Citation Nr: A21020280 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 191031-50112 DATE: December 20, 2021 ORDER Service connection for a chronic respiratory disorder is denied. FINDINGS OF FACT 1. The Veteran served on active duty from July 1970 to January 1972, to include service in the Republic of Vietnam; he is currently 100 percent disabled due to prostate cancer. 2. The Veteran was diagnosed with a respiratory disorder in service; the symptoms were not shown to be chronic. A current respiratory disorder, diagnosed as restrictive lung disease, is not causally or etiologically related to service. CONCLUSION OF LAW A chronic respiratory disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION In August 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the record. In August 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), was signed into law. This law created a new framework for veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written under the AMA guidelines. A rating decision was issued under the prior legacy system in October 2018. In December 2018, the Veteran opted into the modernized review system by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in September 2019, which is the decision on appeal. In October 2019, the Veteran appealed the September 2019 HLR decision to the Board and selected the Hearing docket. According to the RAMP opt-in signed by the Veteran, the Board may only consider the evidence of record at the time of the RAMP opt-in, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). However, the AOJ considered evidence outside of the allowed evidentiary window and, in effect, treated the RAMP opt-in as a Supplemental Claim. In this regard, although the Veteran opted into HLR and did not specifically file a Supplemental Claim, the AOJ continued to consider evidence submitted after December 2018, essentially treating the RAMP opt-in as one for a Supplemental Claim. As the consideration of additional evidence can be potentially beneficial for the Veteran, and has in effect been considered by the AOJ, the Board will consider the Veteran's request as a Supplemental Claim. As such, the considered evidentiary window will cover all evidence considered in the September 2019 RAMP rating decision. Even considering the above, additional evidence was added to the claims file during a period of time when new evidence was not allowed (outside of the 90 days post-hearing period). As the Board is deciding the claim of entitlement to service connection for a respiratory disorder, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Specific instructions for filing a Supplemental Claim are included with this decision. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran served in the Republic of Vietnam between January 1962 and May 1975. Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran has a respiratory disease which he asserts is directly linked to service and an episode he had in service as a result of exposure to herbicides. Initially, he was diagnosed with restrictive lung disease in 2019. Thus, a current diagnosis has been shown and the first element of service connection is met. As to an in-service incurrence, the service treatment records (STRs) reflect a two-week period of hospitalization and treatment for bilateral pneumonia, cellulitis, and septicemia. He was discharged from service shortly thereafter. At the November 1971 separation examination, he complained of ongoing shortness of breath and breathing issues. Thus, an in-service incurrence is noted and the second element of service connection is met. As to a medical nexus between in-service pneumonia and current diagnosis of restrictive lung disease, a February 1972 VA examiner noted that the Veteran had staphylococcal septicemia and pneumonia with probable acute bacterial endocarditis. At the time of the examination approximately three months after discharge), the Veteran was relatively symptom free. His chest was normal externally and the lung fields were clear to auscultation and percussion. Diagnoses of staphylococcal pneumonia with recovery except for fibrotic changes in the lungs were noted. There was no imaging attached. At an August 2018 VA examination, after examining the Veteran and reviewing the claims file, the examiner opined it was less likely than not that the Veteran's current respiratory disorder was related to service. The examiner reasoned that recent pulmonary function tests (PFTs) indicated that the Veteran had mixed restrictive and obstructive deficits; however, no specific respiratory diagnoses had been made. The examiner opined that the Veteran's current respiratory findings were more likely a result of chronic tobacco use. In this regard, it was noted that the Veteran was a current smoker who had smoked cigarettes daily for the past several decades. The examiner noted that there was no evidence in the examination or medical records which suggested that the mixed restrictive and obstructive deficits were a result of the breathing ailment experienced during service. Specifically, the examiner noted, pneumonia, a lung infection, was typically not a chronic or lingering condition. In this regard, the Veteran had a remote history of pneumonia which was effectively treated with antibiotics and had resolved. As the Veteran did not have a current diagnosis of pneumonia, it was therefore less likely caused by service. At a March 2019 VA examination, the Veteran was diagnosed with restrictive lung disease, noted to be atelectasis and obstructive lung disease of unknown etiology. The examiner acknowledged and outlined the in-service treatment noting that the Veteran contracted bilateral pneumonia which was caused by MRSA along with septicemia associated with a right shoulder abscess in May 1971. He required intensive medical care with intravenous antibiotics and was treated until August 1971. The examiner opined that it was less likely than not that the Veteran's current disorder was related to service. The examiner noted that the Veteran had currently diagnosed disorders of atelectasis and obstructive lung disease; however, the staphylococcal septicemia and pneumonia both resolved with treatment in 1971. The examiner referred to a Report of Medical Examination completed at a VA hospital in February 1972 which reported that the conditions were resolved at that time without residuals. Importantly, the examiner noted, the Veteran did not experience these disorders at present. The examiner also noted that the February 1972 examination stated that the Veteran had recovered except for "fibrotic changes in the lungs," but omitted the evidence upon which the diagnosis of fibrotic changes was based. This was relevant, the examiner noted since the physical examination findings at that time were documented to be unremarkable. The findings of fibrotic lung changes were likely supported by radiographic evidence; however, there was no radiological study or report attached. The examiner noted that currently, there was no evidence at the examination or in recent chest films that confirmed a diagnosis of fibrotic lung scarring or pleural thickening. Specifically, chest films from April 2018 and May 2019 demonstrated minimally increased opacity at the right lung base, compared to films from 2013, and bilateral costophrenic blunting, respectively. These findings, the examiner noted, were likely the result of atelectasis. Finally, the examiner noted that there was no reference made to lung fibrosis or pleural thickening in available imaging studies and no evidence to suggest current diagnoses of these disorders. The Board finds that the examinations were adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that any relevant fact was misstated. Moreover, the examiners have the requisite medical expertise to render medical opinions regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Further, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiners opinions to be of great probative value. In this regard, the third element of direct service connection has not been shown and it is not established based on the available evidence. Next, to the extent that the Veteran claims that his respiratory disorder is due to exposure to herbicide agents during service, restrictive lung disease is not on the list of presumptive diseases associated with herbicide agent exposure. Specifically, the presumptions relating to herbicide exposure outlined in the regulations are limited to certain disorders which have not been shown by the evidence of record. Therefore, the evidence does not support the presumptive claim based on herbicide exposure. Nonetheless, direct service connection as due to herbicide exposure will still be considered on a direct causation basis; however, no medical professional has established a direct etiological connection between his respiratory disorders and herbicide agent exposure in service. Therefore, the medical evidence does not support service connection on a direct causation basis under Combee. The Board has also considered the Veteran's lay statements that his disorder was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.