Citation Nr: 21073470 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-60 504 DATE: December 8, 2021 ORDER Entitlement to service connection for a respiratory disorder is denied. REMANDED Entitlement to a disability rating in excess of 40 percent for neuralgia at T8 of the left intercostal root and degenerative joint and disc disease of the thoracolumbar spine is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's respiratory conditions began during his active service or are otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1970 to May 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision. Pursuant to the Veteran's request, he was scheduled for a hearing in August 2021 but did not attend. Service Connection Respiratory Disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). The Veteran contends that his respiratory conditions are the result of his exposure to chemicals and exhaust fumes during his military service. The question for the Board is whether he 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. A thorough review of the record reflects that the Veteran has current diagnoses of asthma, emphysema, and chronic obstructive pulmonary disease (COPD). Also, the Board accepts his lay reports that during service he was exposed to aircraft exhaust and other chemicals. See DD-214 (which indicates that he had a military operational specialty related to maintenance). However, the preponderance of the evidence weighs against finding that his various respiratory diagnoses began during service or are otherwise related to an in-service injury, event, or disease. The Veteran's treatment records and his own report regarding the onset of his symptoms indicate that he did not experience respiratory problems during service or for many years thereafter. Indeed, his respiratory complaints and diagnoses did not occur until the 2000s, more than 3 decades after his service ended. Further, both the August 2014 and November 2016 VA examinations indicate that the Veteran's respiratory conditions are less likely than not related to his approximately 4 years of military service where he may have been exposed to fumes, exhausts or chemicals, and instead are more likely related to his significant history of smoking. He reported smoking from age 12 to age 64 when he quit after suffering a health crisis related to his lungs and breathing. The examiners' opinions are probative, because they are based on accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The reports make extensive reference to the manner in which smoking was related to the Veteran's conditions and cited supporting literature. The Veteran asserts that service connection for a respiratory disorder should be granted because, although the link between respiratory conditions and smoking is well known, his respiratory conditions may have been caused by other factors, such as chemical exposures. Significantly, however, the medical opinions weighed the relatively brief exposure the Veteran had (or may have had) to exhausts and chemicals related to the operation of aircrafts against the approximately half century of smoking that he has admittedly engaged in and assessed the probability of the etiology of his conditions as being related to smoking rather than to the chemicals and exhausts encountered during service. While the Veteran is competent to report experiencing symptoms that he can observe, he is not competent to opine on the relative likelihood that his respiratory conditions are the result of his service and not his smoking. The issue is medically complex, as it requires knowledge of the effects of contaminants on various organ systems and the assessment of medical literature. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiners' opinions. REASONS FOR REMAND Entitlement to a disability rating in excess of 40 percent for neuralgia at T8 of the left intercostal root and degenerative joint and disc disease of the thoracolumbar spine While the record contains VA examinations regarding the Veteran's lumbar spine condition, the most recent examination is 5 years old and does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. Accordingly, this matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected neuralgia at T8 of the left intercostal root and degenerative joint and disc disease of the thoracolumbar spine. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. After the above development, and any additionally indicated development, has been completed, readjudicate this increased rating issue remaining on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.