Citation Nr: 21005593 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-38 998A DATE: February 2, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include pneumonia is denied. Entitlement to service connection for heart disorder (claimed as heart valve replacement) is denied. Entitlement to service connection for diabetes mellitus, type II is denied. Entitlement to service connection for a disability of the right upper extremity is denied. Entitlement to service connection for a disability of the left upper extremity is denied. Entitlement to service connection for a disability of the right lower extremity is denied. Entitlement to service connection for a disability of the left lower extremity is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran does not have a respiratory disorder that was incurred during or as a result of service. 2. The Veteran's heart disorder is not caused or aggravated by service or a service-connected disorder. 3. The Veteran’s diabetes mellitus is not caused or aggravated by service or a service-connected disorder. 4. The Veteran’s disorder of the right upper extremity is not caused or aggravated by service or a service-connected disorder. 5. The Veteran’s disorder of the left upper extremity is not caused or aggravated by service or a service-connected disorder. 6. The Veteran’s disorder of the right lower extremity is not caused or aggravated by service or a service-connected disorder. 7. The Veteran’s disorder of the left lower extremity is not caused or aggravated by service or a service-connected disorder. CONCLUSIONS OF LAW 1. 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. 2. The criteria for service connection for a heart disorder due to service or a service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for diabetes mellitus due to service or a service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for a disorder of the right upper extremity due to service or a service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for a disorder of the left upper extremity due to service or a service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for service connection for a disorder of the right lower extremity due to service or a service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for service connection for a disorder of the left lower extremity due to service or a service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 8. The criteria for entitlement to a TDIU are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from May 1980 to May 1984. He testified at a Board hearing in July 2017. These issues were most recently Remanded in July 2020. They have now been returned to the Board for further appellate review. 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, 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). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for a respiratory disorder, including residuals of pneumonia. The Veteran filed a claim of service connection for a respiratory disorder in July 2014. He stated that he had several respiratory infections during service, and he has had pneumonia, hypertension, diabetes, heart valve replacements, and bilateral upper and lower neuropathies since that time. Service treatment records show that the Veteran was treated for several bouts of upper respiratory infections and tonsillitis during service, and eventually had his tonsils removed. In a February 1984 dental record, the Veteran denied a heart disorder, shortness of breath, asthma, diabetes, and lung disease. Private treatment records contain several diagnoses of bronchitis. The Veteran's claims were denied in a January 2015 rating decision. The Veteran appeared at a Board hearing In July 2017. He testified that he had chronic bronchitis, tonsillitis, and upper respiratory infections in service that led to his currently diagnosed disorders. The Veteran was afforded a VA examination in December 2019. The examiner diagnosed chronic obstructive pulmonary disease and acute bronchitis in September 2010. The VA examiner opined that it was less likely than not that the Veteran has a diagnosis of a respiratory disorder that is incurred in or caused by the pneumonia during service because: There is no documentation in the Veteran's available service treatment records that the Veteran was diagnosed with or treated for pneumonia while the Veteran was in the military. However, there is documentation in the Veteran's service treatment record that the Veteran was diagnosed with pharyngitis, tonsillitis and upper respiratory tract infections. The examiner then noted that pneumonia is a lower respiratory tract infection and that in 2003, the Veteran was diagnosed with Legionnaire’s pneumonia and that pneumonia symptoms generally begin 2 to 10 days after being exposed to the bacteria. In September 2020, the claims file was returned to the VA examiner who provided the December 2019 opinion. The examiner noted that the diagnosis of COPD was based on the December 2019 chest x-ray which the radiologist read as showing hyperaerated chest with COPD. The examiner opined that it is less likely than not that the Veteran's COPD as per the radiologist reading of the Veteran's December 2020 chest x-ray was a least as likely as not due to the Veteran's military service. The examiner provided the following rationale: According to the Veteran's 2507 dated November 18, 2019, the Veteran was on active military duty from May 14, 1980 to May 13, 1984. The Veteran's December 19, 2020 chest x-ray which the radiologist read as showing COPD was done 35 years after the Veteran separated from the military. According to the Mayo Clinic, “main cause of COPD in developed countries is cigarette smoking.” On July 31, 2013, [the Veteran's medical providers] documented that the Veteran “smoked one pack for 20 years and quit smoking 17 years ago on July 29, 1997.” On August 12, 2019, C.L.H., M.D., documented that the Veteran has diabetes, chronic kidney disease, proteinuria, hypertension, hypercholesterolemia with no documentation that the Veteran had a respiratory condition. On June 17, 2020, Veteran had a pulmonary consult with J.P., FNP [whose] assessment was that the Veteran had sleep apnea. According to www.cpap.com, “sleep apnea is considered a sleep disorder as it only affects you during sleep rather than all the time.” There is no documentation in the Veteran's VA problem list that the Veteran has a respiratory disorder. Upon review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a chronic respiratory disorder. Although the record shows that the Veteran had upper respiratory infections and tonsillitis during service, the Board finds the opinions of the VA examiners regarding the lack of an etiology between those events and his current diagnoses to be more probative than the Veteran's lay statements. Specifically, the Veteran's COPD has been noted to be more likely to his history of cigarette smoking and there was no evidence of a relationship to service. Similarly, to the extent the Veteran has sleep apnea, that is not noted to be a respiratory disorder related to his in-service complaints. The Veteran is competent to provide evidence of his observable symptoms, but the Board finds the expert opinions of the VA examiners, which are based on a review of the contemporaneous treatment records and an explanation of the medical literature and principles, to be more probative regarding causation. Therefore, the preponderance of the evidence is against the Veteran's claim of service connection for a respiratory disorder and his claim is denied. 2. Entitlement to service connection for heart disorder (claimed as heart valve replacement) 3. Entitlement to service connection for diabetes mellitus, type II 4. Entitlement to service connection for a disability of the right upper extremity 5. Entitlement to service connection for a disability of the left upper extremity 6. Entitlement to service connection for a disability of the right lower extremity 7. Entitlement to service connection for a disability of the left lower extremity The Veteran contends that he has a heart disability secondary to his respiratory disability. He testified that he has had a heart valve replaced twice – in 2003 and in 2013. Private treatment records contain a diagnosis of aortic valve replacement, status post mitral valve replacement. The Veteran also contends that his diabetes and disabilities of the bilateral upper and lower extremities are secondary to his respiratory disorder. The December 2019 VA examiner opined that the Veteran's heart disability and diabetes were not caused or aggravated by your respiratory disorder. As the Veteran is not entitled to service connection for a respiratory disorder as per the discussion above, service connection may not be granted for a heart disorder, diabetes, or disabilities of the upper and lower extremities on a secondary basis. As the Veteran has not claimed and the evidence does not show direct service connection, there is no basis on which to grant these claims. Therefore, the Veteran's claims are denied.   8. Entitlement to a total disability rating based upon individual unemployability (TDIU) The Veteran is not in receipt of service connection for any disability. Therefore, a claim for a total disability rating based upon individual unemployability due to service-connected disorders must be denied. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shana Z. Siesser, 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.