Citation Nr: 21011472 Decision Date: 03/02/21 Archive Date: 03/01/21 DOCKET NO. 10-13 644 DATE: March 2, 2021 ORDER The claim for service connection for a pulmonary disorder other than asthma is denied. FINDING OF FACT There is not a confirmed diagnosis of a present pulmonary disorder other than asthma, including reactive airways disease, but even if present, that condition has not been causally attributed to service, or to a service-connected disability. CONCLUSION OF LAW The criteria are not met for service connection for a pulmonary disorder other than asthma. 38 U.S.C. §§ 1111, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Air Force from May 1982 to May 1986. In March 2013, the Veteran testified before a Veterans Law Judge (VLJ) at a Board Central Office in Washington, D.C. The transcript of the proceeding is of record. Following the retirement of the hearing judge, the Veteran was later offered the opportunity for another hearing before the VLJ who would issue a decision in this case, but the Veteran declined. In August 2014, the Board reopened the previously denied claim of service connection for a pulmonary disorder, including pneumonia, asthma, lung damage and pleural effusion, including as secondary to service-connected disabilities, and remanded the claim for further development. In January 2018, the Board remanded the claim to obtain a VA medical opinion on the etiology of a pulmonary condition. Subsequently, in a February 2018 rating decision, VA granted service connection for asthma, evaluated at 30 percent, effective February 13, 2008, and returned the claim of entitlement to service connection for a pulmonary disability other than asthma to the Board. In November 2019, the Board remanded the claim of service connection for a pulmonary disorder other than asthma for further development, to include obtaining a VA medical opinion. Entitlement to service connection for a pulmonary disorder other than service-connected asthma. Service connection is available for current disability resulting from disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). Service connection also may be granted for disease diagnosed after discharge where incurred in service. 38 C.F.R. § 3.303(d) (2020). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases may be presumed to have been directly incurred in active service without need for competent evidence proving a causal relationship to service, if manifested to a 10 percent level generally within one-year of service discharge. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there was a chronic disease in service, reappearance at any later date is service-connected, unless clearly due to an intercurrent cause. If not chronic, there must be continuity of symptomatology to link in-service disability to post-service condition. See 38 C.F.R. § 3.303(b). But see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology principle limited to where involving those diseases already listed as “chronic” under 38 C.F.R. § 3.309(a)). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Reviewing the competent and probative evidence of record, the Board finds the preponderance of this evidence does not indicate that there is any pulmonary disorder besides asthma that was incurred in service or is otherwise due to a service-connected disability. As discussed above, the Veteran is service-connected for asthma. There remains for consideration in this case whether the Veteran has a pulmonary disability other than asthma, since earlier records reflect a diagnosis of “restrictive lung disease,” though unspecified, on several occasions. Previously, the Board remanded the issue to address whether there is a separate diagnosable disability, and if so, the likely etiology of that disability. The Veteran’s service treatment records (STRs) show that the Veteran had several pulmonary and respiratory medical issues during his service, including bronchitis, pneumonia, asthmatic attacks, as well as outpatient treatment and periods of hospitalization for treatment and recovery from the same. An October 2008 VA examination report reflects the Veteran reported he transferred to Grissom Air Force Base in Indiana about 1985 and developed a “lung infection that would not go away.” He stated he was diagnosed with asthma after difficulty breathing and pain with inspiration. In about 1996, he moved to Texas, developed pleurisy, and was hospitalized. He further reported that over the past 10 years, he had episodes of “smothering,” shortness of breath, and a cough productive of clear secretions. He reported daily use of an inhaled bronchodilator and inhaled anti-inflammatory. A history of asthma was noted, with frequency of attacks three or more per week and several per year. However, following examination, the examiner indicated within the diagnosis section that “no lung condition is documented.” Several years later, on April 2015 VA examination, the following opinion was obtained: The condition claimed was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event or illness. * * * I believe the Veteran has two pulmonary disorders. First, I believe he has reactive airway disease, or mild asthma. This opinion is not clear cut, but I believe it is as least as likely as not. His service medical records contain multiple progress notes and consultations, many of which document the physical findings typical of reactive airway disease, primarily wheezing. Various physicians expressed opinions including atypical asthma, reactive airway disease, bronchial spasm, and laryngeal dysfunction. Additional medical notes after discharge from service suggest the presence of asthma. At the time of the physical exam I performed, physical findings of high-pitched rhonchi and wheezing indicate reactive airway disease. Therefore, I conclude it is as least likely as not that he has reactive airway disease (mild asthma) dating back to the time of his military service, non-confirmatory pulmonary function studies notwithstanding. Second, I believe has a restrictive airway disease as diagnosed on his current PFT. Clearly the reactive airway condition was present while he was in service as documented by many progress notes. However, I cannot connect a restrictive pulmonary condition with military service and cannot date the onset of that condition. * * * I have reviewed the conflicting medical evidence and am providing the following opinion: The veteran, in my opinion as noted above, had asthma while in service. However, there is no evidence in the service medical records to link his asthma with an adjustment disorder. Subsequently, it was indicated by January 2016 addendum to the previous examination apparently, a different view about the diagnosis of a respiratory issue. The opinion was that “I have reviewed virtual files and recent exam. After review of clinical records and recent exam it does not appear that the Veteran has a diagnosis of asthma. No diagnosis of asthma, thus no opinion indicated.” On VA examination in August 2018, the diagnoses were asthma and restrictive lung disease. The second diagnosis was based upon moderate restrictive lung disease on PFT in 2015. The medical history was indicated as follows (also reiterated from prior examinations): The Veteran served with the USAF from 1982 until 1986. While in basic training he states that he was exposed to multiple bats. During basic training he was hospitalized about five days for pneumonia. About one year later he assisted in recovering the body of a pilot who had been killed in an aircraft. About two weeks later he was hospitalized with pulmonary and otic complaints. About one year later he noted that his fingernails were blue. He was again hospitalized with pneumonia and dyspnea. After experiencing continued problems, including dysphagia, he was referred to the hospital at Wright Patterson AFB. He is uncertain what conclusions were reached regarding his diagnosis. In the succeeding 30 years he states he has had “bouts of pneumonia” and pleural effusion. At times he states he has been told he has asthma. At other times he was told he did not have asthma. Since the time of that exam he has experienced episodes of feeling “nearly being choked to death.” This is described as being “unable to breathe to the point that I think that I am going to die.” Various theories have been expressed about the etiology of these symptoms, but no definitive diagnosis has been given. A July 2019 addendum opinion from the August 2018 VA examiner indicated as follows: Clearly the reactive airway condition was present while he was in service as documented by many progress notes. However, I cannot connect a restrictive pulmonary condition with military service and cannot date the onset of that condition. Therefore, I cannot connect his restrictive disease to his in-service pneumonia or exposure to jet fuel without resorting to speculation. Asthma can lead to obstructive lung disease, not restrictive lung disease. I see no link between a psychiatric condition and restrictive lung disease. Theoretically his GERD could lead to aspiration and pulmonary fibrosis, but a CT of his chest on 10/11/2006 was unremarkable as regards his lungs. Therefore, I cannot link his restrictive lung disease to those conditions. By similar reasoning I am unable to link any aggravation of his restrictive lung disease to any of the aforementioned conditions. By its November 2019 remand, the Board requested another VA examination on the claim on appeal, specifically this time to determine whether there a separate diagnosable restrictive lung disorder or did it resolve. An October 2020 VA examination report lists one diagnosis of asthma. As to more recent medical history, the Veteran on examination reported having had intermittent “choking sensations,” with feeling “like I’m drowning” that cause him to cough and breath hard with a croupy sound on inspiration. These episodes occurred without apparent provocation, lasting about five minutes and occurring at variable intervals, but more than once a week. He usually tried to calm down and he used his albuterol inhaler, as he felt the albuterol helped. He reported these episodes were similar to those that he had while in service. For hours after these episodes he felt like he had fluid in his lungs and a bag over his head. In between these episodes he was sometimes “good to go” and at other times he felt “like I have a bag over my head” with activity even without an episode. He said that he used oral prednisone in the past for “lung congestion” with the last use in about November or December 2019 and he believed in the last year he used prednisone twice. He used albuterol at variable intervals sometimes not needing to use it at all. According to the clinical findings portion of the examination report, the Veteran required intermittent courses or bursts of systemic (oral or parental) corticosteroids for the condition, in the estimated amount of two courses the previous 12 months. There was necessary inhalational bronchodilator therapy. There was not required oral bronchodilators, use of antibiotics, oxygen therapy. The Veteran had not had any asthma attacks with episodes of respiratory failure in the past 12 months. Physician visits for required care of exacerbations was less frequently than monthly. A chest x-ray that was done the prior month was normal. A pulmonary function test (PFT) was completed. It showed pre-bronchodilator results of FVC 70 percent predicted; FEV-1 73 percent predicted; FEV-1/FVC 104 percent predicted. Post-bronchodilator results were FVC 74 percent predicted; FEV-1 82 percent predicted; FEV-1/FVC 110 percent predicted. The examiner considered there to have been some functional impairment that consisted of limitation in working around fumes and smoke due to asthma. The VA examiner then provided the following about the Veteran’s diagnostic picture and in particular, the absence of any diagnosis of a diagnosed restrictive lung condition. The claimant has a nonspecific restrictive pattern in the current spirometry. According to the Mayo Clinic about 50 percent to 60 percent of patients with a nonspecific pattern such as in this case have evidence of obstruction, while the remaining 40 percent to 50 percent have chest wall limitation, muscle weakness, or poor performance. The totality of the data does not indicate lung parenchymal disease such as fibrosis or non-parenchymal (e.g. chest wall) restriction as a cause of the current or previous restrictive pattern which leaves obstruction or poor performance as possible causes for the findings. Variability in the current spirometry is noted in the interpretation. This variability and the variability in prior spirometry (restriction evident in 2015 PFT’s and no abnormalities in 2018) suggests either air trapping due to obstructive lung disease with increased residual volume causing the restrictive defect on PFTs or claimant manipulation of the test either intentional or unintentional. There is no evidence of a new restrictive lung disease. Therefore, the established diagnosis of asthma is sufficient to explain the current spirometry results. The Board finds examiners’ opinions, taken together, are probative, because they are based on an accurate medical history, medical expertise, and provide explanations that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on the above findings, the Board concludes that the evidence does not support a finding of any standalone restrictive airways disorder, including apart from a medical condition already diagnosed. The October 2020 examiner did not diagnose a restrictive disorder, but rather, ruled one out. The Board acknowledges the findings of previous VA examiners, but even if the Board assumed that the Veteran has or has had a restrictive lung disorder, the previous VA examiners did not attribute it to service or a service-connected disability. Apart from these discussions of what caused any condition of a restrictive lung disease that was found, the October 2020 VA examination report as indicated found and offered a stated justification for concluding that the Veteran did not have a restrictive lung disease. Further, the examiner noted variability in the current spirometry which suggested functional or sometimes intentional defect in test results. Ultimately, the examiner concluded that the Veteran did not have a separate disability, and that his asthma diagnosis was the cause of the testing results. Per applicable VA law, having a current disability is the cornerstone of a claim for VA compensation. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability there can be no valid claim. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (“Compensation for service-connected injury is limited to those claims which show a present disability.”); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Taking into account the present disability requirement, the evidence of record weighs against a finding that the Veteran has current disability separate from his service-connected asthma. However, even if the Board were to presume the Veteran had a separate diagnosis at some point during the appeal period, service connection would not be warranted. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary’s adjudication of the claim). As previously indicated, the preponderance of the evidence weight against a finding that any separate disability was etiologically related to service. The Board notes that the Veteran is competent to report his experiences and symptoms. However, the Veteran is not competent to report a diagnosis or etiological opinion in this matter, as the issue is medically complex and requires knowledge of pathology and interpretation of complicated medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board gives more probative weight to the VA medical opinions as discussed above. (Continued on next page)   For these reasons, the preponderance of evidence on whole weighs against the instant claim. Accordingly, it is found that VA’s benefit-of-the-doubt doctrine does not apply, and the Veteran’s claim must be denied. 38 U.S.C. § 5107(b). 38 C.F.R. § 3.102. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.