Citation Nr: 21022199 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-20 685A DATE: April 15, 2021 ORDER Entitlement to service connection for a respiratory disability is denied. FINDING OF FACT The Veteran’s does not have a respiratory disability that is related to service, or that was caused or aggravated by a service connected disease or injury. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1977 to January 1980. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan which, inter alia, denied service connection for asthmatic issues. In July 2013, the Veteran filed his notice of disagreement, and in April 2014, was issued a statement of the case and perfected his appeal to the Board. In December 2017, the Veteran appeared at a videoconference Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In April 2018, the Board remanded the Veteran’s claims for, among other things, service connection for asthma for a new VA examination. In June 2020, the Board, among other things, remanded the Veteran’s claim for a new VA examination to determine the etiology of any respiratory illness. For the reasons indicated in the discussion below, the examination that the Board instructed the agency of original jurisdiction (AOJ) to obtain was in fact obtained in August 2020, and is adequate for adjudication of the appeal. Thus, the AOJ complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2020, the RO denied the Veteran’s claim for entitlement to service connection for a respiratory illness, notifying the Veteran in a supplemental statement of the case. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (b). Respiratory disability The Veteran testified that he was told by a physician that his childhood asthma had returned, but stated that he never had childhood asthma, and if he had, he would not have been allowed to join the military. He testified that he was exposed to asbestos while living in World War II housing in Avanti, Italy for 2 years. The Veteran stated that he did not have any breathing difficulties prior to service, but has had them since service several times throughout the years. He also noted exposure to second-hand smoke during service. In a May 2019 statement in support of claim, the Veteran’s representative stated that the Veteran claimed that his respiratory disability was aggravated by his posttraumatic stress disorder (PTSD). The record contains diagnoses for multiple respiratory disabilities. Therefore, the Board has expanded the issues on appeal to include all respiratory disabilities, to include chronic bronchitis, and asthma consistent with the holding in Clemons, 23 Vet. App. 1. The Veteran’s December 1979 medical history report upon discharge indicates that the Veteran reported having shortness of breath related to cold weather. An October 2012 disability benefits questionnaire (DBQ) indicated that the Veteran had a diagnosis of chronic bronchitis. The Veteran reported a chronic cough and expectoration for the past 2 years, and shortness of breath with exertion. The Veteran reported having asthma as a child, but stated that he did not have symptoms after the age of between 13 to 15 years old. April 2013 VA treatment records indicate that the Veteran is being treated for moderate persistent asthma due to nighttime symptoms. The Veteran reported that cold air triggers his asthma. An August 2019 DBQ indicated that the Veteran believes he has chronic obstructive pulmonary disease (COPD) with restriction, and reported shortness of breath shortly after discharge between 1980 and 1983. However, the Veteran stated that he did not receive treatment until 2006 to 2008 when he was given breathing treatment in an emergency room. The Veteran stated that he was told by a physician that he had childhood asthma which reoccurred in adulthood, but disputes that finding stating that he never had childhood asthma. He reported shortness of breath when in hot weather. The examiner noted that he found no objective evidence of COPD or asthma upon examination or in records review. The examiner opined that the Veteran’s claimed respiratory disability was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, finding that there was no objective evidence of a respiratory disease or condition. The examiner noted that the Veteran had several bouts of viral upper respiratory illnesses such as colds and sore throats which resolved. The examiner stated that the problems in service do not signify a chronic condition, nor any aggravation of anything prior to service as well, and that all pulmonary testing shows no pulmonary condition. The examiner indicated that the reported symptoms and need for an inhaler are driven by the Veteran’s development of sleep apnea with a typical symptom of shortness of breath when awaking at night, and that his symptoms of shortness of breath are typical of any person who is sedentary and obese. The examiner concluded that there is no pulmonary condition or respiratory disability during service or after service. In an August 2020 VA examination report, the examining nurse practitioner (NP) opined that the Veteran’s respiratory illness is less likely than not (less than a 50 percent probability) proximately due to, or the result of a service connected disability. The NP stated that pulmonary function tests and chest x-rays do not show a respiratory condition, and that the Veteran was given respiratory inhalation treatments based on symptom reports only which have not been verified as due to the pulmonary system. The NP reported that there is no respiratory condition that objectively exists including asthma or chronic bronchitis, noting that the previous diagnosis was due to a symptoms report and given on a provisional basis which commonly occurs in the general population. He stated that it is not uncommon for a provider to provide an inhaler and a provisional diagnosis that is not correct, and indicated that the Veteran’s symptoms have been explained as due to non-compliance with sleep apnea treatment and body habitus. He also provided explanations for the Veteran’s cough and shortness of breath complaints. The NP reported that the Veteran’s symptoms when reviewed in light of the service treatment records and active duty from 30 years prior do not show a respiratory condition due to service, or secondary to service. He stated that asbestos exposure would have caused distinctive lung changes which are not apparent on x-rays and CT scans, and second-hand smoke exposure would not be causative of any substantial problems after service as the degree of exposure is mild and in the distant past. The NP also reported that there are no distinctive findings on the chest x-ray or pulmonary function tests which could be due to cigarette smoking or exposure. He concluded that any respiratory condition due to service would be easily seen at this point in time, but that there is simply no evidence of a respiratory condition that could be linked to service, or due to exposure to cigarette smoke or asbestos during service. For the following reasons, service connection for a respiratory disability is not warranted. While the August 2019 examiner opined that the Veteran’s respiratory disability was less likely than not (less than a 50 percent probability) incurred in or caused by service, the examiner based his opinion on the lack of evidence of a respiratory disease or condition. The Veteran’s October 2012 DBQ, alternatively, noted a diagnosis of chronic bronchitis, and VA treatment records indicate that the Veteran has received treatment for moderate persistent asthma. Therefore, the August 2019 examiner’s finding of no current diagnosis of a respiratory disability cannot be reconciled with the evidence of record that indicates a respiratory disability during the period on appeal. However, the August 2020 NP opined that the Veteran does not have a respiratory disability that is at least as likely as not (at least a 50 percent probability) related to service or due to a service connected disability, noting that according to the pulmonary function tests and chest x-rays, there is no evidence of a respiratory condition. The NP explained that the previous diagnoses were given on a provisional basis, stating that noncompliance with sleep apnea treatment and body habitus caused the Veteran’s symptoms. The NP provided a thorough rationale to support his finding that the Veteran did not have a respiratory illness, including as due to service or a service connected disability based on an accurate characterization of the evidence of record, thus his opinion is afforded significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary opinion in the evidence of record. Moreover, while the Veteran testified that he did not have breathing difficulties prior to service reporting that he has since suffered from them several times throughout the years, he did not indicate that he has experienced continuous symptoms in and since service. Therefore, neither the lay nor medical evidence suggests that the Veteran has a respiratory disability that manifested in service and has continued since service, or is otherwise related to service. The Board acknowledges the Veteran’s contention that his respiratory disability is due to service. While the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to testify as to complex medical questions such as the nature and etiology of a respiratory illness. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). The Veteran’s statements in this regard are therefore not competent. For the foregoing reasons, entitlement to service connection for a respiratory disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.