Citation Nr: 21065497 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-48 544 DATE: October 26, 2021 ORDER Entitlement to service connection for a breathing related disorder, initially claimed as anxiety, is denied. REMANDED Entitlement to service connection for a left shoulder condition, to include as secondary to service-connected right lumbar myositis, is remanded. Entitlement to service connection for a right shoulder condition, to include as secondary to service-connected right lumbar myositis, is remanded. FINDING OF FACT The evidence of record does not show that the Veteran's has a diagnosed breathing or respiratory disorder at any time during the appeal period and that the symptoms complained of have been compensated for under separately rated disabilities. CONCLUSION OF LAW The criteria to establish service connection for breathing related disorder, initially claimed as anxiety, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1983 to February 1986, February 2003 to June 2004, and May 2006 to June 2006, with additional active duty for training. This matter returns to the Board of Veterans' Appeals (Board) after an October 2020 Board Decision which remanded the matter back to the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ) for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for a breathing related disorder, initially claimed as anxiety, Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). Service connection may only be granted for a current disability. When a claimed condition is not shown, there may be no grant of service connection. Congress specifically limited entitlement for service-connected disease or injury to cases where the incident resulted in a disability. In the absence of proof of a present disability there can be no valid claim. 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran's claim for entitlement to service connection for a breathing related disorder has a long history, which started as a claim for entitlement to service connection for post-traumatic stress disorder (PTSD) and anxiety. See Claim, November 12, 2013. In the cover letter from the Veteran's representative, the claim was stated to be one for entitlement to service connection for anxiety/PTSD direct or secondary to his service-connected lumbar spine condition. See DAV Letter, received by VA November 12, 2013. In the March 2014 VA psychological evaluation provided to the Veteran, the examiner identified a mental disorder diagnosis of breathing related sleep disorder - suspected sleep apnea. However, the examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness as there were no criteria meeting a diagnosis of PTSD or anxiety disorder at the time of that examination. Additionally, the VA examiner stated that the breathing related disorder is not caused by or secondary to the Veteran's service-connected lumbar myositis. In the subsequent March 2014 rating decision, the AOJ denied his claim for entitlement to service connection for breathing related disorder claimed as anxiety, as well as the claim for PTSD. The Veteran filed a timely appeal in May 2014, identifying issues on appeal as "breathing disorder, claimed as anxiety" and PTSD, among others. There was, however, no specific diagnosis for anxiety. The Veteran filed a new claim for entitlement to service connection for PTSD in December 2014, for which he was provided a new VA psychological evaluation for which he was diagnosed with PTSD with components of anxiety and chronic sleep impairment, breathing and/or respiratory problems were not noted. Based in large part on this examination, the Veteran was granted entitlement to service connection for PTSD, at a 30 percent disabling level, effective November 12, 2013, the date of his original claim. As this was not a full grant of the benefits sought, the Veteran continued his appeal to the Board, filing a VA Form 9 on August 31, 2016. However, the Veteran later withdrew his earlier request for a Board hearing. The issues on appeal included, among others, entitlement to service connection for anxiety disorder secondary to his service-connected disabilities and PTSD. In an August 2018 decision, the Board remanded the issue finding the March 2014 VA medical opinion to be inadequate for adjudication purposes as the VA examiner did not support the medical opinion with appropriate supporting rationale. The AOJ was directed to provide the Veteran a VA examination to determine the nature and etiology of his breathing related disorder claimed as anxiety. Then the Veteran filed a September 2018 supplementary claim including, in relevant part, a claim of entitlement to service connection for sleep apnea, as secondary to his exposure to dust, fumes, and burn pits in Iraq. He also included claims for service connection for rhinitis and sinusitis and an increased PTSD rating. The Veteran was provided an October 2018 VA examination related to his sleep apnea in which he was diagnosed with obstructive sleep apnea (OSA), as of March 12, 2018, the date of a VA sleep study. There was no mention of anxiety as either a causative or related factor of this condition. The examiner provided an opinion that his OSA was less likely than not (less than 50 percent likely) due to the environmental hazards from Iraq. In a January 2019 rating decision, the claim for OSA was denied, as was the request for an increased rating for his GERD. His claims for service connection for rhinitis, sinusitis, as well as his claim for a higher rating for PTSD were all deferred. The February 2019 VA examination shows the was diagnosed with allergic rhinitis since 2003, along with "conditions" of frontal sinusitis and rhinitis. There was no indication of a relation between these conditions and his PTSD, anxiety, or right lumbar myositis. No bronchial issues were identified. The Veteran was denied service connection for sinusitis, but it was granted for allergic rhinitis in a March 2019 rating decision. In the March 2019 rating decision, the Veteran's rating for PTSD was increased to 70 percent disabling, based primarily on the findings of his February 2019 VA psychological evaluation, and included components of anxiety and chronic sleep impairment. In this examination, the Veteran's anxiety and sleep problems were noted, but there was no reference to breathing or respiratory problems. The VA respiratory examination of June 27, 2019 noted no diagnosis of a respiratory condition. The Veteran reported allergy symptoms and redness of the eyes as well as recurrent complaints of shortness of breath at night but denied any hospital admission or specific treatment for respiratory conditions. The examiner cited a June 2019 chest x-ray taken 2 days prior, which showed his lungs were clear, he had no cardiopulmonary effusion or pneumothorax, his heart was normal in size, and the impression was no acute cardiopulmonary process. A pulmonary function test (PFT) of that same date indicated normal spirometry and flow volume loops, normal lung volumes, and normal diffusion capacity. He filed a supplemental claim for service connection for sinusitis in April 2019 that was denied in July 2019. The claim for entitlement to service connection for breathing related disorder claimed as anxiety to include as secondary to the service-connected disability of right lumbar myositis (previously rated as lumbar muscle spasm) was denied in a September 2019 rating decision. The Veteran filed his Substantive Appel to the Board, VA Form 9, on September 25, 2019. The Veteran filed a supplemental claim for OSA in December 2019. Along with this supplemental claim, the Veteran provided a November 2019 OSA Disability Benefits Questionnaire (DBQ) prepared by his private medical provider, Dr. R.M, who opined that this OSA is more likely than not caused by his conditions of GERD and allergic rhinitis. He provided a rationale which stated that medical literature supports the nexus between OSA and both GERD and allergic rhinitis. However, there was no diagnosis of any respiratory or breathing condition, other than OSA, identified or associated with the claim. It was not until a February 24, 2020 statement to support his claim that the Veteran clarified that his breathing related disorder is related to his sinusitis and OSA, for which he contends secondary service connection to his allergic rhinitis and GERD. The Board notes that the Veteran has not been granted service connection for sinusitis. The Veteran was granted service connection for OSA as related to his service-connected GERD, at a 50 percent disabling level, in a March 2020 rating decision. Thereafter, the AOJ issued a Supplemental Statement of the Case (SOC) concerning his claims for entitlement to service connection for his right and left shoulders, which were denied. The breathing disorder claim was not part of this SSOC. The appeal was returned to the Board; however, because no SSOC was issued concerning his breathing/respiratory claim, in October 2020 the Board remanded this issue for the AOJ to furnish the Veteran an SSOC. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). An SSOC was furnished, which continued the denial of the claim for a respiratory condition, claimed as anxiety and as secondary to another service-connected disability. Thus, the Board finds that there has been substantial compliance with this part of the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (only "substantial" rather than strict compliance with the Board's remand directives is required under Stegall). The Veteran's medical service treatment records (STRs) contain entries on December 10 and 18, 1985 for an acute period of upper respiratory infection, also stated to be viral syndrome with cold-like symptoms including sore throat and nasal congestion. There were several other entries for sore throat, nasal congestion, and productive cough for which no additional treatment for respiratory problems were noted. His separation physicals do not record entries for respiratory problems. His VA treatment records do not contain any diagnosed respiratory conditions, or treatment. No private medical treatment records were provided which identify a diagnosed respiratory disease. The Veteran is currently service connected for PTSD, which includes components of anxiety and chronic sleep impairment, effective November 12, 2013; OSA, effective September 12, 2018; allergic rhinitis effective, September 12, 2018; and GERD, effective June 24, 2004. Analysis Here there is no diagnosis of a current respiratory disease in the Veteran at any time during the appeal period. See VA Respiratory examination of June 27, 2019. Further, given the claims for PTSD and anxiety which led to the claim for a respiratory condition, the VA has taken considerable effort to identify and clarify the Veteran's condition. Other theories and medical conditions have been fully explored over the long history of this appeal, and the conditions which have been identified in the Veteran have been provided compensable ratings under the appropriate diagnostic codes. His PTSD contemplates components of anxiety and sleep impairment; his OSA contemplates his nighttime breathing issues as asserted by the Veteran, and his OSA was determined to be related to GERD but not his allergic rhinitis. He is not service connected for his sinusitis. Therefore, symptoms associated with anxiety and nighttime breathing disturbance are already contemplated and rated under service-connected disabilities. The evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. See 38 C.F.R. § 4.14. There is no separately diagnosed breathing disorder that is not already contemplated by the diagnoses and ratings already assigned, even when taking into account the Veteran's statements and assertions. In fact, the Board finds that his February 2020 could suggest that, with the grant of service connection for OSA, it is possible that there remains no case or controversy related to this appeal; however, that was not made clear and, in an effort to afford every benefit to the Veteran, the Board determined that the matter should remain on appeal. However, there have also be no further statements from the Veteran since that time. Nevertheless, as there are no other outstanding symptoms that are not already contemplated or accounted for, the appeal must be denied. The Board has considered the Veteran's statements and finds him to be competent to discuss his symptoms and the history related to his claimed conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, h has not been shown to have specialized medical training to render him competent to either diagnose or make a nexus opinion concerning his medical conditions. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Further, his statements given to his medical providers concerning his asserted breathing or respiratory condition, are consistent with the disabilities for which has been provided compensation, including his statements that he has trouble breathing at night, and the lack of respiratory problems raised or complained of during his many years of VA medical treatment. Therefore, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and we find that his statements do not support a separate rating for another respiratory condition. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Therefore, based on the evidence above, the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder condition, to include as secondary to service-connected right lumbar myositis, is remanded. 2. Entitlement to service connection for a right shoulder condition, to include as secondary to service-connected right lumbar myositis, is remanded. In the October 2020 remand, the Board directed the AOJ to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral shoulder condition was (A) caused or (B) aggravated beyond its normal progression by his service-connected right lumbar myositis. Aggravation means an increase in disabilityany additional impairment of earning capacityof the nonservice-connected disability. It was further asked that if aggravation is found, the examiner should attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. The Veteran was provided a new VA examination in August 2021, from which an addendum opinion was prepared. However, based on the reasons discussed below, the Board finds that the AOJ did not substantially comply with the October 2020 Board directives and that further development is still required. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers a right on a claimant to compliance with the remand order). In the August 2021 VA examination, the examiner identified two separate diagnosed conditions in each of the Veteran's bilateral shoulders both left and right to include acromioclavicular joint osteoarthritis (osteoarthritis) and tendinopathy specifically identified as tendinitis. The Veteran's claims for each shoulder disability are that they were caused or aggravated by his service-connected right lumbar myositis. However, in the medical opinion provided, the VA examiner did not address each shoulder disability separately, instead addressing only the "claimed right shoulder condition." See Medical Opinion, Section 4C Rationale. Further, the VA examiner did not provide an adequate rationale to support the opinion given. The VA examiner explained what osteoarthritis and myositis are but did not explain in sufficient detail how those conditions did not have a causative or aggravating relationship. The Veteran's right shoulder tendonitis was not mentioned. The left shoulder was not identified as part of the opinion. On remand the Board requires separate addendum opinions on each of the Veteran's diagnosed shoulder conditions, right shoulder osteoarthritis, right shoulder tendinitis, left shoulder osteoarthritis, and left shoulder tendinitis. And for each to address whether the Veteran's right lumbar myositis (A) caused, or (B) aggravated beyond its normal progression. The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records for the Veteran not already part of the record. Attach copies of this evidence to the Veteran's file. 2. Obtain a new addendum VA medical opinion. If possible, return the matter to the VA examiner who conducted the August 2021 VA examination and prepared the medical opinion. If that examiner is not available, assign the matter to another qualified clinician. The examiner is directed to review the Veteran's entire file in conjunction with authoring the opinions requested herein. Additional examination of the Veteran or diagnostic testing is not required unless indicated by the examiner. After review of the Veteran's file the examiner should address the following: (a.) The examiner should issue a separate addendum medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that each of the Veteran's shoulder diagnosed shoulder conditions, (1) right shoulder osteoarthritis, (2) right shoulder tendinitis, (3) left shoulder osteoarthritis, and (4) left shoulder tendinitis was (A) caused or (B) aggravated beyond its normal progression by his service-connected right lumbar myositis. Aggravation embraces an increase in disability which includes, but is not limited to, any additional impairment of earning capacity of the nonservice-connected disability. The examiner must address each shoulder separately, i.e., would his right lumbar myositis affect his left shoulder equally and in the same manner as his right shoulder? If aggravation is found in either or both shoulders, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. A complete opinion for each issue, either positive or negative, must include rationale that is based on a full history of the Veteran's condition. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bannach 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.