Citation Nr: 21031196 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-62 193 DATE: May 20, 2021 ORDER Entitlement to service connection for a lung disability is denied. REMANDED Entitlement to a rating in excess of 20 percent for right elbow limitation of supination/pronation is remanded. Entitlement to a rating in excess of 10 percent for right elbow limitation of extension is remanded. Entitlement to a compensable rating for right elbow limitation of flexion is remanded. Entitlement to a rating in excess of 20 percent for right radial nerve neuropathy is remanded. FINDING OF FACT The Veteran's lung disability did not manifest during active service, and there is no indication that the disability is otherwise related to his active service. CONCLUSION OF LAW The criteria for service connection for a lung disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1974 to April 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2017 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection Lung Disability The Veteran maintains that his current lung disability was incurred in or is related to his active service. In a January 2018 statement, he stated that he did not have pain in his chest until he had surgery for his service-connected right elbow and a peripherally inserted central catheter (PICC) line was inserted to treat a staph infection with intervenous antibiotics. During the March 2021 Board hearing, his representative indicated that he believed his chronic obstructive pulmonary disease (COPD) was due to being a diesel mechanic during service and being exposed to asbestos from the barracks. The Veteran's service treatment records are unremarkable for any complaints, treatment, or diagnoses related to a lung disability. At his January 1977 separation examination, his chest and lungs were normal. A chest X-ray was negative. On his Report of Medical History, he denied experiencing shortness of breath. Post service, a December 2013 VA treatment record indicated that the Veteran had no history of lung disease. He reported that he smoked one pack per day down from two packs per day using vapor cigarette and had a 42-year history of smoking. The physician discussed with him the increased risk of cardiovascular/lung disease and cancer associated with tobacco use and offered cessation classes and nicotine replacement products, which the Veteran refused. In February 2015, he underwent pre-operative screening procedures. A chest X-ray showed chronic scarring in the right lung apex. In February 2016, a chest X-ray revealed mild hyperinflation, which was noted to be an early change of smoking-related lung disease. It was also noted that there appeared to be a stable small nodule in the right upper long, which was likely benign. In March 2016, a CT scan showed multiple lung nodules as well as a poorly visualized infrahilar lesion and emphysema. The clinician contacted the Veteran and informed him of the results. The Veteran asked whether the findings might be caused by a PICC line that he received in the past. The clinician explained that the major causes of lung nodules included infection, inflammation, or neoplastic causes. The Veteran stated that he was an active smoker with a 45-year history of smoking. The clinician stated that his smoking was the most likely cause but that he would need further evaluation. In April 2016, a CT scan of the chest revealed a mildly enlarged right hilar lymph node; small pericardial effusion; and advanced emphysematous changes. The physician noted that the Veteran had a 90-pack year history of smoking with emphysematous changes presenting with multiple pulmonary nodules. Smoking cessation was discussed. It was also noted that he had been diagnosed with COPD without a pulmonary function test. A February 2017 CT scan revealed a new nodule in the left lower lobe, and unchanged lung nodules in the right lung base. The clinician informed the Veteran of the results and the Veteran asked if it anything to do with his surgery. He was informed that it was unlikely related to the surgery and could be related to his smoking history. In this case, the Board finds the most probative evidence weighs against the claim. The evidence does not indicate that the Veteran's lung disability manifested during active service. After service, the first documentation of a lung disability occurred in February 2015, more than 37 years after service. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes that there is no evidence that the Veteran was exposed to asbestos during service or that his current lung disability is related to asbestos exposure. Although he was a track vehicle mechanic during service and exposure to diesel is consistent with his service, there is no evidence that his current lung disability is related to diesel exposure. In addition, there is no evidence that his current lung disability is related to the PICC line he received during surgery for a service-connected right elbow disability. In this regard, his treatment providers indicated that it was unlikely related to the surgery and more likely related to his smoking history. The evidence indicates the Veteran smoked since 1971, which would include during service; however, for claims received by VA after June 9, 1998, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300(a). The Board notes that the Veteran was not provided with a VA examination in conjunction with the claim for service connection. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, however, the evidence does not indicate that the Veteran's lung disability may be associated with his service. See McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). There were no complaints of any lung problems during service. At his separation examination, his lung and chest were noted as normal and a chest X-ray was negative. Furthermore, there is no medical evidence otherwise linking his current lung disability to service. Accordingly, the Board finds that a VA examination is not warranted. The Board has also considered the lay evidence of record. The Veteran is competent to describe what he has personally observed or experienced. However, the ultimate questions of diagnoses and etiology in this case extend beyond an immediately observable cause-and-effect relationship and are beyond the competence of lay witnesses. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a lung disability is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. During the March 2021 Board hearing, the Veteran stated that his service-connected right elbow disabilities had worsened since they were last examined. Therefore, the Board finds that a remand is necessary for additional VA examinations. In addition, any current outstanding VA and private treatment records should be obtained. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected right elbow disabilities, i.e., limitation of supination/pronation, limitation of extension, and limitation of flexion. The claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes, to specifically include range of motion in active motion, passive motion, weight bearing, and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disability on the Veteran's ordinary activity, including his ability to work. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran's functional loss during flare-ups and offer range of motion estimates based on that information. 3. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected right radial neuropathy. The claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes and describe the effects of the service-connected disability on the Veteran's ordinary activity, including his ability to work. 4. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 5. Then, readjudicate the issues remaining on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.