Citation Nr: 21011210 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-34 538A DATE: March 1, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include chronic colds as due to exposure to asbestos, red clay dust, and/or residuals of malaria, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a respiratory disorder due to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to January 1972. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. This case was before the Board in March 2018 and March 2020. The Veteran’s claim was remanded for additional development. The case is now again before the Board for further appellate action. Entitlement to service connection for a respiratory disorder, to include chronic colds as due to exposure to asbestos, red clay dust, and/or residuals of malaria, is denied. The Veteran contends that he has a respiratory disability that is related to an in-service, event, illness, or injury, as he believes he has a respiratory disorder that is associated with claimed in-service exposure to asbestos, red clay dust, and residuals of malaria. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence, an April 1969 service treatment records reported that the Veteran had an upper respiratory infection. A May 1970 service treatment record reported that the Veteran had a sore throat and cough for two days. The reported impression was probable pharyngitis. An August 1970 service treatment record reported that the Veteran complained of cold symptoms. A December 1971 report of medical history documented the Veteran’s negative responses to whether he had any of the following: chronic or frequent colds, asthma, shortness of breath, or a chronic cough. The Veteran reported that he had not been treated for any ailments other than minor illnesses. A December 1971 separation medical examination reported that a chest x-ray was normal, and that the Veteran’s lungs and chest were normal. A February 1978 private treatment record reported that the Veteran had a cold and non-productive cough for one day. His lungs were reported as clear and he was diagnosed with pharyngitis. A May 2003 VA primary care noted reported that the Veteran had intermittent problems with cough, congestion, fever, and night sweats. He stated that this occurs on a seasonal basis, which was worse in spring and relates it to cutting grass. His symptoms started one month ago with fever, productive cough, and night sweats, though he also stated these symptoms have resolved over the last week. A pulmonary examination revealed his lungs were clear to auscultation bilaterally without wheezes, rales, or rhonchi. A September 2003 VA primary care note reported that that Veteran reported occasional coughing with intermittent vague symptoms of flu-like symptoms with a slight fever. It was reported that a June 2003 chest x-ray showed no acute problems. The Veteran gave a vague history of having flu-like symptoms while stationed in Thailand in 1970. It was reported that the Veteran feels that he had malaria and might have been treated with some medications for this condition although he does not have a well-documented case of this. He reported having occasional coughing but denied any chest pain or shortness of breath. A February 2005 VA primary care note reported that the Veteran denied having any shortness of breath, palpitations, or unusual weakness. The Veteran’s lungs were clear to auscultation and percussion. An August 2010 VA medical record reported the Veteran’s lungs were clear to auscultation bilaterally, with no wheezes, rhonchi, rales, or rubs. It was reported that the Veteran had good air exchange. In August 2012, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, in which he expressed that he has constant lung problems associated with malaria, asbestos, and red clay dust from his assignment in Thailand. The Veteran stated that he ran a high fever and had to have someone feed him and give him water. He reported that it was several days before he could go back to work. However, the Board notes that the Veteran reported on his December 1971 report of medical history that he had not been treated for any ailments other than minor illnesses. A January 2013 VA radiology report indicated the reason for the study, also listed as the indication, was chronic obstructive pulmonary disease (COPD)/asbestos. However, the impression revealed that the lungs were well expanded and clear, aside from mild basilar atelectasis. There was no focal opacity or mass. There was no effusion or pneumothorax. No pleural calcifications were seen. The cardiac silhouette was within normal limits. At the Veteran’s November 2017 Board hearing, he testified that he believed he was exposed to asbestos in the motor pool and red clay dust during his military service. He also stated that x-rays had not found anything in his lungs as far as he was aware. A September 2019 VA radiology report indicated the reason for the study, listed as the indication, was a compensation and pension examination. The findings revealed that the lungs remain clear and unchanged with no significant pulmonary or pleural abnormality. The Veteran was provided a VA respiratory conditions examination in May 2020. The examiner reviewed available records without an in-person examination using the Acceptable Clinical Evidence due to the COVID 19 pandemic to avoid harm to the Veteran. The examiner reported that the Veteran does not have an ongoing respiratory condition. The examiner noted that a September 2019 VA primary care note reported that the Veteran denied have a cough, wheeze, or dyspnea, and a pulmonary examination showed the Veteran’s lungs were clear to auscultation bilaterally. No respiratory diagnosis was given. The examiner reported that a September 2019 chest x-ray showed that the Veteran’s lungs remain clear and unchanged. There was no pneumonia, pulmonary edema, or pleural effusion. The impression was no significant pulmonary or pleural abnormality. A January 2013 ches x-ray showed that, aside from mild basilar atelectasis, the lungs are well expanded and clear. There was no focal opacity or mass. There was no effusion or pneumothorax and no pleural calcifications are seen. The cardiac silhouette is within normal limits. The examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran had a respiratory disability that was incurred or caused by an in-service injury, event, or illness. As rationale, the examiner explained that the objective examination was normal and that the Veteran’s symptoms are subjective only. There was no objective evidence of a chronic condition. The examiner noted that his service records reported pharyngitis and cold and flu symptom, his November 1971 separation examination was normal, with no respiratory complaints. There is no medical evidence that the Veteran was diagnosed with or treated for malaria. There is no medical evidence to show the Veteran had any chronic cough or colds since separation from service. In September 2003, which was 31 years after separation from service, the Veteran reported intermittent vague symptoms of flu-like symptoms. His claims file is silent for any diagnosis of chronic cough or colds, COPD, or asbestosis. Chest x-rays from January 2013 and September 2019 were both within normal limits. Pulmonary function testing in 2019 was normal. The examiner also explained that a September 2019 VA primary care note reported no respiratory complaints, no history of respiratory conditions or chronic cough noted, and no respiratory medications on the medication list. As previously described, a December 1971 separation report of medical history documented the Veteran’s negative responses to whether he had chronic or frequent colds, asthma, shortness of breath, or a chronic cough. His lungs were reported as clear in February 1978 when he sought care for a non-productive cough. In May 2003, the Veteran reported intermittent problems with cough, congestion, fever, and night sweats on a seasonal basis, which he related to cutting grass. In September 2003, the Veteran reported occasional coughing being associated with intermittent vague symptoms of flu-like symptoms during his service in Thailand in 1970. He believed that he may have had malaria in service. A lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates the onset of the Veteran’s claimed respiratory disorder to many years after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his claimed respiratory disorder. Consequently, the Board gives more probative weight to the May 2020 examination report and opinion. After reviewing the Veteran’s claims file, the May examiner opined that it was less likely than not that the Veteran had a respiratory disorder that was incurred or caused by an in-service injury, event, or illness. As rationale, the examiner explained that the objective examination was normal and that the Veteran’s symptoms are subjective only. There was no objective evidence of a chronic condition. The examiner noted the Veteran’s November 1971 separation examination was normal, with no respiratory complaints. There is no medical evidence that the Veteran was diagnosed with or treated for malaria. There is no medical evidence to show the Veteran had any chronic cough or colds since separation from service. Chest x-rays from January 2013 and September 2019 were both within normal limits, and pulmonary function testing in 2019 was normal. The Board acknowledges that a January 2013 VA examination report lists a diagnosis of malaria in 1970. However, the evidence of record does not reflect a diagnosis of malaria in 1970. A September 2003 VA primary care note reported that that Veteran gave a vague history of having flu-like symptoms while stationed in Thailand in 1970, and reported that he felt that he had malaria and might have been treated with some medications for this condition although he does not have a well-documented case of this. Despite the vague history provided by the Veteran, the treating physician entered “Hx of malaria 1970 in thailand” to be associated with the entry of the Veteran’s “intermittent flu like symptoms (chronic)” on the Veteran’s computerized problems list, which was subsequently repeated throughout the Veteran’s VA treatment records. The Board notes that the Veteran’s service treatment records, including a December 1971 separation examination, do not mention a diagnosis or treatment for malaria. The Veteran also reported in December 1971 that he had not been treated for any ailments other than minor illnesses. The Board also notes that the Veteran’s record does not include a diagnosis for COPD or asbestosis. The January 2013 VA radiology report’s listing of “Indication: COPD and asbestosis” was the reason for administering the x-rays, not the findings. The findings, conveyed in the impression, show that the Veteran’s lungs were within normal limits. These findings were confirmed by a September 2019 VA radiology report, which revealed that the Veteran’s lungs remain clear and unchanged with no significant pulmonary or pleural abnormality. Notably the “indication” for the September 2019 x-rays, the reason for administering the x-rays, was “C&P exam.” Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a respiratory disorder. 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 claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran’s claim for a respiratory disorder must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.