Citation Nr: 21030583 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 12-21 694 DATE: May 19, 2021 ORDER Service connection for a chronic respiratory disorder is denied. FINDINGS OF FACT 1. The Veteran served on active duty from April 1970 to January 1972. 2. A chronic respiratory disorder, diagnosed as asthma, chronic obstructive pulmonary disease (COPD), and restrictive lung disease (RLD), was not shown in service and is not causally or etiologically related to service. CONCLUSION OF LAW A chronic respiratory disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In July 2013, the Veteran testified at a Travel Board hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board of Veterans' Appeals (Board) remanded the appeal in December 2014 and, after further development, denied the appeal in September 2016. The Veteran appealed to the Veterans Claims Court. In January 2018, the Court issued a Memorandum Decision which vacated the Board's September 2016 decision and remanded the matter to the Board for action in compliance with the Memorandum Decision. Thereafter, in April 2019 the Board remanded the claim for additional development. There has been substantial compliance with the remand's directives and the Board will proceed with the appeal. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Next, a January 2021 hospital discharge summary was added to the file since the case was certified for appeal. It is unclear the origins of the evidence but it was received after the last RO review and did not include a waiver. Assuming that the evidence was added by VA, the Board has reviewed it and finds that the Veteran was hospitalized for shortness of breath and leg swelling. He underwent a cardiac catheterization and was discharged 4 days later. To the extent that the letter includes symptomatology of shortness of breath, increased use of an inhaler, and a diagnosis of asthma, the evidence is not relevant to the issue of whether his respiratory complaints are related to service as the records made no mention of active duty. Accordingly, the Board concludes that there is no prejudice in proceeding with consideration of this case without affording the RO an opportunity to review the evidence in question. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As to a current diagnosis, VA treatment records show a reported history of asthma, as well as treatment for a lung disorder with an albuterol inhaler. Further, a June 2013 VA treatment record noted a diagnosis of bronchial asthma and noted that he had been prescribed albuterol since a visit to the ER in February 2013. A June 2013 private treatment record indicated that the Veteran was diagnosed with asthma as an adult. No pulmonary function tests (PFTs) were completed. An April 2008 VA treatment note assessed "likely asthma." In a December 2014 VA examination, he was diagnosed with RLD and COPD. Therefore, a current respiratory disorder has been shown. As to in-service incurrence, service treatment records (STRs) show that the Veteran's lungs and chest were normal upon entrance onto active duty. Thereafter, he went to sick call numerous times with complaints of allergies and conjunctivitis that were related to dust and other environmental contaminants; however, no chronic respiratory disorder or any symptoms reasonably attributed thereto were reported. At the time of discharge, evaluation of the lungs and chest was normal. Therefore, a chronic lung disorder was not noted in the STRs. As the Veteran has asserted that in-service dust and environmental contaminants exposure caused his respiratory disorder and such exposure was acknowledged in the STRs, the Board will consider whether there is a medical nexus between active duty and current complaints. On this point, the evidence weighs against the claim. Of note, the VA medical opinions weigh against the claim that any currently diagnosed chronic respiratory disorder is etiologically related to service, to include the exposure to dust and other environmental contaminants. Specifically, a July 2012 VA examination report noted that the Veteran was diagnosed with RLD. The examiner opined that PFTs in June 2002 and August 2006 did not support a clinical diagnosis of asthma. Although the Veteran reported that he was not a smoker, the examiner noted that a November 2010 VA treatment record indicated that he quit smoking in 2000 after a 15 year history. The examiner opined that the sinus and chest congestion treated in service could have been cold or allergy-related. He further explained that sometime a person can have RLD associated with inhaled substances like dust; called Hypersensitivity Pneumonitis; however, the examiner reflected that the Veteran did not have this diagnosis, nor did he have any diagnosis associated with the inhalation of dust, sand, paint chips, or paints. The examiner reasoned that the Veteran did not have the classic alveolar destruction or honey-combing seen on radiological studies. Moreover, he did not have ground glass opacities, dense fibrosis, or chronic interstitial inflammation seen on radiological studies. The examiner concluded that the Veteran's RLD was not caused by service. In a March 2015 VA examination, a different examiner diagnosed RLD and COPD and opined that neither condition had its onset in service nor was otherwise related to service. The examiner explained that RLD was caused by progressive weight gain and the resultant increase in fat deposition on the chest wall and abdomen, which restricted lung volumes and decreased chest wall movement and excursions during breathing. The examiner opined that COPD was caused by the Veteran's history of smoking. The examiner further noted that previous assessments of asthma were based on the Veteran's subjective complaints, rather than objective evaluation. PFTs performed in March 2015, as well as previous tests, were consistent with RLD, not asthma. The examiner explained that patients with COPD were often treated with inhalers, but "this does not mean they have asthma." The examiner concluded that, "it is less likely as not (i.e., less than 50% of probability) that any current lung disorder is causally or etiologically related to active service over 40 years ago, to include exposure to environmental contaminants while in military service . . ." This evidence weighs against the claim. An August 2019 VA addendum medical opinion report (authored by the March 2015 VA examiner) stated that it was not at least as likely as not that the current asthma and COPD were caused by or related to the conceded inservice exposure to environmental contaminants. The clinician noted that asthma causes obstructive lung dysfunction on PFTs, and even if asthma in 2006 was conceded, the Veteran would have been more symptomatic requiring more frequent medical attention for respiratory symptoms; however, there were no documented visits for respiratory complaints. Additionally, the clinician indicated that from 1994 the Veteran was mainly treated with antihistamines for seasonal allergies; the first documentation of the use of inhaler for possible asthma was in 1997, which was 25 years after service. He was seen by a pulmonologist in 2008 for chest discomfort which started one year earlier. He denied wheezing, shortness of breath, cough, and phlegm. He was started on steroids at that time. The clinician concluded that the earliest manifestation of asthma was 2006. Also noted was that the Veteran smoked cigarettes for 26-28 years in addition to polysubstance (heroin and cocaine) abuse. An October 2012 chest CT scan showed minimal emphysema. The examiner concluded that it is more likely than not that the Veteran's respiratory symptoms were caused by chronic smoking. This evidence weighs against the claim and there is no medical opinion in favor of the claim. The Board finds that the examinations were adequate for evaluation purposes. Specifically, the examiners reviewed the claims file, interviewed the Veteran, and conducted physical examinations. There is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. Moreover, the examiners have the requisite medical expertise to render medical opinions regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Further, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiners' opinions to be of great probative value. The Board has considered the Veteran's lay statements that his chronic respiratory disorder, to include COPD, asthma and RLD, was caused by service, including environmental exposure during service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman, 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.