Citation Nr: 21015499 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-06 877 DATE: March 17, 2021 ORDER Entitlement to service connection for an upper respiratory condition is denied. REMANDED Entitlement to service connection for left knee disability is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had an upper respiratory condition at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for upper respiratory condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from July 1988 to July 1992. This case comes before the Board of Veterans’ Appeals (Board) on an appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office. In October 2018, the Board remanded the claims for service connection for right knee disability, left knee disability, and upper respiratory condition, all for additional development. While the case was in remand status, service connection was awarded for right knee disability; consequently, that issue no longer remains a claim in controversy. 1. Entitlement to service connection for an upper respiratory condition The Veteran contends he is entitled to service connection for an upper respiratory condition, to include chronic obstructive pulmonary disease (COPD). He claims that his respiratory condition was caused by constant inhalation of fumes and fuel during service. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by service. 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, 1167 (Fed. Cir. 2004). That the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Court of Appeals for Veterans’ Claims recently clarified the holding in Saunders; the CAVC reiterated that pain not rising to the level of functional impairment of earning capacity is not considered a current disability under VA law and regulations. See Wait v. Wilkie, No. 18-4349. The Veteran’s service treatment records indicate he was seen in August 1989 for nasal and chest congestion, where it was reported his lungs were clear, in August 1991 for an upper respiratory infection, in May 1992 for shortness of breath and chest pain, and in June 1992 he voiced complaints associated with active pulmonary tuberculosis or isoniazid (INH) toxicity, and was told to continue INH therapy. His separation examination in July 1992 is silent for any complaints of upper respiratory condition or COPD symptoms or diagnoses. Following service, the Veteran’s medical records were silent for any complaints of coughing, wheezing, nasal congestion, postnasal drip, tachypnea, or dyspnea, as well as diagnoses of any upper respiratory infections or COPD. In a February 2014 pulmonary note for his sleep apnea and snoring concerns, the examiner noted the Veteran’s lungs had good and equal air movement, he did not have a wheeze, and there were no mentions of an upper respiratory condition or COPD. The Veteran had a VA examination in June 2019 for his respiratory condition. The Veteran reported he had an upper respiratory condition including COPD. He said the onset of the COPD was in 2010, and that he has difficulty breathing, shortness of breath, wheezing, and coughing, and that it has progressively worsened. He also indicated that he can only walk about fifty feet before having to stop and rest. The examiner noted the Veteran did not currently have a diagnosis and that he was not currently taking any corticosteroid, inhaled medications, or antibiotics, and nor does he use an oral bronchodilator or require oxygen therapy. She also noted he had an x-ray done and it showed his lungs were normal. After reviewing the record, the examiner noted the instances of upper respiratory infections, nasal and chest congestion, sore throat, and complaints of coughing up blood in service, and how there were no complaints of upper respiratory infections after separation from service, opining that the claimed condition was less likely than not incurred or caused by service. She also addressed the Veteran’s claim of COPD. She indicated that COPD is a term used to describe progressive lung disease like emphysema, bronchitis, and asthma. While the Veteran is a smoker, which she noted as the leading cause of COPD, she said that there was no evidence in the records confirming a diagnosis of COPD. In June 2019, the Veteran underwent a private pulmonary function test. The results showed his spirometry was completely normal, there were no airflow restrictions, the lung volumes show a mild restrictive process, his diffusion capacity was normal, and there were no changes in the spirometry with bronchodilators. The examiner determined the results were unremarkable for the Veteran’s age and body habitus, and there was no specific evidence of COPD. Consequently, the Board finds that the evidence of record does not reflect that the Veteran had any of the claimed disorders. The Veteran is competent to report symptoms such as shortness of breath, wheezing, coughing, symptoms of an infection; however, he is not competent to diagnose a disability based on symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). The medical evidence simply outweighs his assertions. Therefore, based on the foregoing, the Board concludes that service connection for an upper respiratory condition to include COPD, is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for service connection. As such, the doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to service connection for left knee disability. The Veteran seeks service connection for his left knee disability. He claims it began in service and has since worsened. The Veteran’s claim for service connection for his left knee disability was remanded by the Board in an October 2018 decision. The remand instructions requested a new examination for determining the etiology and nature of his left knee disability, and attention was to be brought to the Veteran’s November 1991 treatment record indicating he was seen for left knee pain. The Veteran was provided a VA examination in June 2019. At this examination, the examiner provided the medical opinion that there was no evidence to show the Veteran has complained of left knee pain while in the military. The June 2019 VA examiner did not address the complaint of left knee pain in service, nor did it provide rationale in accordance with the Board’s remand directive. Therefore, the Board finds that there has not been substantial compliance with the remand directive, and remand is necessary again in order to properly develop the claim. Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate medical professional to determine the nature and etiology of the Veteran’s left knee disability. The claims file and a copy of this remand must be made available to the VA examiner for review. The examiner should provide the following opinion: Is it at least as likely as not (50 percent or greater probability) that any diagnosed left knee disability is related to or the result of the Veteran’s service? Attention is to be given to the November 1991 service treatment record indicating the Veteran was seen for complaints of left knee pain. (See STR-Medical). (Continued on the next page)   A complete rationale is requested for any opinion expressed. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Doerfler, Associate 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.