Citation Nr: 21075224 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 21-00 755 DATE: December 17, 2021 ORDER Entitlement to service connection for a respiratory disorder (claimed as lung condition) is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. FINDING OF FACT The Veteran does not have a current respiratory disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1962 to September 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office. This matter has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 1. Service connection for a respiratory disorder The Veteran asserts that he is entitled to service connection for a respiratory disorder because he had pneumonia during service. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Here, service treatment records clearly confirm that the Veteran was diagnosed with bronchitis in October 1962, was hospitalized with pneumonitis in March 1963, and complained of a cough and nasal congestion in October 1963. However, whether the Veteran was treated for respiratory issues during service is not the end of the Board's inquiry. As set forth above, the Veteran must also have a current disability. In the absence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinksi, 2 Vet. App. 141 (1992). Although the Veteran has argued that he suffered from pneumonia during service, the Veteran has not specifically argued that he has a current respiratory disorder. To that end, the Veteran's separation examination did not reflect any symptoms of or diagnoses of any respiratory disorder. Moreover, the Veteran's most recent private and VA treatment records are absent for a diagnosis of or symptoms of a current respiratory disorder either during or immediately prior to the period on appeal. The Board notes that even absent an underlying diagnosis or pathology, respiratory symptoms alone can constitute a disability under VA law where such symptoms result in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, the Veteran's records are devoid of any current complaints of a respiratory disorder, let alone respiratory symptoms that cause functional impairment. The Board acknowledges that the Veteran was treated for respiratory conditions during service. But, as set forth above, in-service injury or disease is just one factor in the test for service connection. Without a current disability, there can be no valid claim for service connection. As the preponderance of the evidence weighs against finding that the Veteran has a current respiratory disorder, his claim for service connection must be denied. REASONS FOR REMAND 2. Entitlement to service connection for a low back disability is remanded. 3. Entitlement to service connection for a right hip disability is remanded. 4. Entitlement to service connection for a left hip disability is remanded. 5. Entitlement to service connection for a right leg disability is remanded. 6. Entitlement to service connection for a left leg disability is remanded. 7. Entitlement to service connection for a right foot disability is remanded. 8. Entitlement to service connection for a left foot disability is remanded. 9. Entitlement to service connection for a right ankle disability is remanded. 10. Entitlement to service connection for a left ankle disability is remanded. Generally, the Veteran asserts that he is entitled to service connection for pain in his low back, hips, legs, ankles, and feet due to injuries sustained during service. More specifically, he contends that his current disabilities are related to jumping out of planes as a paratrooper, including in the Dominican Republic during the Dominican Civil War, during service. Service personnel records reflect that he participated in over 20 parachute jumps, including jumps in the Dominican Republic between June and July 1965. His certificate of discharge confirms that he served as light weapons infantry and received a parachute badge and a medic badge. VA's duties to assist claimants in the development of claims also may include scheduling a medical examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, there is competent evidence of a diagnosed disability or recurrent symptoms of disability. For instance, recent post-service treatment records confirm that the Veteran has been diagnosed with degenerative arthritis and intervertebral disc syndrome in his low back, as well as bilateral hip strain. He also complains of bilateral foot and ankle pain and limitation of motion. Second, the evidence establishes that the Veteran suffered from various injuries during service. His service treatment records describe treatment for paraspinal spasms, ankle injuries, blisters on his feet, and foot pain. Moreover, for combat veterans, as defined under 38 U.S.C. § 1154(b), lay evidence alone can establish that he suffered from an event, injury, or disease during service, if consistent with the circumstances, conditions, or hardships of such service, even if there is no official record. 38 C.F.R. § 3.304(d). This is commonly referred to as the "combat presumption." 38 U.S.C. § 1154(b) does not establish service connection for a combat veteran, but rather aids him in relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). When a veteran has not received a medal indicative of combat, the Board must determine on a case-by-case basis whether he participated in combat with the enemy. VAOPGCPREC 12-99 (Oct. 18, 1999) (combat determination should be made on a case-by-case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). Receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). Here, the Veteran has not received any medals indicative of combat service. However, he has consistently reported that he was stationed in Santo Domingo, Dominican Republic, in 1965 as a combat medic paratrooper, which exposed him to multiple shootings by and of civilians and fellow paratroopers. His personnel records confirm that he received medic training and that he was briefly stationed in the Dominican Republic during the Dominican Civil War. The above reflects that the Veteran engaged in combat during service. This finding that he engaged in combat is significant because it allows him to use "satisfactory lay or other evidence" to establish that he was injured or incurred or aggravated a disability while on active duty, even in cases where there is no official record that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (citing 38 U.S.C. § 1154(b)). Third, the Veteran has consistently argued that he has experienced musculoskeletal pain, which has been treated with Ibuprofen over the years, that is related to his many parachute jumps during service. This suggests that his current musculoskeletal symptoms may be associated with his in-service parachute jumps. Accordingly, the Regional Office arranged for him to undergo VA examinations with respect to his low back and his hips and legs. The Board notes, however, that he has not yet been afforded VA examinations with respect to his feet or ankles. As such, remand is warranted to obtain VA examinations with respect to his claimed feet and ankle disabilities. With respect to the disabilities in his back, hips, and legs, the Board notes that when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). If an examination report is inadequate or does not contain sufficient detail, the Board is required to return the report in a remand. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). Here, medical opinions obtained by VA in connection with these claims are inadequate, and remand is thus necessary. To that end, the VA examiner rendered negative opinions regarding the etiology of his various disabilities. With respect to the low back, the VA examiner stated inaccurately that there were no documented complaints of a back injury during service and that the first documentation of back trouble occurred 50 years following his separation from service. However, the Veteran's service treatment records clearly contain complaints of paraspinal spasms. An opinion based on an inaccurate factual premise is entitled to no probative weight. Reonal v. Brown, 5 Vet. App. 458 (1993). In addition, the VA examiner did not account for the Veteran's combat service or presume that he had injured his low back, hips, or legs during service despite a lack of official documentation. The VA examiner also opined that, although the rigor of military duties and parachute jumps could potentially lead to injuries, service connection could not be established for his disabilities due to a lack of contemporaneous documentation. Essentially, it appears that the VA examiner based his opinions predominantly on a lack of contemporaneous medical records. The Board notes, however, that a lack of contemporaneous medical records alone is not a permissible reason to deny entitlement to service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In certain situations, like this one, lay evidence is sufficient to establish an in-service event or injury occurred despite a lack of official documentation. Moreover, even where the combat presumption does not apply, a lack of contemporaneous medical records is not fatal to a claim for service connection. Savage v. Gober, 10 Vet. App. 488 (1997). Here, the VA examiner failed to address the Veteran's lay statements regarding the continuity of his symptoms since service and did not provide a sufficient rationale to explain why his in-service parachute jumps did not cause his current injuries. As such, the VA examiner's opinions are inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 23 Vet. App. 320 (2007). In sum, remand is necessary to schedule VA examinations with respect to the ankles and feet and to obtain adequate medical opinions regarding the Veteran's low back, hips, and legs. 11. Entitlement to service connection for PTSD is remanded. The Veteran asserts that he has PTSD as a result of in-service stressors. More specifically, he contends that his current PTSD diagnosis is related to witnessing violence and deaths while stationed in Santa Domingo in 1965 as a paratrooper and combat medic. At the outset, the Board notes that VA's duty to assist veterans in developing their claims includes obtaining medical records, including reasonable efforts to obtain relevant private medical treatment records. In October 2020, the Veteran reported to a VA medical provider that he was scheduled to see a non-VA counselor located at 755 South 11th Street in Beaumont, Texas, for his PTSD. However, it does not appear that the Regional Office attempted to assist the Veteran in obtaining these relevant private medical records. On remand, the Regional Office should take steps to identify and obtain these outstanding records. Additionally, remand is necessary to obtain a new VA medical opinion. In an October 2020 VA examination report, a VA examiner opined that the Veteran's symptoms met the diagnostic criteria for PTSD and conceded that he had been exposed to an in-service stressor related to the fear of hostile military or terrorist activity. However, the VA examiner opined that his PTSD was less likely than not incurred in or caused by the fear of hostile military of terrorist activity during service because he did not report any mental health issues during service and there was no ongoing diagnosis or treatment of any mental health issues since his military service. This opinion is inadequate in various respects. First, the Board observes that the Veteran had a long history of post-service alcohol and drug abuse and spent several years in prison for various offenses, including drug-related offenses, prior to being released from prison in June 2020. However, the VA examiner failed to address his post-service history of drug and alcohol abuse in her opinion when she stated that there were no post-service reports of ongoing mental health issues, diagnoses, or treatment. The Board also notes that his prison treatment records are silent with respect to any diagnosis of or treatment for PTSD while he was incarcerated. However, the Veteran has reported to VA that he did not receive adequate medical care in prison and that his medical complaints were ignored. The VA examiner did not address these lay statements in her rationale. Last, the Board reiterates that the Veteran's records are consistent with combat service. However, the VA examiner offered a negative nexus opinion in part due to a lack of official records documenting mental health issues during service. In doing so, the VA examiner impermissibly discounted his lay statements regarding events that occurred during service. Ultimately, the record indicates that a remand is warranted to attempt to obtain the outstanding, relevant private treatment records and to obtain an addendum VA medical opinion regarding the etiology of the Veteran's PTSD. Accordingly, the matters are REMANDED for the following actions: 1. After obtaining appropriate authorization, obtain and associate with the claims file any outstanding VA treatment records and any outstanding, relevant private treatment records. In particular, obtain and associate with the claims file any outstanding counseling records related to the Veteran's PTSD. With respect to private treatment records, the Regional Office must make at least two (2) attempts to obtain records from any identified sources. If these records are unavailable, inform the Veteran and afford him another opportunity to submit any copies in his possession. 2. After the development in step 1 is complete, obtain VA addendum opinions from an appropriate VA examiner in connection with the Veteran's claims for service connection for a low back disability and bilateral hip/leg disabilities. After reviewing the claims file in its entirety, including a copy of this remand, the examiner is asked to do the following: (a.) With respect to the low back disability, opine as to whether it is at least as likely as not (approximately 50 percent or greater probability) that his low back disability had its onset during or is otherwise etiologically related to service, including to parachute jumps during service. (b.) With respect to the low back disability, opine as to whether it is at least as likely as not (approximately 50 percent or greater probability) that his bilateral hip and/or leg disabilities had their onset during or are otherwise etiologically related to service, including to parachute jumps during service. A detailed rationale should accompany all opinions rendered. In doing so, the examiner must address the Veteran's lay contentions regarding the onset and nature of his disabilities. The examiner is reminded that a lack of contemporaneous medical records alone is not a permissible reason to deny entitlement to service connection. 3. After the development in step 1 is complete, arrange for the Veteran to undergo a VA examination with an appropriate VA examiner in connection with the Veteran's claims for service connection for bilateral foot and ankle disabilities. After examining the Veteran and reviewing the claims file in its entirety, including a copy of this remand, the examiner is asked to do the following: (a.) Identify any current disabilities characterized by foot or ankle pain and limitation of motion that have been present during the pendency of this appeal, even if they have since resolved. The examiner is reminded that even absent an underlying diagnosis or pathology, pain alone can constitute a disability under VA law where such pain results in functional impairment. (b.) For each identified foot condition, opine as whether it is at least as likely as not (approximately 50 percent or greater probability) that it had its onset during or is otherwise etiologically related to service, including to parachute jumps during service. (c.) For each identified ankle condition, opine as whether it is at least as likely as not (approximately 50 percent or greater probability) that it had its onset during or is otherwise etiologically related to service, including to parachute jumps during service. A detailed rationale should accompany all opinions rendered. In doing so, the examiner must address the Veteran's lay contentions regarding the onset and nature of his disabilities. The examiner is reminded that a lack of contemporaneous medical records alone is not a permissible reason to deny entitlement to service connection. 4. After the development in step 1 is complete, obtain a VA addendum opinion from an appropriate VA examiner in connection with the Veteran's claim for service connection for PTSD. After reviewing the claims file in its entirety, including a copy of this remand, the examiner is asked to provide an opinion as to whether it is at least as likely as not (approximately 50 percent or greater probability) that his PTSD had its onset during or is otherwise related to service, including combat service. A detailed rationale should accompany all opinions rendered. In doing so, the examiner must address the Veteran's lay contentions regarding the onset and nature of his PTSD. The examiner is reminded that a lack of contemporaneous medical records alone is not a permissible reason to deny entitlement to service connection. E. Choi Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, Associate 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.