Citation Nr: 21013527 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 13-07 914 DATE: March 9, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include chronic bronchitis, pneumonia, and chronic obstructive pulmonary disease (COPD), is denied. FINDING OF FACT The Veteran’s respiratory disorder, including chronic bronchitis, pneumonia, and COPD, was not incurred in or caused by her military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disorder, to include chronic bronchitis, pneumonia, and COPD, have not been met. 38 U.S.C. §§ 1110, 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 March 1964 to March 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2017. The Veteran also testified at a hearing before a Decision Review Officer (DRO) in November 2011. Transcripts of both hearings have been associated with the claims file. In October 2020, the Board issued a letter to the Veteran inviting her to request a virtual tele-hearing instead of waiting for a travel Board hearing. In the same month, it was determined that a hearing had already been conducted in this appeal. This appeal will be adjudicated based on the hearing transcript and other evidence of record. This matter was previously remanded by the Board for further development in October 2017, September 2018, and May 2020. That development having been completed, this matter has now returned to Board. 1. Entitlement to service connection for a respiratory disorder, to include chronic bronchitis, pneumonia, and COPD, is denied. Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the 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 on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). Service connection may be granted 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 granted for aggravation of a disease or injury by a service-connected disability. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that she has a respiratory condition that is etiologically related to her active service. Specifically, she asserts that she suffered an upper respiratory infection during service, and that her current respiratory conditions are related to that in-service injury. See January 2017 Hearing Transcript. The Veteran has had active cases of pneumonia, bronchitis, and COPD during the period on appeal. See April 2016 Private Medical Treatment Record, see also May and October 2019 VA Examinations. Additionally, the Veteran’s service treatment records (STRs) show she was hospitalized for a viral infection from February 1966 to March 1966. At that time, the Veteran reported that she had URI symptoms for the past six weeks. A chest x-ray was normal. Diagnosis included viral infection, most likely Coxsackie, and rubella. Thus, the Veteran has had both a current disability during the period on appeal and an in-service injury during active service, and the first and second elements of service connection have been met. As noted above, the Veteran was hospitalized during service for a viral infection, and she believes that her current respiratory conditions are related to this in-service infection. She stated that she has been suffering from upper respiratory infections ever since service. See VA Form 21-4138, dated February 8, 2010. In May 2012, the Veteran’s private physician, K.S., D.O., provided an letter stating that in her medical opinion it was at least as likely as not that the Veteran’s “upper respiratory infection” began during military service and “as of this date” are the same. The Board finds this opinion to be conclusory and without rationale. Therefore, this private medical opinion is assigned little, if any, probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weight against contrary opinions.”). The Veteran’s VA physician submitted a letter on her behalf in September 2019, noting that she has been the Veteran’s primary care provider since February 2019. The VA physician noted the Veteran’s various conditions, 12 in all, including “upper respiratory issues to include bronchitis/pneumonia.” The VA physician stated that she reviewed the Veteran’s medical records, to include her STRs, and that she personally interviewed the Veteran and examined her conditions. The VA doctor concluded that “it is at least as likely as not that many of these conditions may have begun while she was in the Military and may have been exacerbated over the years.” See September 2019 VA Physician Letter. This doctor's opinion lacks probative value, as her statement that many of the Veteran’s conditions “may have begun” in service is speculative. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. at 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a plausible claim). Further, the examiner did not identify which of the 12 diagnosed disabilities may have begun in service and did not provide any rationale for her opinion. A different VA physician submitted a letter in March 2020, stating that the Veteran has a history of severe persistent asthma, and that she has had recurrent bronchitis throughout the years. The VA physician stated that in his opinion, the Veteran’s recurrent bronchitis is caused by her asthma, which he stated was diagnosed during the Veteran’s active duty. See March 2020 VA Physician Letter. The VA physician concluded that because of this, the Veteran’s recurrent bronchitis should be considered for service connection. To the extent that this examiner’s opinion is relating the Veteran’s recurrent bronchitis to in-service asthma, it lacks probative value as it is based upon an inaccurate factual premise. The Veteran’s service treatment records contain no complaints or findings of asthma. Further, although the examiner states that the Veteran’s recurrent bronchitis is caused by her asthma, the Veteran is not service connected for asthma. The Board denied service connection for asthma in a September 2018 decision, finding that it was not incurred in or caused by her military service. As such, service connection for any respiratory condition, including bronchitis, as secondary to asthma lacks legal merit and must be denied as a matter of law. See 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 430 (1994). The Veteran was afforded a VA examination in May 2019 for her claimed conditions of pneumonia and bronchitis. The examiner noted that the Veteran was treated with antibiotics for pneumonia and bronchitis, which were acute conditions and resolved without consequence. The examiner concluded that the Veteran’s conditions during the period on appeal of pneumonia and bronchitis were less likely than not related to her in-service URI. The examiner explained that the Veteran’s in-service URI was treated with antibiotics at the time and that a URI is temporary, self-limiting, often referred to as a “cold”, and can easily resolve itself in a few days without treatment. The examiner went on to say that URIs are located in the upper respiratory tract. To the contrary, bronchitis and pneumonia occur in the bronchial tubes and lungs which are located in the lower respiratory tract. The examiner concluded that the Veteran’s claimed conditions of bronchitis and pneumonia are not etiologically related to her in-service URI. An additional VA medical opinion was obtained in January 2020 to address the Veteran’s diagnosis of COPD. The examiner noted that the Veteran was admitted to the hospital for 13 days with a one-month history of URI symptoms in service in February 1966; the differential diagnosis on admission was rubeola, rubella, or infectious mono; the condition resolved and the Veteran was discharged with a return to duty. The examiner noted that the Veteran’s separation examination showed her lungs as normal without mention of any respiratory condition. The examiner further noted that the Veteran was treated for acute conditions since leaving service several times, to include pneumonia in April 2016 and bronchitis in January 2017. The examiner found the Veteran to have a diagnosis of COPD and stated that it was less likely than not related to service. The examiner explained that the Veteran’s February 1966 in-service hospitalization for a URI was presumed viral in origin according to her records. The examiner explained that COPD is caused by emphysema and chronic bronchitis, and that the majority of cases are caused by tobacco use. The examiner noted that there are a smaller amount of cases that are genetic or caused by environmental exposures, such as fumes. The examiner noted that COPD is not linked to a viral respiratory illness. Therefore, the examiner concluded that the Veteran’s COPD is less likely than not related to her in-service URI. The Board finds the May 2019 and January 2020 VA examiners’ opinion to be probative, as they are based upon a review of the Veteran’s records and are supported by explanations, or rationale, that are sufficient for the Board to make a fully informed decision. In pertinent part, the May 2019 VA examiner explained that bronchitis and pneumonia occur in the bronchial tubes and lungs which are located in the lower respiratory tract and therefore are not etiologically related to the Veteran’s in-service viral infection in the upper respiratory tract. The January 2020 VA examiner explained the causes of COPD and noted that viral respiratory illnesses are not one of these causes. The Veteran's unsupported opinion that her current respiratory conditions, including bronchitis, pneumonia and COPD, are related to her in-service viral infection is not competent evidence and thus lacks probative value. Layno v. Brown, 6 Vet. App. 465, 470-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). In this regard, lay testimony is competent as to matters capable of lay observation or within a person's first-hand experience, and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. See Jandreau, 492 F. at 1376-77; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The determination in this case is medically and scientifically complex. Specifically, whether the in-service viral infection may have caused pathology resulting in the development of later diagnosed bronchitis, pneumonia and COPD is a determination that is too complex to be made based on lay observation alone. See Jandreau 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309; Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Accordingly, because she is a lay person in the field of medicine, the Veteran's unsupported opinion is not competent evidence on this issue, and thus lacks probative value. See Layno, 6 Vet. App. at 470-71. (Continued on the next page)   The evidence does not otherwise support a link between the Veteran’s chronic bronchitis, pneumonia, or COPD and her active service. Accordingly, the criteria for service connection are not satisfied, and therefore service connection for a respiratory disorder, including chronic bronchitis, pneumonia, and COPD, is not established. Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.