Citation Nr: 21015375 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-13 840 DATE: March 17, 2021 ORDER Entitlement to service connection for a respiratory disability, including asthma, for accrued benefits purposes, is denied. Entitlement to service connection for right lower extremity disability, for accrued benefits purposes, is denied. Entitlement to service connection for left lower extremity disability, for accrued benefits purposes, is denied. Entitlement to service connection for neck disability, for accrued benefits purposes, is denied. Entitlement to service connection for right shoulder disability, for accrued benefits purposes, is denied. Entitlement to service connection for left shoulder disability, for accrued benefits purposes, is denied. Entitlement to service connection for back disability, for accrued benefits purposes, is denied. Entitlement to service connection for “clogged arteries,” to include as secondary to a respiratory disability, for accrued benefits purposes, is denied. INTRODUCTION The Veteran served on active duty from November 1963 to December 1964. The Veteran died in September 2018. The Appellant is his surviving spouse and has been substituted as the claimant for the above-captioned claims. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Appellant and the Veteran’s son testified at a hearing with the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. In September 2020, the Board remanded the claims for additional development. After the issuance of a December 2020 supplemental statement of the case, the appeal was remitted to the Board for further appellate review. FINDINGS OF FACT 1. The Veteran’s asthma clearly and unmistakably pre-existed his active duty and was clearly and unmistakably not aggravated beyond its natural course therein. 2. The Veteran’s right lower extremity disability is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 3. The Veteran’s left lower extremity disability is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 4. The Veteran’s neck disability is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 5. The Veteran’s right shoulder disability is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 6. The Veteran’s left shoulder disability is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 7. The Veteran’s back disability is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 8. The Veteran’s “clogged arteries” is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disability, including asthma, are not met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 2. The criteria for service connection for right lower extremity disability, to include as secondary to service-connected disability, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for left lower extremity disability, to include as secondary to service-connected disability, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for neck disability, to include as secondary to service-connected disability, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for right shoulder disability, to include as secondary to service-connected disability, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for service connection for left shoulder disability, to include as secondary to service-connected disability, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 7. The criteria for service connection for back disability, to include as secondary to service-connected disability, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for service connection for “clogged arteries,” to include as secondary to service-connected disability, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminarily, this appeal was remanded in September 2020 for additional development. Specifically, the Board directed the RO to obtain relevant opinions from a VA examiner as to the salient issues presented by the Veteran’s service connection claims. In December 2020, a VA examiner rendered the requested opinions. Thereafter, the RO re-adjudicated the claims, issued a December 2020 supplemental statement of the case, and remitted the appeal to the Board for further appellate review. The Board finds that the RO substantially complied with the remand directive and, thus, another remand is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Respiratory/Asthma The Veteran asserts that a respiratory disability, including asthma, was incurred in or due to his active duty or, alternatively, that the record does not include clear and unmistakable evidence that his pre-existing respiratory disability, including asthma, was not aggravated therein. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). 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. 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be “undebatable.” The lack of aggravation may be shown by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the” pre-existing condition. 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran’s claim is one for service connection. 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 or disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. 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 U.S.C. § 1153; 38 C.F.R. § 3.306(a), (b). A veteran seeking service connection by aggravation is not entitled to presumption of aggravation in service, where there was temporary worsening of symptoms, but the condition itself did not worsen. Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). With respect to the whether the Veteran’s respiratory disability, diagnosed as asthma, pre-existed his active duty service, the Board observes that asthma is not noted on his October 1963 enlistment examination. On his contemporaneous report of medical history, the Veteran endorsed having then or previously having whooping cough, sinusitis, and hay fever. With respect to asthma on his report of medical history, there exists a check mark for both an affirmative and a negative response, with the affirmative check mark slightly more faded than the negative check mark. This lack of clarity is resolved in the Physician’s Summary section of the report, where sinusitis and hay fever are noted to occur in Spring, but there is no reference to asthma. It is reasonably clear that the affirmative response was changed to a negative response. Consequently, the Board finds that the Veteran’s asthma was not noted on entry into active duty. In order for VA to rebut the presumption of soundness, there must be clear and unmistakable evidence that the Veteran’s asthma pre-existed his active duty and that it was not aggravated therein. The evidence of record does not include any treatment reports dated prior to the Veteran’s active duty service. According to an October 1964 clinical report, the Veteran reported to sick bay with complaints of breathing difficulty. The Veteran reported to medical personnel that he had experienced asthma since childhood, but that he had not been taking medication and had not experienced recent difficulties, but noted symptoms when the wind was blowing. The Veteran was treated and released. Almost two weeks later in October 1964, the Veteran returned to sick bay with complaints of “sudden onset severe dyspnea.” On this occasion, the Veteran reported “severe attacks of asthma as a child,” but only occasional episodes of difficulty breathing since age 12. The Veteran was evaluated and treated. The examiner suggested, in light of the Veteran’s “two acute, severe attacks,” he should be further evaluated and considered for a Board of Medical Survey. As such, the Veteran was transferred to a U.S. Navy Hospital in Jacksonville, Florida. According to a Report of Board of Medical Survey (dated at various times in November and December 1964, as well as January 1965), it was determined that the Veteran’s bronchial asthma existed prior to his active duty. In so doing, the Board provided the following discussion: The past history, according to the [Veteran]’s own statement, accepted by the Board, reveals that he had frequent attacks of asthma since childhood and was ‘out of school half the time’ prior to the 6th grade. Attacks are said to be worse during the fall and spring and especially during ragweed season. There is no family history of asthma or of allergy. According to the description in the health record[,] the attacks were typical of severe asthma. He responded to treatment… ... [The Veteran] appeared before the Board of Medical Survey. The Board concurs in the diagnosis of bronchial asthma. The Board further concurs that bronchial asthma was present prior to enlistment. Opinion of the Board: Unfit for service. Recommendation: That this [Veteran] be discharged from the U.S. Naval Service. Maximum hospital benefits have been obtained at this time. … It is the opinion of the Board that this [Veteran] does not meet the minimum standards for enlistment or induction…and he is unfit for further service by reason of bronchial asthma…which was neither incurred in nor aggravated by a period of active military service. The Board has fully advised the [Veteran] of his right to demand a full and fair hearing by a Physical Evaluation Board prior to his discharge and his signed statement is attached. [capitalizations omitted] In March 1971, the Veteran underwent a VA examination with respect to his asthma. During the examination, the Veteran reported that he experienced asthma “all of his life,” and that it was manifested by wheezing, coughing, and difficulty breathing. The diagnoses were chronic bronchial asthma and mild asthmatic bronchitis. Pursuant to this claim, the VA also obtained an opinion from a VA examiner in December 2020. After reviewing the evidence of record, the examiner ultimately opined that the Veteran’s asthma clearly and unmistakably existed prior to his service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In support of this opinion, the examiner provided the following rationale: The [V]eteran’s asthma pre[-]dated service. This is documented in the records cited above and particularly noted in Med[ical] Board proceedings [on November 19, 1964]. This condition was not disclosed on entry exam. The [V]eteran was disqualified from service and discharge. Therefore, the asthma clearly pre[-]dated service. The condition was not aggravated beyond its natural course. The [V]eteran reported occasional episodes of asthma since age 12, despite not claiming this on entry exam. The [V]eteran’s 2014 [pulmonary function tests] are read as normal in the [V]eteran does not require continuous medication. This indicates no aggravation of the [V]eteran’s condition. It was noted that the condition is quiescent on the 2014 [Disability Benefits Questionnaire]. This does not mean it is necessarily resolved, but there are no objective physical manifestations. Therefore, the [V]eteran did have asthma prior to service. This is a matter of record, including the reason for discharge from service. There is no evidence of aggravation of the condition beyond its natural course while in service. The [V]eteran had two documented episodes with apparent resolution of those events while in service. As the [V]eteran has no evidence of lung dysfunction, there is no aggravation beyond the natural course. Based on the negative entry exam, it is likely the [V]eteran had sporadic, episodic asthma attacks both pre[-]service and during service. Neither the Veteran nor the Appellant submitted or identified competent medical evidence demonstrating the Veteran’s asthma did not exist prior to service. Based on the evidence discussed above, the Board finds there is clear and unmistakable evidence that the Veteran’s asthma pre-existed his active duty. The contemporaneous Medical Board determination and a subsequent VA examiner both reviewed the clinical evidence of record, as well as the Veteran’s statements, and both concluded that the Veteran’s asthma clearly and unmistakably existed prior to his active duty. In making this determination, the Board acknowledges the Appellant’s March 2019 testimony, as well as her son’s, that the Veteran told them he experienced asthma only as a child or young man. The Board also acknowledges the January 2021 letter from Mr. [REDACTED], who purported to be the Veteran’s college roommate. Mr. [REDACTED] discuss how both he and the Veteran were scholarship athletes on the basketball team in 1960-61. Mr. [REDACTED] states that he “do[es] not recall [the Veteran] having any respiratory issues that would cause the coach to not play him.” He further stated that he did not recall the Veteran “suffering any breathing problems,” while they were roommates. Neither the Appellant’s testimony nor Mr. [REDACTED] statements are competent medical evidence. Further, the Veteran’s own statements during his active duty, during the Medical Board proceedings, and during the March 1971 VA examination all contradicted these assertions. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by a veteran). The Veteran repeatedly endorsed severe asthma attacks as a child and occasional asthma attacks thereafter. As such, the Board assigns the March 2019 testimony and January 2021 letter no probative weight insofar as they concern whether the Veteran’s asthma pre-existed his active duty. Regarding whether there is clear and unmistakable evidence that the Veteran’s pre-existing asthma was not aggravated, again, the only competent medical opinions of record that address this question are the Medical Board and the December 2020 VA examiner. On both occasions, the respective medical professional(s) determined that there is clear and unmistakable evidence that the Veteran’s pre-existing asthma was not aggravated by or during his active duty. Significantly, the December 2020 VA examiner observed that the clinical findings obtained in 2014 showed that there were no physical manifestation of asthma and that the Veteran’s asthma was quiescent. Thus, there was no permanent, chronic worsening. In this, and in other cases, the Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The only probative opinions of record are those of the in-service Medical Board and the December 2020 VA examiner, which are negative to the Veteran’s claim. The Board finds that these opinions are highly probative. Consequently, the Board finds that there is clear and unmistakable evidence that the Veteran’s pre-existing asthma was clearly and unmistakably not aggravated during his active duty. Thus, service connection for asthma is denied. 38 U.S.C. § 1111; 38 C.F.R. §§ 3.304, 3.306. All Other Claims Insofar as the Veteran is seeking service connection for the other disabilities at issue here as secondary to a respiratory disability, including asthma, the Board observes that service connection has not been granted for any respiratory disability, including asthma. 38 C.F.R. § 3.310. As such, service connection on secondary basis to a respiratory disability, including asthma, is denied as a matter of law for right and left lower extremities, neck disability, right and left shoulders, back disability, and “clogged arteries.” The Veteran asserts his disabilities of the right and left lower extremities, neck, right and left shoulders, and back were incurred during service as a result of passing out/falling down and convulsing on the wooden deck of the ship on which he was stationed. According to the Veteran, this incident of passing out/falling down and convulsing was caused by his asthma. The Veteran’s service treatment records demonstrated two occasions on which he complained of and was treated for difficulty breathing, which was subsequently diagnosed as bronchial asthma on both occasions. However, on neither of those occasions did the Veteran report passing out, falling down, or convulsing. There was no indication that he was rushed to sick bay. Neither of the medical professionals who treated the Veteran on those two occasions reported that the Veteran passed out, fell down, or convulsed. Moreover, the in-service Medical Board that assessed the Veteran’s ongoing fitness for duty, thoroughly reviewed the evidence of record and clinical findings, but made no reference to the Veteran falling, passing out, or convulsing. The Veteran’s service treatment records are otherwise negative for incidents of falling down, passing out, or convulsing. The Board finds it is reasonable to expect that, if the Veteran passed out, fell down, and/or was convulsing on the wooden deck of a ship, there would be reference to or discussion of such an incident in the associated treatment records. Further, it is reasonable to expect that if the Veteran was medically discharged from military service due to asthma, passing out, falling down, and convulsing due to asthma would be an important aspect of the report by the Medical Board assessing the Veteran’s ongoing fitness for duty. No such reference or discussion appears in the Veteran’s service treatment records or Medical Board report. Consequently, the Veteran’s assertions are not credible evidence as to falling, passing out, and/or convulsing during his active duty due to asthma or for any other reason. Pursuant to this claim, the RO obtained an opinion from a December 2020 VA examiner as to whether the Veteran’s claimed disabilities were incurred in or due to his active duty. The examiner reviewed the evidence of record and ultimately rendered a negative etiological opinion. In support of this opinion, the examiner provided the following rationale: The [V]eteran is claiming injuries for the lower extremities, shoulders, back, neck, and clogged arteries. There are no specifics. It is clear from the records that there was no fall documented causing these various orthopedic injuries and clogged arteries. No convulsions were documented. None of these have a nexus in service, per the [service treatment records]. There is no evaluation for these conditions proximate to service. Asthma does not cause atherosclerosis. This is medical fact. It does not cause orthopedic injuries and there is no evidence of a significant fall in service causing orthopedic injuries. This is a unique perspective for a claim, without any medical evidence to suggest a relationship. There is absolutely no physiologic or anatomic mechanism by which asthma could cause or aggravate any of these conditions. This too is medical fact. Therefore, it is less likely than not that the [V]eteran’s asthma caused the [V]eteran’s bilateral knee, bilateral shoulder, back or neck conditions and clogged arteries. It is also less likely than not that any of the above-named conditions had their nexus in service. Beyond their lay assertions, neither the Veteran nor the Appellant submitted or identified evidence indicating that he fell, passed out, and/or convulsed during his active duty, or that the claimed disabilities were otherwise incurred in or due to his active duty. In this, and in other cases, the Board may not base a decision on its own unsubstantiated medical conclusions. Colvin, 1 Vet. App. at 175. The only probative opinion of record is that of the December 2020 VA examiner, which is negative to the Veteran’s claims. The Board finds that this opinion is highly probative. To the extent that the Veteran asserted that the disabilities of his lower extremities, back, and neck, as well as clogged arteries, were incurred in or due to his active duty, the Board finds his lay assertions as to the presence of lay observable symptoms (for example, pain) are considered competent evidence. However, as a lay person, the Veteran had not shown that he had specialized training sufficient to render etiological opinions, especially in the presence of other possibilities (i.e., post-service incidents, age, smoking). Accordingly, his and the Appellant’s assertions on such matters are not competent evidence because such a question requires medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). As the preponderance of the evidence is against the Veteran’s claims, the benefit-of-the-doubt rule does not apply. Accordingly, service connection for a right and left lower extremity disability, neck disability, right and left shoulder disability, back disability, and clogged arteries is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, 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.