Citation Nr: 21075898 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-42 305 DATE: December 21, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include unspecified anxiety disorder, is granted. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDINGS OF FACT 1. The Veteran's currently diagnosed unspecified anxiety disorder is likely the result of his active service. 2. The preponderance of the evidence of record fails to establish that the Veteran has or had a diagnosis of COPD at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include unspecified anxiety disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for COPD have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1965 to June 1968. During his period of service, he earned the National Defense Service Medal. On his August 2018 VA Form 9, the Veteran requested a hearing. By September 2021 correspondence, the Veteran was notified that a videoconference hearing had been scheduled for October 2021; however, the Veteran did not appear for the scheduled hearing and has not requested a rescheduled hearing. Therefore, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2020). 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. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran contend that he is entitled to service connection for an acquired psychiatric disorder that is related to his military service With regard to present disability, an opinion associated with the claims file in October 2015 notes a diagnosis of PTSD. Moreover, the Veteran appeared for a VA PTSD examination in September 2019. At that time, the VA examiner determined that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria; however, the examiner diagnosed unspecified anxiety disorder. Thus, the current-disability criterion for service connection is met. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Next, the Board must consider whether the Veteran sustained a disease or injury in service. A review of service treatment records does not reveal any complaints or diagnosis of an acquired psychiatric disability during his military service. However, the Veteran has reported experiencing several traumatic events during service in Saigon. Specifically, the Veteran describes being held at gunpoint by a sergeant upon arriving in Saigon. He and his fellow soldiers were held for a full week prior to someone realizing they did not belong in Saigon. They were ultimately sent on to Thailand. The Veteran also reports hearing gunfire daily that caused him wonder if he would make it out alive. After resolving any reasonable doubt in the Veteran's favor, the Board finds the Veteran's reports to be competent evidence of in-service incurrence, as they are consistent with the places, types, and circumstances of his service. Thus, the second element of service connection is met. The remaining question is whether there is a medical nexus between the Veteran's acquired psychiatric disability and service. As indicated above, a private opinion was associated with the claims file in October 2015. Dr. C. A. R. determined the Veteran's diagnosis of PTSD was related to the stress of being removed from a plane on his way to Thailand under the threat of being shot. The Veteran appeared for a VA PTSD examination in September 2019. The examiner opined that the Veteran's unspecified anxiety disorder was at least as likely as not incurred in or caused by his reported in-service event. In support of the opinion, the examiner determined that the Veteran's experience in Vietnam affected him such that he developed the mild anxiety disorder caused by fear during service. Thus, affording the Veteran the full benefit of the doubt, the Board concludes that the final element of Shedden is also met. 38 U.S.C. § 5107(b). Having established all elements of service connection, the Veteran's claim for service connection for an acquired psychiatric disorder, to include unspecified anxiety disorder, is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for COPD The Veteran contends that he has COPD that is related to service. Here, the medical evidence unequivocally shows that the Veteran has not been diagnosed with COPD at any time during the course of the appeal. See Brammer, supra; McClain, supra; Romanowsky, supra. The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. See Shedden, supra. The VA and private treatment records concurrent with the claim do not show diagnosis of or treatment for COPD nor has the Veteran identified treatment records or other evidence of COPD. The Veteran does not have the medical training needed to diagnose a respiratory disability, such as COPD. Therefore, his assertions are not competent evidence of a current disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Without establishing a current disability, service connection for COPD cannot be granted. Accordingly, the first element of Shedden is not met. Although the Board is sympathetic to the Veteran's claim, the preponderance of the evidence is against the Veteran's claim of service connection for COPD. Therefore, the claim must be denied. 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 of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.