Citation Nr: 21006584 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 10-24 112 DATE: February 4, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include eosinophilic granuloma is denied. FINDING OF FACT The preponderance of the evidence is against finding that a respiratory disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder are not 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 Navy from November 1994 to March 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran appeared and testified at a videoconference hearing before a Veterans Law Judge (VLJ) who has since retired. That VLJ remanded this matter twice, in November 2017 and June 2018, to obtain medical records and medical opinions regarding this claim. On review, the Board is satisfied that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). As her case was originally heard by a VLJ who then retired, the Veteran was afforded a second videoconference hearing before the undersigned VLJ in December 2020. Transcripts of both hearings are associated with the claim file. Principles of service connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.03. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). To establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Before issuing a decision, the Board must analyze the competency, credibility, and probative value of all evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). There are circumstances where the Board may make findings that lay statements are beyond the competence of the giver, or that the statements are not credible, or the giver of the lay evidence is mistaken. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for a respiratory disorder, to include eosinophilic granuloma The Veteran maintains that her respiratory disorder is etiologically related to her military service, possibly as the result of inhaling chemicals in her duty environment. She has further alleged that her July 2019 and January 2020 VA medical opinions were inadequate. The Board has reviewed the evidence of record and has carefully considered the Veteran’s lay statements and testimony. Unfortunately, the Board finds that the weight of the evidence does not preponderate in favor of the claim. The record clearly establishes that the Veteran has a current respiratory disorder. The Veteran’s May 2008 initial claim described, “breathing problems (spot on lung has been identified).” A few months prior, a CT scan had showed cystic changes in her lungs. In January 2018, she was formally diagnosed with cystic lung disease indicative of lymphangioleiomyomatosis or lymphoid interstitial pneumonia, requiring a lung biopsy to confirm the final diagnosis. In July 2018, a private provider identified the same condition as centrilobular emphysema with chronic granulomatous disease. Her most recent VA medical opinion from January 2020 identified lymphangioleiomyomatosis, lymphoid interstitial pneumonia, or Birt-Hogg-Dube (BHD) syndrome. The Board has examined and considered medical records related to any of these respiratory disorders and diagnoses identified here in making reaching this decision. Accordingly, the Veteran’s appeal turns on whether her respiratory disorder may be attributed to active duty service more than 20 years ago – either by showing it is the result of an injury, a disease, or an event during service. See, e.g., Watson v. Brown, 4 Vet. App. 309, 314 (1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.”). The Veteran’s service treatment records (STRs) do not reflect ongoing respiratory problems during service. She was treated in August 1995 for a viral respiratory infection without extended follow-up. Also in August 1995, after being exposed to lead while on duty, she underwent testing showing her lead levels within normal limits. There are no other complaints related to this claim at or prior to separation in March 1998. In March 2004, 6 years after separation, she was prescribed one month of albuterol for reasons not on record. In November 2006, she underwent a chest CT scan due to wheezing and tightness in her chest. No abnormalities were found, providing some evidence against this claim. A respiratory disorder was discovered in December 2007, when she underwent an abdominal CT scan for an unrelated medical condition. The radiologist incidentally found emphysematous changes in her lungs. This occurred 12 years after service, and a year after unremarkable diagnostic results. The Board observes that the record in this case spans more than a decade, without VA or private providers offering an etiology for the Veteran’s condition related to service. Her STRs reflect testing for lead exposure in July 1995, confirming that she had exposure to that chemical. However, a link between that exposure and her current disorder is not medically established. The Veteran had a February 2019 VA pulmonology consult to discuss the cause of her respiratory disorder. That provider noted her lead exposure, but still found the etiology of her condition unclear without any mention of environmental hazards. In January 2020, a VA medical examiner found current medical literature attributes lymphangioleiomyomatosis and BHD to genetic conditions, and lymphoid interstitial pneumonia to viral triggers. As such, she found the Veteran’s respiratory disorder less likely the result of active service or exposure to hazardous materials during service, providing highly probative evidence against this claim. The Veteran had genetic testing to determine causation scheduled in February 2020, but did not appear for that appointment. As such, there are no records to support in-service incurrence of the condition. The Veteran maintains that her symptoms are related to service. It is clear that the Veteran has been living with a respiratory condition for some time. In June 2017, she testified that providers said her condition was at least 20 years old, implying that it began in 1997 or earlier. There is nothing in the record to support this assertion. The Veteran told a December 2017 VA examiner that symptoms began in approximately 2012. She testified in December 2020 that her breathing problems began in August 1995 and continued after service, leading her to seek treatment in 2000. Throughout the pendency of her appeal, she maintained that exposure to lead and other chemicals in service caused her respiratory disorder. Generally, a Veteran can provide competent reports of factual matters of which she has first-hand knowledge, such reporting to sick call or experiencing problems breathing. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As such, she is competent to report observable symptom onset and treatment history. However, as a lay person, she is not competent to offer an opinion regarding her symptoms and her respiratory disorder, particularly when those symptoms occurred years prior to its diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-33 (Fed. Cir. 2007); see also Davidson, 581 F.3d at 1316. Such an assertion is not a simple question within the realm of knowledge of a layperson or can it be determined based on personal observation by a lay person. Id. Thus, the Veteran's lay assertion that she had symptoms of her respiratory disorder in service is not competent to establish a nexus between her observed symptoms and her current disability. Further and for the same reasons, the Veteran is also not competent to assert that her respiratory disorder was caused by hazardous material exposure in service. In April 2020, the Veteran filed a statement that the VA violated its duty to assist first by failing to provide the Veteran the benefit of the doubt, and by failing to perform a lung biopsy to, hopefully, offer a final diagnosis for her respiratory disorder. First – as a rule – the Board does not remand a case for an invasive procedure to be performed on a Veteran. A lung biopsy is a surgical procedure performed under general anesthesia. The Board will not remand a case for such a procedure to be performed on a Veteran under any circumstances. Further, there is no indication on record that a further diagnosis would change the outcome of this case. The record reflects that her condition is more likely than not related to genetic or viral factors than chemical exposures. Notably, the Veteran’s private provider and the VA pulmonologist unrelated to claim adjudication have not offered any contrary theories. Second, the Board notes that the benefit of the doubt rule applies where there is evidentiary equipoise – essentially, where the evidence is balanced on a given issue, the tie goes to the claimant. Unfortunately, the evidence is not balanced in this case. Although the first element for service connection is satisfied, the record does not reflect an in-service incurrence or aggravation of the disease, nor is there a causal nexus between the current respiratory disorder and service. Although the Veteran has offered credible testimony regarding her experiences, there is contrary, objective, medical evidence on record establishing a diagnosis more than ten years after service, etiologically unrelated to service. As such, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Both the service treatment records, post-service treatment records, and the best medical evidence in this case each provide evidence against this claim that the Board can not ignore. Finally, the Veteran maintains that her January 2020 VA medical opinion failed to address aggravation of her condition in service and the presumption of soundness. In this context, aggravation and the presumption of soundness both apply only when a disability might preexist service. See 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. §§ 3.303, 3.304(b); Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). There is no indication on record, and the Veteran has not alleged, that her respiratory disorder pre-existed service. As such, aggravation and the presumption of soundness are immaterial and there was no justification for the VA examiner to discuss either issue. The Board does not consider the January 2020 VA medical opinion inadequate for failure to address legal concepts immaterial to the claim. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for a respiratory disorder and her appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.