Citation Nr: 21015064 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-23 120 DATE: March 16, 2021 ORDER Entitlement to service connection for chest infections is granted. Entitlement to service connection for emphysema, to include as secondary to chest infections, is granted. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to chest infections, is granted. FINDINGS OF FACT 1. The evidence of record is sufficient to support a finding that chest infections are related to active service. 2. The probative medical evidence of record has shown that the Veteran’s current emphysema is proximately due to his service-connected chest infections. 3. The probative medical evidence of record has shown that the Veteran’s current COPD is proximately due to his service-connected chest infections. CONCLUSIONS OF LAW 1. The criteria for service connection for chest infections are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2019). 2. The criteria for service connection for emphysema, to include as secondary to chest infections, have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2019). 3. The criteria for service connection for COPD, to include as secondary to chest infections, have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1976 to June 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2018, the Veteran presented sworn testimony during a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s claims file. This claim was previously before the Board in November 2020, at which time it was remanded for further development. Service Connection Service connection is warranted for disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). 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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). When determining whether a defect, infirmity, or disorder is “noted” at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). Mere transcription of medical history does not transform information into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995). VA’s General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If the presumption of soundness is not rebutted, the claim is treated as one for ordinary service connection. The Court has held that lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a lay person’s account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition); see also Leshore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional.) A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306 (b). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (non-precedential). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a 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. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is considered competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App. 370, 374 (2002). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. 1. Entitlement to service connection for chest infections 2. Entitlement to service connection for emphysema, to include as secondary to chest infections 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to chest infections On the June 1976 entrance examination, the Veteran’s lungs and chest were found to be normal and he was qualified for enlistment. The Veteran was seen for an upper respiratory infection in July 1976 and reported pain or pressure in his chest on his June 1979 Report of Medical History. Pursuant to the November 2020 Board remand, the Veteran received a VA examination in December 2020 and the examiner noted diagnoses of asthma, emphysema, COPD, and allergic rhinitis with asthma. The Veteran stated that he had had reactive airway disease and severe allergic asthma prior to service, but was exposed to diesel exhaust fumes, smoke, and dust during service. The artillery, smoke grenades, and small arms fire exacerbated his asthma and led to upper respiratory infections, hay fever, seasonal rhinitis, and cough/chest pains. Based on the results of the examination, the examiner concluded that the Veteran had a pre-existing condition, to include allergic asthma, prior to enlistment and the evidence showed that the disease became progressively more severe and difficult following his exposure to environmental and chemical factors during service. Diagnoses of COPD and emphysema were given in 2008, many years after separation. Therefore, it was less likely as not that any diagnosed respiratory condition, to include chest infections, COPD, and emphysema had their onset in service. The examiner also concluded, however, that it was at least as likely as not that the Veteran’s COPD and emphysema were proximately due to the Veteran’s chest infections. The progressive nature of the conditions was unlikely to be explained by subsequent tobacco use following service. As such, a nexus was established. At the outset, the Board notes that a respiratory condition was not noted at the Veteran’s entrance to service. The evidence of record also does not reflect that a respiratory condition, even if it was pre-existing, clearly and unmistakably was not aggravated during service. Because there is no clear and unmistakable evidence that the Veteran’s chest infections, emphysema, and COPD pre-existed service and was not aggravated during service, the presumption of soundness is not rebutted and the Veteran’s claim becomes one of direct service connection. Therefore, with regards to chest infections, the Board’s analysis must turn to the question of whether the Veteran currently suffers from the disorder, and, if so, whether it began in or is otherwise due to his military service. In this regard, the Board finds that while there is not clear and unmistakable evidence that the Veteran’s chest infections were not aggravated by service, there is a medical opinion that demonstrates that it existed during service. Furthermore, there is a current diagnosis. Consequently, despite the opinion that appears to be negative on its face, since the examiner did not find that the Veteran’s chest infections were not clearly and unmistakably aggravated during service, and did not offer any intercurrent causes to explain the post-service manifestations of the Veteran’s current chest infections, the Board will give the Veteran the benefit of the doubt, and conclude that the evidence is not sufficient to rebut the presumption of soundness, and that service connection is thus warranted for chest infections on a direct basis. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. With regards to emphysema and COPD, the Board finds the December 2020 opinion highly probative and concludes that service connection for emphysema, as secondary to chest infections, and service connection for COPD, as secondary to chest infections, is warranted. The examiner considered the Veteran’s history and in-service experiences, and provided an adequate rationale for his conclusion that the Veteran’s emphysema and COPD were caused by his chest infections. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.