Citation Nr: 21032430 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 19-37 889 DATE: May 27, 2021 ORDER Entitlement to service connection for chronic progredient diffuse alveolar damage, claimed as due to herbicide exposure, is denied. FINDING OF FACT Chronic progredient diffuse alveolar damage has not been shown to exist at any time since the filing of this claim or contemporaneous to that. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for chronic progredient diffuse alveolar damage. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to June 1970, including in Vietnam. His decorations include the Combat Action Ribbon. In September 2020, the Board recharacterized the Veteran's claims for service connection for chronic progredient diffuse alveolar damage and pulmonary fibrosis more generally as for a respiratory disability, inclusive of these conditions. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). And, rather than immediately deciding the claims, the Board instead first remanded them back to the local Regional Office (RO) for supplemental medical comment concerning the etiology of this claimed respiratory disability especially in terms of whether related or attributable to the Veteran's military service. This requested additional medical opinion was obtained later in September 2020 and, after considering it, the RO granted service connection for pulmonary fibrosis in an October 2020 rating decision. The RO initially rated the pulmonary fibrosis as 60-percent disabling as of June 6, 2017, then as 30-percent disabling as of May 22, 2018, again as 60-percent disabling as of July 3, 2018, and again as 30 percent disabling since October 3, 2019. So, the RO "staged" the rating. See Fenderson v. West, 12 Vet. App. 119 (1999). If the Veteran disagrees with these initial ratings and/or effective dates, he must separately appeal these "downstream" issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Conversely, on remand, the claim for service connection for chronic progredient diffuse alveolar damage continued to be denied, so it is again before the Board. However, as will be discussed, there simply is no probative evidence of record indicating the Veteran has received a diagnosis of this condition. Therefore, he has failed to establish he has chronic progredient diffuse alveolar damage, much less because of his military service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there can be no valid claim). At the very least, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection 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 has resolved). Here, though, there simply is no suggestion the Veteran has chronic progredient diffuse alveolar damage or that he has at any time relevant to this appeal. Moreover, there equally is not suggestion this condition began during his service or is otherwise related or attributable to his service. To the contrary, his post-service treatment records are grossly unremarkable for any diagnosis or treatment of chronic progredient diffuse alveolar damage. See, e.g., April 2018 VA Examination (no objective evidence to support a diagnosis of chronic progredient diffuse alveolar damage); September 2020 VA Supplemental Medical Opinion (no evidence of diagnosis of chronic progredient diffuse alveolar damage). Additionally, this is not the type of disability that may be confirmed by lay evidence, alone. Whether lay versus medical evidence is needed to support a claim is determined on a case-by-case basis and dependent on the type of condition being claimed, including in terms of whether simple versus complex. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); 38 C.F.R. § 3.159(a)(1) and (a)(2); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds that the VA treatment and examination records unambiguously show that no such disability presently exists or has at any time since the filing of this claim or proximate to that, much less because of the Veteran's military service. And these findings were based upon objective medical evaluation and diagnostic testing that is specific to making this important determination, also consideration of his reported history, and a review of the medical and other evidence in his claims file. Accordingly, the Board finds that the preponderance of the evidence is against this claim for service connection for chronic progredient diffuse alveolar damage. At no time relevant to this claim has a diagnosis of this disability been established. A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). Since, for the reasons and bases discussed, the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and this claim of entitlement to service connection for chronic progredient diffuse alveolar damage is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Mukherjee 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.