Citation Nr: 21030120 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-32 150 DATE: May 17, 2021 ORDER Entitlement to service connection for a respiratory condition is denied. REMANDED Entitlement to service connection for residuals from a right eye injury is remanded. FINDING OF FACT There is no competent evidence showing that the Veteran has been diagnosed with a respiratory condition at any time during the appeal. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from October 1979 to October 1982. In March 2020, the Board of Veterans' Appeals (Board) remanded the issues of entitlement to service connection for residuals from a right eye injury and a respiratory condition for further development. Specifically, the Board instructed the regional office (RO) to schedule the Veteran for VA examinations pertaining to his claims. 1. Entitlement to service connection for a respiratory condition is denied. The Veteran contends that he has a respiratory condition that is related to asbestos exposure during his service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the preponderance of the evidence is against the claim, the claim must be denied. Id. Upon review of the evidence, the Board finds that entitlement to service connection for a respiratory condition is not warranted because the Veteran failed to meet the first requirement for a service connection claim, a current disability. See Shedden, 381 F.3d at 1166-67; Brammer v. Derwinski, 3 Vet. App. 223 (1992). An August 2020 treatment note from the Lummi Tribal Health Clinic indicates that the Veteran's pulmonary function tests (PFTs) were normal without evidence of obstruction and that there is no evidence of lung disease by asbestos exposure. The Veteran underwent a VA examination in February 2021, in which the examiner found that there is no diagnosis of a respiratory condition because there are no findings, signs, or symptoms to support a diagnosis. The examiner noted that the Veteran had hernia surgery in 2020 and reported pain with deep breaths. The Veteran also reported that he gets winded easily but walks three miles per day. However, the examiner noted the August 2020 treatment report, and as such, the Veteran did not have demonstrative lung disease at a healthcare appointment less than six months prior to his VA examination. The Board acknowledges that the Veteran testified that he uses an inhaler when he needs it, which is corroborated by his medical records from Lummi Tribal Health Center. See December 2019 Hearing Transcript; July 2020 Medical Treatment Record Government Facility. However, the last prescription was from December 2018. See id. While the Veteran believes that he has a current respiratory condition that is related to asbestos exposure during service, he has not shown that he has specialized training sufficient to render a competent medical diagnosis or opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The diagnosis of a respiratory condition is a matter requiring medical expertise to determine. As such, the Veteran's opinion as to the diagnosis of his respiratory condition is not competent medical evidence. Therefore, the Board finds the February 2021 VA examiner's opinion to be significantly more probative than the Veteran's lay assertions and submissions. See Sacks v. West, 11 Vet. App. 314, 317 (1998). The Board notes that while "pain" without an accompanying pathology can constitute a "disability" for VA purposes, there must be some evidence of functional impairment. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Here, the record does not reflect any evidence, to include lay statements, contending a respiratory condition manifested by pain with functional impairment. Accordingly, the Board finds that there is no evidence that the Veteran has a diagnosis of a respiratory condition nor is there evidence that the Veteran experiences functional impairment as a result of any pain. Thus, a current disability cannot be established. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § § 1131. In other words, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. Here, for the reasons set forth above, the overall evidence of record weighs against a finding of a respiratory condition at any time during the appeal period. At no time since the Veteran first filed a claim for service connection has a respiratory condition been shown. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (stipulating that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). In the absence of current disability, the evidence preponderates against the claim and there is no reasonable doubt to be resolved. The Board is grateful for the Veteran's honorable service, and this decision is not meant to detract from that service. However, given the record before it, the Board concludes that service connection for a respiratory condition is not warranted at this time. REASONS FOR REMAND 2. Entitlement to service connection for residuals from a right eye injury is remanded. Upon review of the record, the Board finds that the claim must be remanded for a new examination and etiological opinion. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim. The Veteran was afforded a VA examination in February 2021, in which the examiner found that the Veteran does not currently have an eye condition. The Veteran reported that he experiences eye pain and sensitivity to light. The examiner acknowledged a right eye abrasion in service but noted that it resolved and that the Veteran has a refractive error only. The Board notes that a Veteran may be service connected for pain when it reaches the level of functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (2018). As the examiner noted that the Veteran experienced eye pain but did not provide an opinion regarding functional impairment, remand for a new examination is warranted. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and likely etiology of his residuals from a right eye injury. The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination and this review should be acknowledged in the report. Based upon a review of the relevant evidence of record, the VA examiner should offer the following opinion: (a.) Obtain a detailed history of any and all diagnosed eye condition(s) and identify any currently diagnosable condition associated with the Veteran's right eye. If the Veteran does not have a diagnosable right eye condition, but has pain only, determine whether that pain causes functional loss of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). (b.) For all current and past diagnosed eye conditions, whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's residuals from a right eye injury had its onset in or is related to service, to include a 1981 corneal abrasion. The examiner must specifically address: The Veteran's STRs, which reflect multiple complains of right eye pain in 1981, including a diagnosis of corneal abrasion; and The Veteran's lay statements that he has had continued right eye pain since service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his report must be taken into account in formulating the requested opinion. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran an opportunity for an examination. If an in-person examination cannot be provided, consider other appropriate alternatives, such as a telehealth examination. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.