Citation Nr: 21015224 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-39 333 DATE: March 17, 2021 ORDER Entitlement to service connection for a respiratory disability is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDING OF FACT The Veteran does not have a current respiratory disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to March 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA). This case was remanded in July 2019 for further development. In June 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In January 2021, the Veteran and his representative were notified that the Veteran’s testimony was mostly inaudible, and the Board was unable to produce a complete transcript of the proceeding. (It appears the Board noted in error that a transcript was of record in July 2019.) The Veteran was given the option to request a new hearing but did not respond to the correspondence. As a result, at this time the Board finds that he waived his right to a new hearing and will proceed with adjudication with the testimony that is available. The Board notes that the last Board remand discussed significant portions of the Veteran’s testimony. The Board will consider the discussions in its previous remand, as appropriate. Entitlement to service connection for a respiratory disability. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In the absence of a current diagnosed disability, service connection cannot be granted for such disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pain with functional impairment can be considered a disability for VA purposes. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran appears to have testified that he had a diagnosis around the time of his discharge from service and that he was seeing a private physician. See June 2019 Board hearing. He later reported that respiratory problems started in the 1970s after discharge from service, which consisted of a runny nose and tearing of the eyes. He denied shortness of breath, wheezing, and coughing, as well as being on medications for a respiratory condition. See February 2020 VA examination. The Agency of Original Jurisdiction (AOJ) requested that the Veteran provide private medical releases so that private treatment records could be obtained. See November 2019 VA correspondence. The Veteran did not respond. The Board notes that the Veteran has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA’s duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). The treatment records obtained do not reflect a diagnosis of a respiratory or sinus disability. Additionally, the February 2020 VA respiratory examiner found that the Veteran had not been diagnosed with a respiratory disability now or ever. There is no evidence that the Veteran has now or at any point during the appeal period been diagnosed respiratory disability or any symptoms that result in functional impairment. The Board notes that the Veteran still ultimately bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). Because the preponderance of the evidence reflects that the Veteran has not now or at any point during the appeal period had a respiratory disability, service connection must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability. As noted in the July 2019 Board remand, the Veteran testified that he injured his left knee after jumping over a foxhole and that he had pain since that time. A February 2020 VA examiner diagnosed left knee joint osteoarthritis, but opined it was less likely than not that the disability was related to service because the disability was acute and transitory, and it was not constantly painful or causing discomfort from the time of the injury. This opinion is inadequate because it does not consider the Veteran’s lay statement that he had knee pain since service. As a result, remand for a new examination is necessary. Because the Veteran’s Board testimony is not available, the Board will request the new VA examiner to confirm and discuss left knee pain since service. 2. Entitlement to service connection for a right ankle disability and left ankle disability. As noted in the July 2019 Board remand, the Veteran testified that he hurt his ankles due to his boots during service. A February 2020 VA examiner diagnosed bilateral tendonitis, but opined it was less likely than not that the disability was related to service because the disability was acute and transitory, and it was not constantly painful or causing discomfort from the time of the injury. This opinion is inadequate because it does not consider the Veteran’s lay statement that he had ankle pain since service. As a result, remand for a new examination is necessary. Because the Veteran’s Board testimony is not available, the Board will request the new VA examiner to confirm and discuss bilateral ankle pain since service. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from January 2020 to the present. 2. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any left knee disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please discuss with the Veteran and confirm left knee pain since service. (b.) For each left knee disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran’s lay report of left knee pain since service and may not rely solely on the absence of medical evidence. 3. After the development in the first directive is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any bilateral ankle disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please discuss with the Veteran and confirm bilateral ankle pain since service. (b.) For each ankle disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran’s lay report of bilateral ankle pain since service and may not rely solely on the absence of medical evidence. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.