Citation Nr: 21015281 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-59 265 DATE: March 17, 2021 ORDER Service connection for a chronic respiratory condition, claimed as necrotizing granuloma of the left upper lobe, bronchiectasis, or bronchiolitis, is denied. FINDING OF FACT The preponderance of the evidence is against finding that a chronic respiratory condition, shown as necrotizing granuloma of the left upper lobe, bronchiectasis, or bronchiolitis began during active service or within one year thereafter, or is otherwise related to an in-service injury or disease, or to a service-connected disease or injury. CONCLUSION OF LAW The criteria for service connection for a chronic respiratory condition, shown as necrotizing granuloma of the left upper lobe, bronchiectasis, or bronchiolitis have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1965 to April 1988. The Veteran testified at a Board hearing before the undersigned in April 2019. A transcript of the hearing has been associated with the claims folder. The claim for service connection for a chronic respiratory disorder was remanded by the Board in May 2019, in pertinent part, for a medical opinion. While a VA examination and medical opinion was obtained in February 2020, it was not considered sufficient for rating purposes. The case was again remanded in December 2020 so that an addendum opinion could be obtained. This was accomplished and the case has been returned for further appellate consideration. Entitlement to service connection for a chronic respiratory condition, including necrotizing granuloma of the left upper lobe, bronchiectasis, or bronchiolitis The Veteran contends that service connection should be established for a chronic respiratory disorder. It is noted that he was treated for several respiratory disorders during service. Alternatively, it is asserted that the disorder could be related to exposure to herbicide agents while serving in the Republic of Vietnam (RVN) or related to a service-connected disability. The Board notes that herbicide agents exposure from service in the RVN has been established by VA. 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has had a diagnosis of bronchiectasis as evidenced by the March 2016 VA outpatient treatment report. Bronchiectasis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). “When aggravation of a veteran’s non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.” Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is currently in effect for gouty arthritis of both ankles, degenerative disc disease of the lumbar spine with spinal stenosis, gouty arthritis of both feet, tinnitus and hearing loss. The statutory provision specifically covering Agent Orange is 38 U.S.C. § 1116. Under 38 U.S.C. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, among the diseases that may be presumed to be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied, include respiratory cancers such as cancers of the lung, bronchus, larynx, or trachea. 38 C.F.R. § 3.309(e). Aside from these presumptive provisions, service connection might be established by satisfactory proof of direct service connection. See Combee v. Brown, 34 F.3rd 1039 (Fed. Cir. 1994). 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. The Board concludes that, while the Veteran has a current diagnosis of a chronic respiratory disability, and evidence shows that he was treated for respiratory disorders on several occasions during service, the preponderance of the evidence weighs against finding that the Veteran’s current disability began during service or is otherwise related to an in-service injury, event, or disease. Review of the Veteran’s service treatment records (STRs), show that the Veteran was treated for respiratory disabilities, including coughs, bronchitis, upper respiratory infections, and possible pneumonia while he was on active duty. On examination for retirement from service, in March 1988, clinical evaluation of the lungs and chest was normal. Post service treatment records show that in May 1998 the Veteran was found to have a nodule of the left upper lobe of the lung. The nodule was suspicious for malignancy. The Veteran underwent a left thoracoscopy with wedge resection of the left upper lobe. The postoperative diagnosis was necrotizing granuloma of the left upper lobe. No malignancy was found. VA treatment records dated in March 2016 include diagnoses of bronchitis and bronchiectasis. In a November 2019 statement, a VA physician, a specialist in pulmonary medicine, indicated that the Veteran had chronic lung disease characterized by bronchiectasis and bronchiolitis. The Veteran’s exposure to Agent Orange during service was noted. An examination was conducted by VA in February 2020. At that time, the diagnosis was interstitial lung disease that was specified as non-CF bronchiectasis and bronchiolitis with pulmonary fibrosis, obstructive changes and recurrent bronchitis. After examination, the examiner opined that it was less likely than not that the Veteran’s respiratory disorder was proximately due to or the result of a service-connected condition. The rationale was that the Veteran had lots of reported infections during service and had a diagnosis that was not Agent Orange or asbestos related. The examiner noted the Veteran’s statement that he felt his current condition began during service as a primary condition, but the examiner found no nexus to be present. The examiner explained that there was no documentation to support that the current condition was the result of any of the Veteran’s service-connected disabilities, so it was less likely than not proximately due to or the result of the service-connected conditions. In an addendum opinion rendered in November 2020, the examiner opined that the Veteran’s respiratory disorders were less likely than not incurred in or caused by a claimed in-service injury, event or illness. The rationale was that the Veteran was known to have a chronic sinus, upper respiratory, condition that flared sometimes causing acute lower respiratory conditions, including bronchitis and pneumonia that resolved when treated. This was shown in the Veteran’s STRs. The examiner went on to state that there was no evidence of a chronic, independent respiratory condition from service. Review of the record shows that the Veteran had several episodes of respiratory disorders in service that were, in the opinion of the VA examiner in November 2020, acute in nature. A chronic disorder is not demonstrated until 1998 at the earliest, which is ten years following his separation from active duty. Bronchiectasis is not demonstrated until the VA treatment report in March 2016, which is many years after service and many years following the presumptive period for this disorder. While the Veteran is competent to report having experienced symptoms of a respiratory disorder since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a chronic respiratory disorder, including necrotizing granuloma of the left upper lobe, bronchiectasis, or bronchiolitis. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body or the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The VA examiner rendered opinions that the Veteran’s chronic respiratory disorders are not at least as likely as not related to an in-service injury, event, or disease, including the respiratory infections in service, herbicide agents exposure, and asbestos exposure; and are not related to a service-connected disability. The examiner’s opinions are probative, because they are based on an accurate understanding of the Veteran’s medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that there is no positive nexus medical opinion in the record that supports the contention that any of the Veteran’s chronic respiratory disorders are related to service, herbicide agents, asbestos or to a service-connected disability. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for a chronic respiratory disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.