need for aid and attendance is remanded. FINDING OF FACT The Veteran's COPD did not have its onset in service and is not otherwise the result of a disease or injury incurred in service. CONCLUSION OF LAW The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1131, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1977 to March 1980. A subsequent period of service, from April 1981 to August February 1985, was characterized as dishonorable in a May 2015 administrative decision, and VA benefits based on this later period of service are barred. Service Connection Entitlement to service connection for COPD To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The service treatment records (STRs) from the first period of active service do not show any complaints, treatment, or diagnoses related to COPD. The Veteran had sinus congestion and headaches in March 1978. In May 1978 the Veteran was diagnosed with a cold, with symptoms that included nasal congestion. The Veteran complained in November 1979 of headaches and clogged sinuses when he bent down, and in January 1980 he reported a dry throat and minor sore throat irritation. On a December 1979 medical history report the Veteran reported having had pain or pressure in his chest, and having never had shortness of breath. He did not know if he had ever had a chronic cough. There were no abnormalities of the lungs and chest at a December 1979 examination. On a February 1980 medical history report the Veteran reported never having had asthma, shortness of breath, pain or pressure in his chest, or a chronic cough. At the February 1980 discharge examination, the lungs and chest were normal. There was no diagnosis of any disability related to the chest or breathing during service, including COPD, bronchitis, or asthma. February 2004 VA treatment records state that the Veteran had a recent diagnosis of asthma. November 2004 VA treatment records state that the Veteran had COPD and sometimes had wheezing and difficulty breathing. At June 2005 VA treatment it was noted that the Veteran had emphysema, and the impression was COPD. July 2006 VA treatment records state that the Veteran quit smoking the year before after being told he had COPD/emphysema. Another July 2006 treatment note states that the Veteran began smoking around the age of 15. Subsequent VA treatment records show continued treatment for COPD and do not contain an opinion on etiology. In June 2015 the Veteran wrote that COPD was due to scar tissue on his lungs from the exit physical due to having bronchitis when serving in Europe in the military. The Veteran wrote in April 2017 that during active service he always had bronchitis and pneumonia from sleeping outside in snow and below freezing temperatures. It had gotten worse over the years. The record shows that the Veteran smoked tobacco starting before his first period of active service and continuing until 2005. The law provides that, for claims filed after June 9, 1998, as in the instant case, service connection may not be granted for on the basis that it resulted from disease or injury attributable to the use of tobacco products during active service. See 38 U.S.C. § 1103(a); 38 C.F.R. § 3.300. 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 the 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, 492 F.3d at 1377 (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 Veteran is competent to report that he had symptoms related to bronchitis and pneumonia during service and to report diagnoses of these diseases. However, the Board does not find him credible. The STRs show complaints related to the head such as congestion and headaches. However, there were no complaints or diagnoses related to breathing or the chest at in-service treatment. On a December 1979 medical history report the Veteran reported having had pain or pressure in his chest and not knowing if he had had a chronic cough, but having not ever had shortness of breath. There were no abnormalities of the chest on examination. Furthermore, the Veteran reported having never had asthma, shortness of breath, pain or pressure in his chest, or a chronic cough on the February 1980 medical history report. There were no abnormalities related to the chest at the February 1980 discharge examination. It appears from the record that the pain and pressure in the chest reported in December 1979 was transitory and that there was no in-service diagnosis related to it. The Veteran was not afforded a VA examination on the basis that there is already sufficient medical evidence to decide the claim, and the Board agrees. In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c). The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event. While the Veteran had been diagnosed with COPD, there is no indication that it is related to the first period of service. Therefore, the Board finds that the evidence of record does not trigger the necessity of an examination in order to decide the claim on the merits. See 38 C.F.R. § 3.159(c). While the Veteran has made statements to the effect that he feels that his COPD is related to service, he is not competent to make such a determination, because the question of whether it is related to service is a medical question. His statements on etiology are therefore afforded little, if any, probative value. See Jandreau v. Nicholson, 492 F.3d at 1376-77. There are no competent opinions that the Veteran's COPD is related to service. Because the evidence preponderates against the claim of service connection COPD, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder is remanded. The U.S. Court of Appeals for Veterans Claims (Court) has held that claims for service connection for a mental health disability encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). Therefore, the claim of service connection for bipolar disorder, has been recharacterized as service connection for an acquired psychiatric disability, to include bipolar disorder. The STRs show that on a December 1979 medical history report the Veteran reported having had nervous trouble. Otherwise, there were no complaints, treatment, or diagnoses during service related to an acquired psychiatric disability. At June 2005 VA mental health treatment, it was noted that the Veteran had been diagnosed with depression two years before. The diagnosis was dysthymia and personality disorder, NOS. In June 2015 the Veteran wrote that he believed that bipolar disorder happened in his "early years" when he had discipline problems. He further wrote that he was seen in December 1979 for nervous problems. The Veteran wrote in April 2017 that he had been diagnosed with bipolar disorder due to being in the military. He was scared and nervous all of the time, and looked over his shoulder even when in his own room due to thinking that someone was trying to hurt him. Since the Veteran reported nervous trouble during service and being diagnosed with bipolar disorder due to being in the military, he should be scheduled for a VA examination before the claim is decided on the merits. VA treatment records to February 2017 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from February 2017 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to special monthly compensation based on housebound status or the need for aid and attendance is remanded. The resolution of the claims for service connection for an acquired psychiatric disability, to include bipolar disorder, may impact whether the Veteran satisfies the requirements for special monthly compensation based on housebound status or the need for aid and attendance. As such, the claims are inextricably intertwined and must be considered together, and a decision by the Board on the Veteran's special monthly compensation claim would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). The matters are REMANDED for the following action: 1. Obtain VA treatment records from February 2017 to the present. 2. Schedule the Veteran for a VA examination to assess the nature and etiology of his acquired psychiatric disability, to include bipolar disorder. The claims folder should be made available to the examiner for review in conjunction with the examination. The examiner should state whether the Veteran's acquired psychiatric disability, to include bipolar disorder, at least as likely as not (a 50 percent or higher degree of probability) had an onset during or within one year of the period of active service from July 1977 to March 1980, or is otherwise related to the Veteran's period of active service from July 1977 to March 1980. The examiner may not consider the Veteran's second period of active service, which was from April 1981 to February 1985. The examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. (Continued on the next page) The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, and if necessary, citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, 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.