Citation Nr: 21074262 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-31 222 DATE: December 14, 2021 ORDER Entitlement to service connection for asthma is granted. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted. Entitlement to service connection for atopic dermatitis is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a left ankle disorder is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include major depression and schizoaffective disorders, is remanded. Entitlement to service connection for a headache disorder, claimed as migraines, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence supports finding that the Veteran's current asthma began during active service. 2. The evidence is at least in equipoise as to whether the Veteran's COPD is secondary to service-connected asthma. 3. The preponderance of the evidence is against finding that atopic dermatitis began during or is otherwise related to active service. 4. The preponderance of the evidence is against finding that hypertension began during or is otherwise related to active service; and there is no evidence of hypertension manifested to a compensable degree within one year following discharge from service. 5. The preponderance of the evidence is against finding that the Veteran has a left ankle disorder that began during or is otherwise related to active service; and there is no evidence of left ankle arthritis manifested to a compensable degree within one year following discharge from service. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma have been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for COPD have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for atopic dermatitis have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 4. The criteria for service connection for hypertension have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for service connection for a left ankle disorder have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1987 to August 1989. In January 2018, the Board remanded the listed issues for additional development, to include attempting to have legible service treatment records scanned and uploaded into the Veterans Benefits Management System (VBMS). The Board acknowledges that this was not accomplished. VA, however, determined that the records were from microfiche and that a rescan would not change the quality of the scanned documents. See Deferred rating dated February 19, 2021. Thereafter, VA notified the Veteran that rescanning would not change the quality and it requested that the Veteran submit any available copies of service treatment or personnel records. On review, the Board finds substantial compliance with the remand directives. Dyment v. West, 13 Vet. App. 141 (1999) (it is substantial compliance with remand orders that is required). In November 2021, following requests for extension, additional evidence was received with a waiver of Regional Office (RO) jurisdiction. 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. §§ 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310(a). Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). The Board acknowledges that the Veteran was not provided VA examinations concerning his claims of service connection for atopic dermatitis, hypertension, and a left ankle disorder. As there is no (1) evidence establishing that an event, injury, or disease occurred in service, or (2) indication that the claimed disorders may be associated with service or with another service-connected disability, the duty to assist by providing an examination is not triggered. McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). The Veteran's own conclusory generalized lay statement that military service caused his current conditions is insufficient to require an examination. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). Entitlement to service connection for asthma and COPD In May 2014, VA denied service connection for asthma and COPD. The Veteran disagreed with the decision and perfected this appeal. In October 2017, the attorney submitted correspondence arguing that the claimed conditions began during service. Available service treatment records do not show any lung abnormalities on enlistment examination in September 1987. In June 1989, the Veteran was placed on a permanent profile for exercise induced reactive airway disease (RAD). In August 1989, the Veteran completed a health questionnaire for dental treatment and reported that he had asthma/hay fever. The Veteran was discharged due to physical disability with severance pay. The claims folder does not contain the Physical Evaluation Board (PEB) report, but the indication is that he was discharged due to RAD. The Veteran underwent a VA respiratory examination in May 2014. He reported shortness of breath while in the service and that it continued following discharge. He was a smoker during service and smoked for a total of 30 years. The examiner opined that the Veteran's asthma and/or COPD was less likely as not incurred in or caused by the exercise-induced RAD shown during service. The examiner stated that review of service records shows this condition existed prior to service. There was no medical evidence after discharge and prior to 2013 of any respiratory condition to suggest chronicity. CT scan from September 2013 showed emphysema. Review of multiple medical literature indicates that emphysema is a type of COPD and the most common cause is cigarette smoking. In support of his claim, the Veteran submitted a May 2017 private report from Dr. H.S. Based on his review of the claims file, review of lay statements from the Veteran's family, and interview with the Veteran, it was his opinion that the Veteran's asthma with COPD more likely than not began in service and continued uninterrupted to this day and was more likely than not permanently aggravated by his smoking history. Dr. H.S. stated it would be impossible to determine to what degree the smoking history contributed to the further development of asthma and COPD. He also opined that the asthma and COPD were comorbid in this Veteran, and thus, it was as likely as not the Veteran's asthma caused and permanently aggravated his COPD. In support of his opinion, the physician submitted various articles discussing the relationship between asthma and COPD. In March 2019, a VA examiner opined that the claimed condition was at least as likely as not incurred in service. In support, she noted that asthma tends to originate in childhood and typically triggered by allergies. She stated that asthma was documented on dental treatment form and he was placed on permanent profile for exercise induced RAD. He exited service and continued to seek treatment for asthma on Albuterol. Enlistment examination did not note lung abnormalities or legible history of asthma pre-existing service and it was likely to have incurred in service. The examiner also noted that smoking is the leading cause of COPD and his COPD is likely due to cigarette smoke. Medical literature does state there can be an overlap however it does not show causation. COPD is with duration of cigarette smoke and is a higher risk factor than any other medical conditions to cause COPD. COPD is not aggravated nor likely a result of his asthma. In a separate opinion, the same examiner opined that the claimed condition which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner, however, provided similar rationale as that set forth in the context of direct service connection. The Veteran underwent additional VA respiratory examination in February 2021. The examiner stated she was unable to delineate symptoms (asthma versus COPD) due to mere speculation as both conditions were due to overlapping symptoms. The examiner opined that after reviewing the record, the Veteran's RAD was less likely than not aggravated by military service. The records do not indicate claimant having any respiratory issue on entry to service. The 1987 entry exam was normal so there cannot be any aggravation from service. The only medical record that supports RAD was after the Veteran was already in the service. The lung disease was most likely caused by 30 plus years of smoking cigarettes. In a March 2021 addendum, the examiner stated that the chest CT indicates the Veteran has emphysema, which is under the umbrella of COPD. She stated that this was less likely than not incurred in or caused by service. Records do not indicate the Veteran had emphysema during service. He is a 30 plus year smoker and smoking is the number one risk factor for the development of emphysema to include COPD. Therefore, the condition was less likely than not incurred in or caused by service. A veteran is presumed sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.§ 1111; 38 C.F.R. § 3.304(b). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it pre-existed service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). The Veteran's enlistment examination does not note RAD or any lung abnormalities and the presumption of soundness is for application. 38 C.F.R. § 3.304(b). There is a two-pronged test for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable (obvious or manifest) evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As discussed, the May 2014 VA examiner indicated that RAD pre-existed service. This appears to be based on a misinterpretation of the service records and on review, there is no clear and unmistakable evidence that RAD pre-existed service. Accordingly, the presumption of soundness has not been rebutted and an in-service element is established. Notwithstanding, the Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. See 38 C.F.R. § 3.303; Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). The Veteran has a current diagnosis of asthma. As set forth, the private opinion indicates that this condition began during service. The VA opinions are somewhat confusing, but review of the accompanying rationales suggests that asthma was at least as likely as not incurred in service. The preponderance of the evidence appears to support the claim and service connection for asthma is granted. See 38 C.F.R. § 3.303. Regarding COPD, there is no evidence that the Veteran was treated for this condition during service or for many years thereafter and the evidence does not support a finding of service incurrence. As concerns secondary service connection, the record contains evidence both for and against the claim. That is, VA examiners relate COPD to the Veteran's extensive smoking history. As a matter of law, VA cannot grant compensation based on a disease caused by in-service smoking. 38 U.S.C. § 1103. The private opinion, however, indicates the asthma caused and aggravated COPD and further states that to what degree the Veteran's smoking contributed to the development of COPD would be impossible to determine. On review, the evidence is at least in equipoise and resolving reasonable doubt in the Veteran's favor, service connection for COPD is granted. See 38 C.F.R. § 3.310. Entitlement to service connection for atopic dermatitis In February 2015, VA denied service connection for atopic dermatitis, claimed as a skin condition. The Veteran disagreed with the decision and perfected this appeal. He generally contends that service connection is warranted for this disorder; however, neither the Veteran nor his attorney have provided specific argument on this issue. Available service treatment records do not show any complaints or findings related to a skin disorder. On a health questionnaire for dental treatment completed in August 1989, the Veteran did not identify any hives or skin rash. Post-service records show treatment for atopic dermatitis. On review, there is no evidence of atopic dermatitis during service or for many years thereafter. The record also does not contain any probative evidence relating the current diagnosis to active service or events therein. The Board has considered the Veteran's general contention, but he has not shown that he has the medical training, experience, or expertise to be competent to diagnose atopic dermatitis or to provide a medical etiology opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran's unsupported lay statements are not sufficient to establish in-service onset or nexus. Even considering a heightened duty to consider the benefit of the doubt given some illegible service records, here the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. The claim is denied. Entitlement to service connection for hypertension In February 2015, VA denied service connection for hypertension. The Veteran disagreed with the decision and perfected this appeal. He generally contends that service connection is warranted for this disorder; however, neither the Veteran nor his attorney have provided specific argument on this issue. Available service records do not show any complaints or findings related to hypertension. On a health questionnaire for dental treatment completed in August 1989, the Veteran did not report high blood pressure. There is no evidence of hypertension manifested to a compensable degree within one year following discharge. Post-service records show treatment for hypertension. On review, there is no evidence of hypertension during service or for many years thereafter. The record also does not contain any probative evidence relating the current diagnosis to active service or events therein. The Board has considered the Veteran's general contention, but he has not shown that he has the medical training, experience, or expertise to be competent to diagnose hypertension or to provide a medical etiology opinion. See Jandreau. The Veteran's unsupported lay statements are not sufficient to establish in-service onset or nexus. Even considering a heightened duty to consider the benefit of the doubt given some illegible service records, the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. The claim is denied. Entitlement to service connection for a left ankle disorder In May 2014, VA denied service connection for a left ankle injury. The Veteran disagreed with the decision and perfected this appeal. In his July 2013 claim, he reported a left ankle injury while stationed at Ft. Ord in 1988. Further details concerning the claimed injury have not been provided. Available service records do not show any complaints or findings related to the left ankle. In March 2020, the Veteran was seen in the VA emergency department with complaints of atraumatic left ankle swelling. Differential diagnosis was cellulitis versus gout. The Veteran is competent to report that he injured his left ankle during service. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Evidence of record, however, does not show any residuals related to same. There is also no evidence of left ankle arthritis manifested to a compensable degree within one year following discharge from service. The Board has considered the Veteran's general contention, but he has not shown that he has the medical training, experience, or expertise to be competent to diagnose residuals of a left ankle injury or to provide a medical etiology opinion. See Jandreau. The Veteran's unsupported lay statements are not sufficient to establish in-service onset or nexus. Even considering a heightened duty to consider the benefit of the doubt given some illegible service records, the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. The claim is denied. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include major depression and schizoaffective disorders In February 2015, VA denied service connection for depression also claimed as a sleep condition. The Veteran disagreed with the decision and perfected this appeal. In January 2018, the Board remanded the issue which it phrased as "entitlement to service connection for an acquired psychiatric disorder(s), to include major depression and schizoaffective disorders." See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran contends that he has an acquired psychiatric disorder related to service and/or service-connected disability. Available service treatment records do not show complaints or findings related to a psychiatric disorder. Evidence of record shows the Veteran underwent extensive psychiatric treatment while incarcerated from approximately 1998 to 2012. Diagnoses included major depression, schizoaffective disorder, PTSD, and pedophilia. These records note the Veteran's report that his 2-month-old daughter died while he was in the military, but they do not indicate a relationship between diagnosed disorders and service. Rather, the records tend to show his trauma experiences and resulting psychiatric issues stem from childhood and prison. In March 2013, the Veteran underwent a psychiatric evaluation in connection with a claim for benefits from the Social Security Administration (SSA). At that time, the Veteran related his trauma to stressors occurring during childhood and incarceration. In June 2017, the Veteran underwent a private psychiatric evaluation conducted by Dr. R.W. The disability benefits questionnaire notes the Veteran presented symptoms of depression and anxiety beginning in service and aggravated by his COPD/asthma. The Veteran confirmed the root cause of his depression and anxiety stems from the military to the present. In the attached narrative report, the examiner ultimately concluded that the Veteran's major depressive disorder more likely than not began in service and is aggravated by his COPD/asthma. The Veteran underwent a VA mental disorders examination in April 2019. Diagnosis was unspecified schizophrenia spectrum disorder and unspecified anxiety disorder. The examiner, who is a psychologist, stated the condition was less likely than not incurred in or caused by service. She discussed evidence in support of the claim, evidence not in support, and evidence that was unclear. She noted that the records were conflicting and contradictory, and a specific opinion was difficult beyond speculation. Therefore, the opinion that the disorders at least as likely as not had their onset in service is unable to be answered without speculation. In April 2021, additional VA opinion was obtained. The examiner, a physician assistant, provided a negative opinion on direct service connection noting that there was no objective evidence to support the opinion that the disorder began during service. In October 2021, the Veteran submitted a statement wherein he indicated that due to childhood abuse, he started acting out in school. His mother took him to a psychiatrist, and he was diagnosed with ADHD and mild depression. He eventually stopped taking medication because he was doing okay on his own. He enlisted and bootcamp went well for him; however, the physical part of service started to wear him down. There was also a lot of prejudice and racism he had to deal with, and the verbal abuse was a lot to take. He indicated that he started hearing voices and thinking someone was there. After service he was dealing with anxiety and other issues which he did not experience before service. In October 2021, the Veteran underwent additional psychiatric evaluation conducted by a private psychologist, Dr. L.C. Diagnoses were listed as unspecified schizophrenia spectrum disorder; major depressive disorder, recurrent, moderate, with anxious distress; and cannabis use disorder in sustained remission. At that time, the Veteran denied psychological treatment both prior to and during military service despite his recent statement indicating treatment during childhood. He reported military stress to include physical demands and verbal abuse from officers and indicated he started hearing voices in service. He also reported that his depressive symptoms were aggravated by COPD and congestive heart failure. The examiner concluded that the Veteran's diagnoses as likely as not started during military service and have continued to date. "Despite a lack of military records reflecting difficulty with psychological functioning, it is as likely as not that his history of traumatic events prior to service served as prodromal stressors to the development of schizophrenia and depression." In support, she referenced multiple medical articles. On review, both private opinions rely heavily on statements submitted by the Veteran's family (that he had no problems prior to enlistment and changed during and following military service) as well as the Veteran's reports that his symptoms began during or otherwise stem from service and his medical problems. The lay statements are not necessarily consistent with the overall evidence of record. For example, while the Veteran states he started having difficulties during service, this is not supported by a review of records made during psychiatric treatment, particularly those during his period of incarceration. Those records repeatedly indicate the Veteran's issues are related to childhood and prison experiences and do not document a history of symptoms beginning during or related to service. Indeed, a core history completed during incarceration indicates that the Veteran's military service was the happiest time in his life. Moreover, the Veteran's own recent statement places the onset of symptoms and treatment prior to service, contradicting his and others' statements to the contrary, and the private opinion. As concerns secondary service connection, the June 2017 opinion does not provide sufficient rationale. For the foregoing reasons, the Board cannot rely on these opinions at this time to adjudicate the appeal. The VA opinions are speculative or not supported by sufficient rationale. Further, they do not address secondary service connection. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate). On review, additional opinion is necessary to adequately address all theories of entitlement. Entitlement to service connection for a headache disorder, claimed as migraines In May 2014, VA denied service connection for migraine headaches. The Veteran disagreed with the decision and perfected this appeal. In support of his claim, the Veteran submitted a disability benefits questionnaire completed by a private physician (Dr. H.S.) in August 2017. The physician stated that based on his interview with the Veteran, review of the claims file, and cited medical literature, it was his opinion that the Veteran's major depressive disorder more likely than not caused his headaches (diagnosed as tension headaches). This issue is inextricably intertwined with the claim of service connection for an acquired psychiatric disorder. Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Thus, it must be deferred pending the completion of the requested development. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a VA psychologist or psychiatrist regarding the etiology of the Veteran's acquired psychiatric disorders. Additional examination is not required unless requested by the examiner. The claims folder must be available for review. The examiner is requested to address the following: (a) Does the Veteran have an acquired psychiatric disorder that at least as likely as not began during or is otherwise related to service? In providing this opinion, the examiner should consider the lay statements from the Veteran's family members as well as his statements regarding onset of symptoms. The extensive records concerning psychiatric treatment during the Veteran's period of incarceration, the March 2013 SSA psychiatric evaluation, VA opinions dated in April 2019 and April 2021, and private opinions dated in June 2017 and October 2021 must also be considered. Please indicate if there is any medical basis to reject the reported history as documented in the private psychiatric evaluations. (b) If the Veteran's acquired psychiatric disorder is not related to service, the examiner should then consider whether it is proximately due to or aggravated by (worsened beyond its natural progression) service-connected asthma and/or COPD. If aggravation is found, the examiner must identify a baseline level of disability. A complete well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), or by a deficiency in the record (additional facts are required) or the examiner (does not have the needed knowledge or training). LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Carsten, 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.