Citation Nr: 21015943 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-38 061 DATE: March 18, 2021 ORDER Entitlement to service connection for a respiratory disorder other than chronic vasomotor rhinitis (claimed as shortness of breath and diminished lung capacity), to include sinusitis, and as due to exposure to herbicide agents, is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a chronic respiratory disorder. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The issue was twice before the Board in September 2018 and September 2020 and remanded. The September 2020 remand mandated that the RO request that the Veteran provide the names and addresses of all clinicians who have provided treatment for his claimed respiratory disorder and afford him a VA medical opinion. In September 2020, the RO requested that the Veteran provide information regarding any treatment at VA or private facility. In September 2020, an adequate VA medical opinion was provided. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The disorders at issue are not considered chronic diseases for VA compensation purposes. As such, the provisions of 38 C.F.R. § 3.303(b) for chronic diseases are not for application in this case. 38 C.F.R. §§ 3.303(b), 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran has claimed symptoms of shortness of breath and diminished lung capacity due to Agent Orange exposure in Vietnam. In-service herbicide exposure has been conceded. Initially, the Board notes that although respiratory cancers including lung cancer are on the presumptive list of diseases associated with herbicide agent exposure under 38 C.F.R. § 3.309(e), the Veteran is not claiming service connection for respiratory cancer, nor is there any evidence of such in the record. The service treatment records document complaints of shortness of breath with exertion and sinus congestion. See, e.g., August 1969, February 1970, June 1970 service treatment records. However, chest x-rays were normal, and there is no evidence of diagnosis or treatment for any lung or respiratory disabilities during active service. The Veteran was afforded a VA examination in connection with his claim for entitlement to service connection for a respiratory disorder in July 2020. The examiner noted that in April 2013 the Veteran claimed shortness of breath and diminished lung capacity due to herbicide exposure during active service. However, the medical records following his statement in 2013 do not report shortness of breath. In October 2013, six months later, a primary care note states that “he is physically active, bikes 3-5 times a week and walks everywhere he can.” It was noted that he had no exercise limitations and could easily walk four miles without shortness of breath. Additional primary care notes in January 2017 and November 2018 indicated that the Veteran continued to exercise regularly, including with a bicycle and stationary bike, with no chest pain or shortness of breath. It was also noted that he had good exercise tolerance. Pulmonary function testing in September 2019 revealed a mild obstructive defect with significant response to bronchodilator. He, however, had normal lung capacity and there was no follow-up evaluation. No pulmonary condition was diagnosed. The examiner found that there was no functional impact due to any respiratory condition. See July 2020 VA examination report. The examiner noted that he has never been treated for any chronic lung disorder and the medical history, especially the notes from his primary care physicians described above, “are in sharp contrast” to his claims in April 2013. Id. The July 2020 examiner opined that the claimed disorder is less likely than not incurred in or caused by military service, explaining that the Veteran does not have diminished lung capacity and there is no underlying clinical diagnosis for shortness of breath. Id. The claim was remanded in September 2020 for an additional VA medical opinion. The Board found that the July 2020 examiner failed to address the June 2015 VA treatment records indicating recurrent episodes of sinusitis/upper respiratory infections. The examiner did not state whether the Veteran has a current diagnosis of sinusitis. See September 2020 Board decision. Another VA medical opinion was obtained in September 2020. The examiner stated that the evidence does not support a diagnosis of any known respiratory disorder. He observed that the Veteran has been reported to be physically active without shortness of breath. His measured pulmonary function is normal or above normal. The examiner acknowledged the VA treatment records noting episodes of sinusitis, including in June 2015, but stated that such records do not document actual observed and diagnosed episodes of sinusitis. Rather, it appears that the mentions of sinusitis reflect the medical history as reported by the Veteran. Furthermore, the examiner opined that even assuming the Veteran still had episodes of sinusitis, it is less likely than not that such episodes are related to service. He explained that there is no toxicologic or epidemiologic evidence supporting a causal relationship between Agent Orange exposure and the development of sinusitis. See September 2020 VA addendum medical opinion. The Board finds the examiner’s conclusion most probative against a finding that the Veteran has a diagnosis of a respiratory disorder, currently or at any time during the appeal period. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) The evidence of record does not establish a current diagnosis of a respiratory disorder, including sinusitis, or a diagnosed disability manifested by shortness of breath. Service connection is not for application where there are symptoms without an associated clinical diagnosis. A current disability must be shown by competent evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). Therefore, in the absence of proof of a present disability or pathology causing shortness of breath, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has a disability for which benefits are claimed. While the Veteran may report on symptoms, he is not competent to diagnose the underlying disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board is aware that service connection may be granted for disability on the basis of pain when it reaches a level of a functional impairment of earning capacity, but such has not been shown by competent evidence here. See Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018); see also Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). The Veteran in an October 2020 denied telling the VA doctors that he can walk four miles without shortness of breath. He states that he does try to stay physically active by riding a bicycle a few times a week, weather permitting. He also states that he tries to walk often and rarely uses elevators, but his walks seldom or never exceed three-quarters to one full mile. He also alleges that when doing so, he has shortness of breath, increased heart rate and usually becomes sweaty and clammy. See October 2020 correspondence. Although competent to report his symptoms, the Veteran, as a layperson, is not competent to diagnose a respiratory disorder or to determine the etiology of his symptoms. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Clyburn v. West, 12 Vet. App. 296 (1999). Furthermore, the Board finds the Veteran’s statements not to be credible, as they are inconsistent with the contemporaneous record and with objective medical evidence. The VA treatment records consistently indicate that the Veteran is physically active and does not experience shortness of breath upon exertion. See, e.g., VA treatment records dated November 2013 (noting a past medical history of occasional sinusitis but that the Veteran reports he is physically active, bikes 3-5 times per week and has no exercise limitations); April 2014 (denies shortness of breath, states he remains active and bikes several miles 3-5 times per week); December 2019 (no complaints, continues to ride his bike for exercise without restriction); January 2020 (reporting physical activity including walking and riding his bike, limited by back pain). In addition, the VA treatment records consistently show that his lungs are clear, respiratory function is normal and the September 2019 pulmonary function test found normal lung volumes and normal diffusion. As stated above, the notations in the VA treatment records of occasional episodes of sinusitis appear to be merely a recitation of the medical history as related by the Veteran rather than an actual clinical diagnosis. Based upon review of the evidence, the Board finds the Veteran’s claim for service connection for a respiratory disorder, claimed as shortness of breath and diminished lung capacity, must fail. The medical evidence of record does not indicate a current diagnosis of this condition. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statutes governing veterans’ benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Because the evidence shows that the Veteran has not had a current disability during the pendency of the appeal, the Board concludes that service connection is not warranted, and no discussion of the remaining elements is necessary. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (the absence of any one element will result in denial of service connection). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for a respiratory disorder, and the claim must be denied. As the preponderance of the evidence is against the claim for service connection for a respiratory disorder, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. N. Stevens Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, 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.