Citation Nr: 21027919 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 15-10 913 DATE: May 7, 2021 ORDER Entitlement to service connection for a chronic obstructive pulmonary disease (COPD), claimed as shortness of breath, is granted. Entitlement to service connection for a peripheral vascular disease (PVD), claimed as bilateral leg cramps, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his COPD is etiologically related to service. 2. Resolving reasonable doubt in the Veteran's favor, his PVD is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for PVD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to August 1968. He appeals an October 2012 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for COPD and PVD. In May 2019 and November 2020, the Board remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. Service Connection A Veteran is entitled to VA disability compensation if there is a current disability resulting from personal injury or disease incurred in, or aggravated by, active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. COPD The Veteran initially filed his claim for service connection regarding shortness of breath. See May 2011 VA Form 21-526. Since, he has been diagnosed with COPD; thus, the first element for service connection is met. See February 2012 examination report. As a preliminary matter, the Board notes that the Veteran reported shortness of breath on his October 1966 induction Report of Medical History. See October 1966 Report of Medical History. However, on Report of Medical Examination on the same date, the certifying clinician indicated that the Veteran was normal upon clinical evaluation. See October 1966 Report of Medical Examination. As VA has not shown by clear and unmistakable evidence that any respiratory condition existed prior to service and was not clearly and unmistakably aggravated during service, the presumption of soundness attaches to the Veteran. See Wagner v. Principi, 370 F.3d 1089, 1092 (2004); 38 C.F.R. § 3.304(b). The Veteran was afforded a VA contract examination in February 2012. The examiner diagnosed the Veteran with COPD. See February 2012 examination report. The examiner opined that it is at least as likely as not that the current shortness of breath condition began with the shortness of breath treated during the Veteran's military service. The examiner based the positive opinion on the Veteran's October 1966 Report of Medical History, where he reported occasional shortness of breath of unclear etiology. Further, the examiner noted that the Veteran also reported shortness of breath at his August 1968 separation Report of Medical History. Id. In his October 2013 Notice of Disagreement (NOD), the Veteran referenced the February 2012 examiner's positive opinion. He essentially argues that there is a positive medical opinion of record; thus, he was wrongfully denied service connection for COPD. The Board agrees. The Board notes that the February 2012 examiner did not distinctly word their opinion to read that the Veteran's now diagnosed COPD was related to reported instances of shortness of breath while in service. However, after review of the medical evidence and an in-person interview with the Veteran, the examiner confirmed the Veteran's diagnosis of COPD. He did not diagnose any other respiratory condition that would result in the Veteran's shortness of breath other than his now diagnosed COPD. As such, the Board finds it reasonable to infer that the February 2012 examiner's positive nexus opinion relates the Veteran's claimed shortness of breath, now diagnosed as COPD, to his in-service complaints of shortness of breath. Particularly compelling is that the Veteran initially filed his claim for shortness of breath and was later diagnosed with COPD, which was confirmed by this examiner. As such, the Board finds that the February 2012 examiner provides the requisite medical nexus opinion linking the Veteran's COPD to his service. After reviewing the entire record and weighing the relevant medical opinions, the evidence for and the evidence against the Veteran's claim is at least in relative equipoise. Affording the Veteran the benefit of the doubt, the Board finds there is competent and credible medical and lay evidence of record connecting the Veteran's COPD to his service. Accordingly, the Board grants service connection for COPD. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. PVD The Veteran initially filed his claim for service connection for bilateral leg cramps. See May 2011 VA Form 21-526. Again, the Board notes that the Veteran reported leg cramps on his October 1966 induction Report of Medical History. See October 1966 Report of Medical History. However, on Report of Medical Examination on the same date, the certifying clinician indicated that the Veteran was normal upon clinical evaluation. See October 1966 Report of Medical Examination. Again, as VA has not shown by clear and unmistakable evidence that any leg cramp condition, to include PVD, existed prior to service and was not clearly and unmistakably aggravated during service, the presumption of soundness attaches. See Wagner v. Principi, 370 F.3d 1089, 1092 (2004); 38 C.F.R. § 3.304(b). The Veteran attended a February 2012 VA contract examination. The examiner documented the Veteran's description of pain throughout his thigh and calf area. He ultimately concluded the Veteran's diagnosis is much more likely to be PVD, which would account for his thigh and calf pain issues. See February 2012 examination report. As the Veteran has a diagnosis of PVD, the first element for service connection is met. The examiner opined that it is at least as likely as not that the Veteran's claimed leg cramp condition began during service. He cited to the Veteran's reported history of leg cramps in service on his August 1968 Report of Medical History at separation. See February 2012 examination report. Similar to above, the examiner did not word the opinion to uniquely state that the Veteran's PVD is etiologically related to his leg cramps reported in service. However, given that the examiner diagnosed the Veteran's longstanding history of leg pain and cramps as PVD upon examination, it is reasonable to infer that the examiner's opinion links the Veteran's leg cramps reported during service to his now diagnosed PVD. See February 2012 examination report. Particularly persuasive is that the Veteran initially filed his claim for leg cramps and was later diagnosed with PVD by the February 2012 examiner. Thus, the Board finds that the February 2012 examiner's opinion provides the requisite medical nexus linking the Veteran's PVD to his military service. After reviewing the entire record and weighing the relevant medical opinions, the evidence for and the evidence against the Veteran's claim is at least in relative equipoise. Affording the Veteran the benefit of the doubt, the Board finds there is competent and credible medical and lay evidence of record connecting the Veteran's PVD to his service. Accordingly, the Board grants service connection for PVD. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.