Citation Nr: 21067259 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-19 714 DATE: November 3, 2021 ORDER Service connection for a respiratory disorder, to include a chest wall disorder, is denied. Service connection for loss of skull, including loss of facial bone, is denied. FINDINGS OF FACT 1. The Veteran's current respiratory disorder, diagnosed as chronic obstructive pulmonary disease (COPD) and emphysema, was not demonstrated in or related to an occurrence during active service. 2. The Veteran has not been shown to have a current diagnosis of or residuals from loss of skull, including loss of facial bone, separate and distinct from his service-connected disabilities, at any time since separation from service in June 1974. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory disorder, to include a chest wall disorder, have not been met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for entitlement to service connection for loss of skull, including loss of facial bone, have not been met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1971 to June 1974. In April 2020, the Board remanded the issues of entitlement to service connection for a dental condition for compensation purposes, a respiratory disorder, and loss of skull for additional evidentiary development. The issue of entitlement to service connection for loss of teeth was granted in an October 2020 VA rating decision, which represents a full grant of the benefits sought so it is no longer on appeal before the Board. The remaining issues on appeal have been returned to the Board for appellate review. There was substantial compliance with the April 2020 remand directives for the remaining issues on appeal discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Veteran was provided a VA examination and medical opinion for respiratory conditions in August 2020. The Veteran was also provided VA examinations for ear conditions in August 2020, for traumatic brain injury (TBI) in March 2021 and July 2021, and VA medical opinions for loss of skull in March 2021 and July 2021. These identified VA examination reports and medical opinions are adequate as they were based on a review of the history, examination, and sufficient information was provided to allow the Board to render informed determinations. The examiners provided rationales for the opinions requested. These issues were also readjudicated in an August 2021 supplemental statement of the case (SSOC). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regards to the issues discussed below on the merits. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a respiratory disorder, to include a chest wall disorder In an August 2010 VA Form 21-4138, the Veteran requested service connection for a traumatic chest wall defect. In the December 2013 VA Form 21-0958, the Veteran clarified that his traumatic chest wall defect is a result of the in-service occurrence in July 1972 and that he now has COPD and very poor pulmonary function as a result of the in-service occurrence. The Board has recharacterized the Veteran's initial claim more broadly to a respiratory disorder, to include a chest wall disorder, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Review of VA treatment records since separation from active service in June 1974 shows chest scan results in June 2005 revealed findings consistent with emphysema as well as clinical findings and treatment for COPD since December 2004. Most recently, the August 2020 VA examination report for respiratory conditions shows current diagnoses of COPD, severe emphysema, and benign left lower lobe nodule. As a result, the Board finds the element of a current disability has been met in this case. Review of the Veteran's service treatment records document that at the time of entry to service, the Veteran's respiratory system was deemed as normal on the June 1971 entrance examination report. Clinical evaluation of the respiratory system was also marked as normal in the February 1974 examination report and there was no reported history of respiratory systems noted in the February 1974 report of medical history. The June 1974 statement of medical condition (when examined more than 3 days prior to separation) shows attestation of no change in medical condition. The remainder of the Veteran's service treatment records are silent for complaints of, or treatment for, a respiratory disability. Nevertheless, review of the Veteran's service treatment records document treatment for a maxillary fracture after an alleged assault in July 1972. As a result, the Board finds the element of an in-service occurrence has been met in this case. Next, the Board finds that the most probative evidence of record demonstrates that the Veteran's current respiratory disorder is not related to active service, to include the July 1972 in-service occurrence, but rather more likely related to inhaled insults to the lung over time such as cigarette smoking. Such conclusion was provided in the August 2020 VA medical opinion after examination and review of the claims file. The August 2016 VA examination report for posttraumatic stress disorder (PTSD) documents the Veteran reported he stopped smoking and using marijuana in 2003. Additionally, review of VA treatment records dated in 2017 documents the Veteran is a former smoker (2-3 packs for approximately 40 years and quit in 2003) and records dated in 2019 documents the Veteran smoked 3 packs per day for 30 years and discontinued use in 2003 and that he quit smoking tobacco 15 years ago. Although the Veteran is competent to report observable symptomatology regarding his respiratory system, such as shortness of breath and fatigue, the Board finds he does not have the experience, education, training, and expertise to provide an opinion regarding the etiology of his current respiratory disorder as this would require knowledge of biological processes and pathology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In addition, the record does not show that the Veteran is competent self-diagnose or provide an etiology opinion regarding his current respiratory disorder. See Robinson v. Shinseki, 557 F3.d 1355 (Fed. Cir. 2009). In sum, the Board gives more weight to the August 2020 VA examiner's opinion rendered by a trained medical professional and finds that the third criterion to establish service connection on a direct basis has not been met. See 38 U.S.C. § 1110. Moreover, in light of the onset of diagnosis of a respiratory disorder after separation from service, the Board finds a respiratory disorder did not have onset during service to warrant service connection. See 38 C.F.R. § 3.303(d). The Board also notes that certain chronic diseases will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020). The Board notes that the Veteran has not claimed, and the record does not document, any diagnosis of bronchiectasis, sarcoidosis, or active tuberculosis at any time throughout the appeal period. Accordingly, service connection for a respiratory disorder under the presumptive regulations is not applicable in this case. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for loss of skull, including loss of facial bone In an August 2010 VA Form 21-4138, the Veteran requested service connection for loss of part of skull as a result of the in-service occurrence in July 1972. At the outset, the Board notes that review of the claims file shows that the issues of service connection for residuals of a TBI with vertigo, headaches, and tinnitus were granted in a January 2013 VA rating decision and the issue of service connection for PTSD was granted in an April 2014 VA rating decision. Following the September 2012 VA examination for residuals of TBI, the VA examiner opined that the Veteran's claimed condition for loss of part of skull was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided the following: Veteran's service treatment records show that he had a right facial fracture and reconstruction of the orbit as well as nasal surgery. The skull is made up of the following bones: ethmoid, sphenoid, occipital, paired frontal bones and paired parietal bones. There is no documentation that Veteran had a loss of any part of the ethmoid, sphenoid, occipital, paired parietal bones or of t[h]e paired frontal bones. Following the August 2016 VA DBQ examination for dental conditions, the VA examiner noted that April 1997 radiograph results of the Veteran's skull were normal and facial bones series showed presence of surgical sutures in right infraorbital region suggestive of an old injury and no acute fractures. The VA examiner also noted that August 2016 panographic/intraoral imaging revealed fixation wires in right infraorbital region. At the July 2019 Board hearing, the Veteran reported that part of his skull is still missing, it was "fashioned [by] a piece of plastic [and] wired in place," and that he has symptoms of headaches and dizziness. Review of a September 2019 VA treatment record also showed CT head scan results of mild generalized cortical atrophy. In light of such evidence, the case was remanded and the Veteran was provided VA examinations for ear conditions in August 2020, for TBI in March 2021 and July 2021, and VA medical opinions for loss of skull in March 2021 and July 2021. The August 2020 VA examination report for ear conditions shows diagnoses of benign paroxysmal positional vertigo (BBPV), tinnitus, and bilateral serous ear effusions. The VA examiner explained why she was "unable to say with certainty or more than 50 [percent] likelihood that these issues are recurrent and likely a direct result of physical trauma that was sustained to the face with fracture [and] surgical correction." The VA examination reports for TBI shows diagnoses of TBI, migraines, and vertigo in March 2021 and for acute TBI resolved in July 2021. In the March 2021 VA medical opinion, the VA examiner concluded, in part, the following: The claimed condition (TBI) was at least as likely as not incurred in or caused by the claimed in-service injury (altercation) as the [Veteran] suffered [loss of consciousness] following head injury. Any alteration in mental state at the time of the injury (dazed, disoriented, confused) after a fall or blow to head is considered as one of the definitions of TBI. [The Veteran] did have los[s] of part of his skull. The maxilla is a bone of the skull and [V]et[eran] suffered right maxillary fracture and extensive blow out fracture with extensive loss of bone. This was repaired surgically and a wire was placed. I do not think he has any specific residuals due to the loss of bone, his residual symptoms are likely due to the TBI injury as a whole. In the July 2021 VA medical opinion, the VA examiner concluded, in part, the following: No, the [V]eteran has not lost part of his skull. The [V]eteran had severe damage to one of the facial bones (not cranial bones) of the skull that was surgically successfully repaired with a [right] transantral / transnasal / transorbital reduction done by Dr. [P. in August 1972]. No, there are no residuals from the incident that are separate and distinct from other [service-connected] disabilities. The most probative evidence regarding whether the Veteran has a current diagnosis of or residuals from loss of skull, including loss of facial bone, separate and distinct from his service-connected disabilities, are the March 2021 and July 2021 VA medical opinions. While the March 2021 VA examiner characterized the maxilla as part of the skull and the July 2021 VA examiner made a distinction between the facial (maxilla) and cranial (skull) bones, both VA examiners addressed the July 1972 in-service treatment for maxillary fracture and attributed the Veteran's reported symptomatology as result of this occurrence not separate and distinct from his service-connected disabilities, to include TBI. The Veteran is not a medical professional and is not competent to self- diagnose such a disability or the etiology of his symptomatology. Based on the evidence of record, the Board finds that the record does not contain a current disability to establish that the first criterion to establish service connection on a direct basis has been met. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim."); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The most probative evidence of record reflects the Veteran has not been shown to have a current diagnosis of or residuals from loss of skull, separate and distinct from his service-connected disabilities, at any time since separation from service in June 1974. In fact, as previously noted, the Veteran's service-connected disabilities include PTSD, TBI with vertigo, headaches, and tinnitus. Additionally, the Veteran has not provided a lay description of symptoms, separate and distinct from these service-connected disabilities, that result in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). For these reasons, service connection for loss of skull is denied on a direct basis. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.