Citation Nr: 21011795 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-33 332 DATE: March 2, 2021 ORDER Entitlement to service connection for a respiratory condition (claimed as chronic bronchitis) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s respiratory condition (claimed as chronic bronchitis) condition began during his active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory condition (claimed as chronic bronchitis) are not been 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 had active service from March 1970 to November 1971 and December 1972 to August 1983. This matter comes before the Board of Veterans’ Appeals (Board) from the November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a March 2019 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In June 2019, the Board remanded this matter for more development. Most recently, in September 2020, the Board remanded this matter for more development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided herein. The Veteran should not assume that evidence that is not explicitly discussed herein has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to service connection for a respiratory condition (claimed as chronic bronchitis) The Veteran contends that he currently has a respiratory condition that is related to his military service. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Although the Veteran had an episode of bronchitis in November 2010, the preponderance of the probative evidence is against finding that the November 2010 episode of bronchitis was etiologically related to any in-service treatment for or complaints of a respiratory condition or to any other in-service event, injury, or disease. The Board has considered the Veteran’s assertion that his respiratory condition is etiologically related to his active service. Although the Veteran is competent to report his current symptoms, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), he is not considered competent to render an opinion as to the likely etiology of his respiratory condition, as doing so requires specialized medical knowledge and expertise he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, the Board instead turns to the competent medical evidence of record to determine whether such an etiological connection exists. The Veteran’s service treatment records include a diagnosis of acute bronchitis. See April 1981 Service Treatment Record. The Veteran was also treated for chest pain, mild congestion, sinus drainage, and headaches during service. In November 2010, the Veteran was treated for bronchitis. See November 2010 Private Treatment Records submitted February 2012. In September 2013, the Veteran underwent a VA respiratory conditions examination. The examiner noted that the Veteran reported having multiple respiratory and sinus infections during his military career. The Veteran stated that he continues to experience respiratory infections that occur one to two times per year, especially during the colder months, and he is prescribed antibiotics as treatment. The examiner noted that the Veteran is not currently on any maintenance medication or inhalers. The examiner stated that the Veteran has not been and is not currently diagnosed with a respiratory condition. The examiner stated that according to the latest medical and diagnostic information related to chronic bronchitis, the Veteran does not meet the diagnostic criteria for that diagnosis. Therefore, the examiner concluded that although the Veteran was treated several times for respiratory complaints while on active duty, his current medical records do not indicate any chronic disease. In March 2019, the Veteran testified during a Board hearing about his respiratory conditions. He testified that he is hospitalized once or twice a year for his chronic bronchitis. He also stated that he had been treated about a week earlier, and that he was going to get more treatment within the next few days. Specifically, the Veteran stated that he was seen at a private facility, Our Lady of Lourdes. In September 2020, VA sent the Veteran VA Forms 21-4142 to complete in order for VA to request the Veteran’s records on his behalf. In October 2020, the Veteran indicated that all evidence has been submitted in support of his appeal. In December 2019, the Veteran underwent a VA examination for his respiratory condition. The Veteran reported an onset of chest congestion and cough during service, which were treated with antibiotics and cough syrup. The Veteran reported occasional flare-ups with labored breathing, chest congestion and cough, that required multiple ER visits. The December 2019, examiner opined that the Veteran’s respiratory condition was less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner stated that she was “unable to confirm a current chronic respiratory condition with current available records and/or today’s exam. A nexus has not been established.” The examiner also stated, “lung function decreases with increasing age. Veteran has slightly below normal PFT results. There is no objective evidence of a respiratory condition in the records.” In February 2019, the Veteran had an x-ray that revealed “no impressions found.” In October 2020, VA secured a VA addendum opinion regarding the Veteran’s respiratory condition. The examiner opined that the Veteran’s respiratory condition was less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, Prior examiner stated that the Veteran did not have a diagnosable respiratory condition and that while Veteran was treated several times on ADS he does not have chronic disease. Subsequent Exam performed by [S.P.] demonstrated that Veteran was not taking any medications or using inhalers and did not meet criteria for chronic bronchitis. During 3/2019 BVA Hearing Veteran testified that he was hospitalized 1-2 times per year for chronic bronchitis. There is only a single report of complaints or treatment for bronchitis in the medical record which was from 11/19/10; this limited finding does not constitute a chronic diagnosis. The Board concludes that the Veteran’s lay statements, VA examinations, and treatment records, taken together are consistent in establishing that the Veteran’s respiratory condition is not related to service. There is no credible evidence in the record that demonstrates that the Veteran has, or had, a diagnosis of a chronic bronchitis condition at any time during this appeal period. The Board acknowledges that the Veteran was diagnosed with bronchitis in-service, and on one occasion after service. However, the Veteran’s record is consistent, in demonstrating that no VA or private examiner has opined that the Veteran has a diagnosis of chronic bronchitis, or that his respiratory condition is related to service. The Veteran is unable to demonstrate that there is a direct service connection because there is no nexus between the Veteran’s respiratory condition and his active service. The Board finds the examiner’s combined opinions are highly probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In summary, service connection is unwarranted on a direct basis. Finally, neither the Appellant nor his representative has raised any issues with the duty to notify or duty to assist regarding the claim denied above. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence weighs against the claim, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.