Citation Nr: 21020062 Decision Date: 04/06/21 Archive Date: 04/06/21 DOCKET NO. 10-33 875 DATE: April 6, 2021 ORDER Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), is denied. REMANDED Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT The evidence of record does not indicate that the Veteran has been diagnosed with a respiratory disability, to include COPD. Further, the Veteran has not been shown to experience any symptoms, including pain related to the claimed disability that causes functional impairment of earning capacity. CONCLUSION OF LAW A respiratory disability was not incurred in or aggravated by service and is not attributable to service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1997 to August 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, the Veteran was afforded a VA Central Office Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran’s electronic claims folder. Entitlement to service connection for a respiratory disability, to include COPD. The Veteran contends that he is entitled to service connection for a respiratory disability because he was diagnosed with COPD during service and still suffers from it. See Board Hearing Transcript, p. 11. For the reasons explained below, the Board finds that entitlement to service connection is not warranted. In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service the so called ‘nexus’ requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Congress has specifically limited entitlement to service connection for disease or injury to cases where such have resulted in a disability. See 38 U.S.C. § 1110. Hence, in the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). April 2003 STRs indicate that the Veteran reported a history of respiratory infections. The clinician noted that the Veteran’s lungs wheezed. He was diagnosed with COPD and prescribed Albuterol and recommended to quit smoking. In June 2003, the Veteran reported that he was diagnosed with COPD and used an inhaler. A pulmonary consultation note indicates that the Veteran had been diagnosed with COPD. The consultation note also indicates, “it does not look like asthma. His PFTs are normal and he never had asthma as a child and does not have allergies. I encourage him to get off [cigarettes].” An undated handwritten note indicates that the Veteran complained of symptoms of shortness of breath with exertion and was diagnosed with bronchitis. March 2004 service treatment records indicate that the Veteran may have complained of symptoms of shortness of breath, but no diagnosis was noted. The Veteran was afforded a VA examination in January 2019 where the examiner noted that the Veteran had a normal lung exam and normal pulmonary function test (PFT) results. “While on active duty, the [Veteran] had a pulmonary work up where the physician stated no asthma and no COPD]. The [V]eteran does not have a diagnosed condition so the condition is less likely than not related to his military service.” However, in June 2019, the Board remanded the matter for an addendum opinion because the examiner did not address the favorable April 2003 STR note which showed that the Veteran was diagnosed with COPD and prescribed an inhaler and the June 2003 pulmonary consultation note which indicates that the Veteran was diagnosed with COPD. In a November 2020 addendum medical opinion, the examiner opined that it was less likely than not that the Veteran suffered from a respiratory disability. The examiner addressed the Veteran’s service treatment records which referred to a COPD diagnosis. “The general provider diagnosed COPD based upon wheezing. Wheezing is a symptom and is not diagnostic of COPD. The veteran was referred for a pulmonary consult . . . [t]he pulmonologist evaluated the patient 6/5/2003 and concluded no asthma, allergies or COPD.” The examiner also stated that the Veteran’s claims folder was “silent for any chronic respiratory condition.” Private and VA treatment records are also silent for any respiratory disabilities. Based on the foregoing, the Board finds that there is no competent evidence of a diagnosis of a respiratory disability and therefore the claim must be denied. In that regard, the Board credits the service treatment records which show that although the Veteran was suspected of having COPD, following a PFT, the Veteran was found to have no diagnosis of COPD or any other respiratory disability. There is no evidence that the Veteran has undergone any further PFTs to contradict this finding. Further, the Board credits the November 2020 VA examiner’s opinion which also found that the Veteran does not have a diagnosis of respiratory disability. The VA examiner formed the opinion after reviewing the Veteran’s electronic claims folder and noting the Veteran’s lay statements. The examiner also addressed potentially favorable evidence, but ultimately concluded that the Veteran did not suffer from any respiratory disability. The Board assigns probative value to the November 2020 medical opinion and the absence of any diagnosis of a respiratory disability in any private and VA medical treatment records as well. The Board is cognizant of the holding in Saunders v. Wilkie which stated that, where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, this case is distinguishable from Saunders because the Veteran has not alleged symptoms of pain. And more significantly, there is no evidence that any alleged respiratory symptoms cause functional impairment of earning capacity. The Board acknowledges the Veteran’s position that he suffers from a respiratory disability based on his reported symptoms. As is the case with lay statements, the Veteran is competent to report symptoms which are observable through his senses, such as snoring and waking up feeling tired, etc. See Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to provide an etiological opinion regarding a complex disability such as a respiratory disability, including COPD, which may be assessed through medical tests such as PFTs. Given that the Board has found the unfavorable November 2020 VA medical opinion to be the most probative evidence of record, the preponderance of the evidence is against the Veteran’s claim for service connection, and the claim must be denied. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. §5107. REASONS FOR REMAND In June 2019, the Board remanded the matters to obtain medical opinions regarding the etiologies of the claimed elbow, shoulder and knee disabilities. In November 2020 medical opinions, the examiners opined that the claimed disabilities were less likely than not related to service. The examiners reasoned that the disabilities were acute only during service; there was no evidence of chronicity of care and the symptoms were subjective only. The opinions are inadequate for rating purposes. They lack adequate rationale and do not address objective evidence of current disabilities. The opinions are non-responsive to the Board’s remand directives. See Stegall v. West, 22 Vet. App. 268 (1998). Therefore, the Board finds that a remand is necessary to obtain adequate addendum medical opinions. The matters are REMANDED for the following action: 1. Obtain addendum opinions from the November 2020 VA examiners (or appropriate medical professionals) regarding the etiology of the Veteran’s elbow, shoulder and knee disabilities. A copy of the Veteran’s electronic claims folder, including a copy of this remand must be made available to the examiner. The examiner is asked to review the relevant evidence and provide an opinion on the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from bilateral elbow disabilities that were incurred in or otherwise related to service. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from bilateral shoulder disabilities that were incurred in or otherwise related to service. (c) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from bilateral knee disabilities that were incurred in or otherwise related to service. The examiner’s attention is directed to the following: (a) June 2005 Report of Medical History where the Veteran reported that his knees pop when standing up or down; and (b) the Veteran’s lay statements that he injured his knees during service and now suffers from loss of cartilage in his knees. A complete rationale for all opinions reached must be provided. These matters are being returned because the December 2020 medical opinions lacked adequate supporting rationale. Citation to appropriate medical principles would be helpful in the Board’s analysis. 2. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Baskerville, LaRita 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.