Citation Nr: 21026837 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-34 922A DATE: May 4, 2021 ORDER Entitlement to service connection for bronchitis is granted. REMANDED Entitlement to service connection for chronic fatigue is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a disability manifested as chronic pain of the bilateral extremities, claimed as bilateral extremity aches, is remanded. FINDING OF FACT The most probative evidence reflects that bronchitis was incurred in service and has continued to the present. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disorder, diagnosed as bronchitis, have been 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 in the United States Marine Corps from October 1973 to October 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veteran's Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). This claim was previously before the Board in October 2018, when it was remanded to afford the Veteran a VA medical examination for bronchitis and to gather identified VA medical records. Pursuant to the remand, the identified medical records were added to the Veteran's electronic claims file and the Veteran was provided an examination for his claim for bronchitis in August 2020. The Veteran's appeal has now returned to the Board for further appellate action. 1. Entitlement to service connection for bronchitis Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any disease initially 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). A layperson is competent to report on the onset and continuity of current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran's post-service medical treatment records include diagnoses of bronchitis, specifically in May 1977, November 1978, June 1979, December 1979, March 1980, and more recently in December 2019. As such, element (1) to establish service connection has been met. Concerning element (2), the Veteran asserts that his bronchitis resulted from his experience in service. The Veteran has stated that his bronchitis symptoms began after having to spend a night outdoors in the rain without a jacket during bootcamp. The Veteran provided that he had never experienced respiratory issues until after this event. The Veteran's service treatment record contains treatment for respiratory symptoms after the claimed in service event. In October 1973, February 1974, April 1974, and March 1975 the Veteran sought treatment for symptoms such as chest congestion and coughing. To this extent, element (2) to establish direct service connection has been established. The Veteran was provided with a VA examination in August 2020. The examiner opined that the Veteran does not demonstrate the symptomatology necessary for a diagnosis of "chronic bronchitis." The examiner stated that the Veteran does not now, and never has been diagnosed with a respiratory condition. However, the examiner also stated that the Veteran's medical file did include documentation of periodic treatment for bronchitis. Although the examiner concluded that the Veteran does not have a diagnosis of bronchitis, the examiner provided a nexus opinion that concluded the Veteran's treatment for symptoms is not related to his in-service event. The examiner did not address the etiology of the Veteran's bronchitis and did not consider the Veteran's lay statements in making the determination that no nexus exists between the in-service event and the Veteran's respiratory symptoms. To the extent that the VA examiner's rationale is incongruent with the service treatment records showing multiple incidents of reports of, and treatment for bronchitis, and bronchitis symptoms, the VA examiner's opinion is based on an inaccurate factual premise. Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). For these reasons, the medical opinion is given little probative value. The Veteran has maintained that he has experienced the symptoms of bronchitis since shortly after he began service until the present. His service treatment records contain multiple incidents of treatment for his symptoms. Further, treatment records post separation includes the same symptoms and diagnoses of bronchitis. The Veteran's medical records include a diagnosis of bronchitis in May 1977. The Veteran sought treatment for bronchitis symptoms in November 1977. In November 1978, June 1979, December 1979, and March 1980 the Veteran again received a diagnosis of bronchitis. The Veteran contends his symptoms continued and these symptoms are documented in his medical records beginning recently in January 2014, August 2016, May 2018, and April 2019. In December 2019 the Veteran was diagnosed and treated for a bronchitis flare. The Veteran reliably maintains that his bronchitis symptoms have been consistent since 1973. The Board further observes that while the Veteran is diagnosed with a disease that is not one of the chronic diseases identified under 38 C.F.R. §§ 3.307, 3.309(a), there is nonetheless significant circumstantial evidence linking the Veteran's claimed disorder to service, including his credible statements of continuity of symptomatology. In light of above, the Board finds that the evidence of record is at least in relative equipoise concerning whether the Veteran's bronchitis is a result of the Veteran's active service. In such cases, the Court has held, and VA laws provide, that service connection is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for chronic fatigue is remanded. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for a disability manifested as chronic pain of the bilateral extremities, claimed as bilateral extremity aches, is remanded. The Veteran asserts that his in-service exposure to contaminated water while stationed at Camp Lejeune contributed to his chronic fatigue, hypertension, and disability manifested as chronic pain of the bilateral extremities. If a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of § 3.307(a)(7), the following diseases shall be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f). The Board concedes that the Veteran was stationed at Camp Lejeune for more than 30 days during his active duty. As the three disabilities claimed by the Veteran are not among the diseases that VA presumes are caused by exposure to contaminated water at Camp Lejeune, presumptive service connection is not available to the Veteran. Nevertheless, even if a claimant is not entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). Although no diagnosis has been rendered for the Veteran's claim of chronic pain of the bilateral extremities, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and that "pain alone can serve as a functional impairment and therefore qualify as a disability." Therefore, in light of Saunders, a remand is necessary. The examiner is directed to report the Veteran's current symptomatology and to address whether the Veteran's reported joint and muscular pain results in any functional impairment. Saunders, 886 F.3d at 1362. Lastly, updated VA and private treatment records pertaining to the issues remanded, herein, must be obtained and associated with the file so that the subsequent VA examiner(s) can provide opinions based on the Veteran's complete disability picture. The matters are REMANDED for the following action: 1. The AOJ must obtain and associate with the file all updated records of VA treatment pertaining to the Veteran. 2. Thereafter, the AOJ must transfer the Veteran's electronic file to an appropriate VA clinician to determine the nature and etiology of his chronic fatigue, hypertension, and chronic pain of the bilateral extremities, claimed as bilateral extremity aches. The examiner is requested to review all pertinent records associated with the file, including the Veteran's service treatment records, post-service medical records, and lay statements. Thereafter, the examiner should address the following: (a.) Provide an opinion addressing whether the Veteran's chronic fatigue is at least as likely as not (50 percent probability or greater) related to service, to include his exposure to contaminated water while stationed at Camp Lejeune. (b.) Provide an opinion addressing whether the Veteran's hypertension is at least as likely as not (50 percent probability or greater) related to service, to include his exposure to contaminated water while stationed at Camp Lejeune. (c.) Provide an opinion addressing whether the disability manifested as chronic pain of the bilateral extremities is at least as likely as not (50 percent probability or greater) related to service, to include his exposure to contaminated water while stationed at Camp Lejeune. (d.) If the Veteran's reported pain is not found to be a manifestation of any disability (service-connected or otherwise), please describe the functional impairment resulting from such pain and whether it is at least as likely as not (50 percent probability or greater) related to service. In doing so, the examiner is requested, to the extent possible, to describe any and all functional impairment stemming from the Veteran's chronic pain of the bilateral extremities, on his ability to stand, walk, run, stoop, lift objects, bend, and maintain balance. In addressing the above, the examiner is on notice that the Veteran is competent and credible to report experiencing pain and such evidence may not be discounted for the sole reason that it is not reflected in the medical evidence. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definite opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing and answer to the particular question. Thereafter, the AOJ must readjudicate the issues remaining on appeal. If any benefit is not granted to the fullest extent, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.