Citation Nr: 21009547 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-44 184 DATE: February 22, 2021 ORDER Entitlement to service connection for restrictive lung disease is denied. REMANDED Entitlement to a rating in excess of 30 percent prior to September 4, 2013 for right knee strain with meniscus tear and osteoarthritis is remanded. Entitlement to a rating in excess of 40 percent after September 4, 2013 for right knee strain with meniscus tear and osteoarthritis is remanded. FINDING OF FACT The Veteran does not have restrictive lung disease and has not had any such disorder at any time during the pendency of the claim or recent to the filing of the claim. CONCLUSION OF LAW The criteria for service connection for restrictive lung disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1973 to October 1976. The Veteran appeared at a Board hearing in April 2019; a transcript is of record. The Board remanded these three matters to the AOJ in a January 2020 decision, and they have since been returned to the Board for appellate review. In the remand section of the January 2020 Board decision, it was noted that the issue of service connection for a respiratory disability was not addressed at the Board hearing. The remand thus directed that if the claim for service connection for a respiratory disability was not granted on remand, the Veteran was to be afforded an opportunity for an additional Board hearing. We note that this claim appears to have been initially part of the claim for residuals of broken ribs which had been denied multiple times over the years by VA. However, in June 2018, service connection for residuals, broken ribs with chest injury was granted by the AOJ, while service connection for respiratory condition, including decreased breath sounds, residual of broken rib, remained denied. See June 2018 rating decision and statement of the case (SOC). In a September 2020 Supplemental SOC (SSOC), the AOJ continued to deny service connection for a respiratory disability. In December 2020, the Board sent the Veteran a letter informing him that he was entitled to a Board hearing on that issue. He did not respond within the allotted time and, after a thorough review of the matter, we find it appropriate at this juncture to proceed with this appeal. First, at the BVA hearing, the undersigned acknowledged there was a complicated procedural history and that testimony would be taken regarding what the residuals of the rib injury may entail. Second, the Veteran actually provided testimony at the BVA hearing on his theory of how he has restrictive lung disease due to the rib injury. Finally, we do note that the Veteran is awaiting an in-person hearing at the AOJ level by RO personnel on other issues that are not part of this appeal. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110 (wartime), 1131 (peacetime). In general, to establish a right to compensation for a present disability, a Veteran 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection is also warranted for disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for restrictive lung disease is denied. The Veteran argues that his service-connected rib residuals, broken ribs with chest injury, caused a respiratory disability, specifically restrictive lung disease. The Board remanded this matter in January 2020 in part for examination, given the then current lack of medical records and the fact that the Veteran is service connected for residuals, broken ribs with chest injury (Diagnostic Code 5299-5297). This was granted in the aforementioned June 2018 rating decision, effective from March 2014. The Veteran had long sought to get service connection for the ribs with lung disease as a residual, with the original denial date in 2004. The June 2018 rating decision notes as follows: Although entitlement to service connection for a respiratory condition could not be granted, entitlement to service connection for an in-service fractured rib should have been granted in our decisions dated April 7, 2014 and January 30, 2015 because fractures are considered to be chronic conditions for VA purposes. Therefore we are correcting our previous decision and establishing entitlement to service connection [for residuals, broken ribs with chest injury]. Pertinent to this claim that remains, service connection for restrictive lung disease, the Veteran testified before the undersigned: [W]e were playing combat football with nothing on, and, you know, I received two broken ribs from that, and the residual is, you know, the breath sound has, you know, diminished. You know, the -- there is pain from the front -- from the front of my chest, and it radiates to the back, and it comes usually when -- you know, around 80 degrees or when I, you know, move a little bit too fast, all right, and also the -- what the doctors -- The issue for the Board is thus whether the Veteran has current restrictive lung disease that began during service or is at least as likely as not related to an in-service injury or disease or is proximately due to, aggravated by or the result of a service-connected disease or injury. The Board concludes that the Veteran does not have current restrictive lung disease and has not had any such disorder at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d).   The competent, credible evidence fails to show current disability. Service treatment records (STRs) reflect normal lungs and chest on the September 1976 service separation examination. A January 1977 VA examination includes negative respiratory system examination and a normal chest X-ray. A February 1979 VA examination for the left rib includes findings of no chest pain with deep respiration or compression of the left rib cage. Left rib X-ray showed no abnormality. A November 2004 VA examination reflects no lung abnormalities. Chest X-ray showed no active lung disease. On pulmonary function test (PFT), there was no pulmonary abnormality other than mild restriction mild restrictive defect with positive bronchodilator response (normalizes) and there was normal diffusing capacity. The examiner stated in July 2005 that the PFT findings in 2004 were not residuals of the rib fracture. The examiner stated there were no sustainable findings or residuals of the 8th rib fracture in service, to include no respiratory problems. Likewise, the VA treatment records show no restrictive lung disease diagnosed. It is not listed as an active problem and there are no complaints recorded. Here, VA treatment records which date from 2008 to the present reflect no lung disease. In May 2008 his respiration was noted as regular and unlabored. Lungs were noted as clear to auscultation during physical examination in October 2011. In May 2012, lungs were clear to auscultation and there was no oxygen therapy in use. In August 2014, there were no palpitations or chest pains and lungs were clear to auscultation and percussion. In December 2014, lungs were clear to auscultation and percussion. Pursuant to the January 2020 Board remand, examination was obtained in April 2020. The examiner was asked to provide an opinion regarding whether a respiratory disability is at least as likely as not (50 percent or greater likelihood) due to service or proximately due to, the result of, or aggravated by the service-connected rib disability. The examiner found it was less likely than not due to service or proximately due to, the result of, or aggravated by the service-connected rib disability. The rationale was: The veteran’s respiratory disability is less likely as not due to the result of or aggravated by the service connected rib disability. The veteran had a diagnosis of rib fracture on July of 1975 while on AD. After review of the veteran’s STRS while on AD, there are no chronic ongoing diagnosis, complaints, treatments and or evaluations for difficulties breathing, secondary to residuals of broken ribs with chest injury noted. Also, veteran was evaluated on 1/11/1977 during which he was noted to have no pain during compression of ribs and no pain and or difficulties during deep breathing. Also, the veteran was evaluated on 2/20/1979 where deep inspiration did not produce chest pain nor did compression of the ribs. The Veteran underwent a PFT in 2004, where the PFT noted no pulmonary residuals noted from rib fracture. Hence a nexus has not been established. It was further noted as to aggravation: The veteran’s respiratory disability is less likely as not due to the result of or aggravated beyond its natural progression by the service connected condition. The veteran had a diagnosis of rib fracture on July of 1975 while on AD. After review of the veteran’s STRS while on AD, there are no chronic ongoing diagnosis, complaints, treatments and or evaluations for difficulties breathing, secondary to residuals of broken ribs with chest injury noted. Also, veteran was evaluated on 1/11/1977 during which he was noted to have no pain during compression of ribs and no pain and or difficulties during deep breathing. Also, the veteran was evaluated on 2/20/1979 where deep inspiration did not produce chest pain nor did compression of the ribs. The Veteran underwent a PFT in 2004, where the PFT noted no pulmonary residuals noted from rib fracture. Hence a nexus has not been established. The weight of the competent evidence is against finding current disability due to disease or injury. As discussed above, there is no finding or suggestion of current restrictive lung disease in the treatment or examination record. Due to the absence of proof of a present disability due to disease or injury, there is no valid claim for service connection on any basis. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992). It follows that there must be a recognized disease or injury. The lay opinion of the Veteran is outweighed by the medical records showing no current restrictive lung disease. The Board acknowledges that he indeed may report his perception of symptoms. These were considered by the VA examiner in rendering negative opinion and the finding of no current disability due to disease or injury. Similarly, the VA treatment record contemporaneous to the claim is replete with reference to normal lungs with no complaints. There is simply no probative evidence of current disability due to disease or injury as to restrictive lung disease. In weighing the evidence, the Board finds that the medical evidence of record, and the lack of competent support for a current disability due to disease or injury, or proximately due to or aggravated by service-connected disability, preponderates against the claim. We note the 2020 VA examination which found no chronic ongoing diagnosis, complaints or treatment, is most probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In the alternative, if the 2004 PFT was indicative of disability, there remains no proof that such finding is related to service or a service-connected disease or injury, to include proximate cause to aggravation. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent prior to September 4, 2013 for right knee strain with meniscus tear and osteoarthritis is remanded. 2. Entitlement to a rating in excess of 40 percent after September 4, 2013 for right knee strain with meniscus tear and osteoarthritis is remanded. The Veteran seeks higher and separate ratings for his right knee disabilities on appeal at all times pertinent to the appeal period due to pain, functional limitations and other manifestations. He is currently rated based on arthritis with limited extension under Diagnostic Codes 5010-5261, and has urged that he is entitled to separate compensable ratings to include for limited flexion under DC 5260 as well as consideration of other knee manifestations under DCs 5257 and 5258. See October 2020 and November 2020 written statements from the Veteran. Considering the recent contentions, and noting that the disorder was last examined in September 2013, a new examination is necessary. We note that, pursuant to Correia v. McDonald, 28 Vet. App. 158, 168, the most recent examination does not comply with 38 C.F.R. § 4.59. Moreover, the examiner must provide an opinion and rationale on additional functional loss consistent with the 2017 Court case Sharp v. Shulkin, 29 Vet. App. 26 (2017). The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his right knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, including soliciting a history of Veteran's knee instability and flare-ups. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state the reason. The examiner is requested to address VA examination report of record dated in September 2013 and opine to the extent possible the Veteran's limitation of motion with consideration of painful motion as well as with passive and active motion and with weight bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, to include whether there was an increase in instability or reduction in range of motion during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements, including on range of motion. If it is not possible to provide a specific measurement without speculation, the examiner must state the reason.   Additionally, the examiner should provide similar retrospective estimate opinions about the degree of limitation on motion during flare-ups at the time of changes in the severity, frequency, and duration of flare-ups since July 2009. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.