Citation Nr: 21039764 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-39 355 DATE: July 1, 2021 ISSUE Entitlement to service connection for a respiratory disability, to include bronchitis. ORDER Entitlement to service connection for a respiratory disability, to include bronchitis is denied. FINDING OF FACT The Veteran's respiratory disability, to include bronchitis is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disability, to include bronchitis have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from April 1951 to September 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran's claim for entitlement to service connection for bronchitis was originally denied in a rating decision from September 1978. That rating decision was not timely appealed, and it became final. The Veteran then applied again for entitlement to service connection for bronchitis, but a rating decision from February 1991 denied reopening the Veteran's claim. Again, that rating decision was not appealed. The Veteran then filed a claim for entitlement to service connection for chronic bronchitis in April 2016. A rating decision from July 2016 reopened the Veteran's claim but confirmed the previous denial. The Veteran filed a Notice of Disagreement (NOD) in August 2016, and he was issued a statement of the case in July 2017. The Veteran filed a VA Form 9 in July 2017, in which he requested a videoconference hearing. The Veteran was notified in April 2019 of his scheduled video conference hearing for May 2019. The Veteran then did not report for the videoconference hearing, and no explanation was received, nor was there a request from the Veteran to reschedule the hearing. As such, in a Decision from October 2019, the Board considered the hearing request withdrawn. That Board Decision also found that new and material evidence had been received to reopen the previously denied claim for entitlement to service connection for bronchitis. The Board recharacterized the claim as entitlement to service connection for a respiratory disability, to include bronchitis, and remanded the claim for additional development. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a Veteran makes a claim, they are seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The Veteran's claim then returned to the Board, but in a July 2020 Board Decision, it was again determined that additional development and adjudication was required. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The claim has since returned to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for a respiratory disability, to include bronchitis. The Veteran has claimed that his respiratory disability, to include bronchitis, is due to his active duty service. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran wrote in August 1978 that he has been diagnosed with bronchitis that he believes is due to his service. The Veteran's mother submitted a statement in September 1978 that the Veteran has bronchitis, which dates "back to his life in the service," and that "he had never had symptoms of the bronchial," before service. A statement from the Veteran submitted in January 1981 notes that his respiratory infections and bronchial disorders were from his time "on active duty in the U.S. Air Force." These statements were repeated in a November 1987 statement. The Veteran also submitted a statement in May 2016, where he wrote that his "bronchial condition first developed while I was on active duty with the USAF." He wrote that he was treated for the "condition when I was stationed in Great Britain in 1952 or 1953." He wrote that he had follow up respiratory problems while at the military hospital in Great Britain. In a Report of General Information from July 2016, the Veteran repeated those claims. These statements have also generally been argued by the Veteran's Representative. The Veteran is competent to report the symptoms he experiences, such as those associated with his respiratory disability. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Turning to the first criteria for entitlement to service connection, the Veteran's claims file incudes a VA examination from December 2016. During that exam, the VA examiner noted a diagnosis of a respiratory disability, chronic obstructive pulmonary disease (COPD). The examiner indicated that the Veteran did not have a current diagnosis of bronchitis. VAMC notes however indicate that the Veteran has a history of chronic bronchitis. As such, the Board finds that the Veteran's diagnosis of a respiratory disability, has been confirmed. 38 C.F.R. § § 3.303(a). Turning to the second criteria, the Veteran has claimed that he was diagnosis with respiratory disabilities while in service, to include bronchitis. The Veteran's service treatment records from April 1954 indicate a diagnosis of bronchitis and "possibly pneumonia." A record from the following day noted "acute bronchitis" along with "chest pains and coughing." A week later, the Veteran was given an x-ray that indicated he had "resolving pneumonia, right lower lobe," which was "less marked than on the previous examination." A further notation from August 1955 notes that the Veteran had a cold, with cough and occasional wheezing. The diagnosis listed was "bronchitis. The Veteran's separation exam notes that his lungs were normal, but indicated he had a history of "frequent upper respiratory infections" including in "1956 [being] hospitalized for pneumonia." Considering the frequent examples of respiratory disabilities from service, the Veteran has also met the second criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a). Turning to the final criteria, the Veteran's current disability must be causally or etiologically linked to his in-service treatments for respiratory disabilities. The Veteran's claims file includes a VA examination from December 2016. The Veteran was seen in person and his claims file was reviewed. After confirming the Veteran's diagnosis, the examiner noted the Veteran's in-service examples of respiratory disabilities, but also reports his "tobacco use beginning in 1952." The examiner then opined that the Veteran's respiratory disability was less likely than not due to his active duty service. The following rationale was provided: His respiratory condition is COPD that is at least as likely as not from a 64-year history of cigarette smoking. It is the opinion of this examiner that this Veteran's respiratory condition is less likely than not incurred in or caused by the bronchitis complaints/hospitalizations during service. The Veteran was also given a VA examination more recently in April 2021. The Veteran was not seen in person, although the examiner conducted a review of the available medical records. The examiner noted the Veteran's in-service treatment for respiratory problems, as well as his separation exam and the December 2016 VA examination report. The examiner then opined that the Veteran's respiratory disability was less likely than not due to his active duty service. The following rationale was provided: The Veteran's VBMS files and medical records were reviewed. He was in military service from April 1951 through September 1961. VA medical records provide the diagnosis of COPD. Veteran smoke cigarettes from 1952 until 2016 ... while the Veteran did have several respiratory illnesses documented in his STRs, including a hospital admission for pneumonia, these were all uncomplicated i.e. did not require intubation or prolonged hospitalization, did not required prolonged oxygen use, and fully resolved clinically within the anticipated period of time for recovery (he remained in service for 7 more years after his hospitalization). It is extremely unlikely that these illnesses resulted in any chronic lung condition and far more likely that the decades of tobacco use ... based upon reported 10-12 cigs/day that is documented through his medical record is the etiology for his current lung condition. As such, a negative etiological opinion was provided for by both VA examiners. There is no evidence that the VA examiners were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran's claims file contains no positive etiological opinions linking his respiratory disability to his active duty service. The Veteran has indicated that he received private treatment from Dr. F. and Dr. O.C. A statement signed by Dr. F. from August 1968 indicates that the Veteran had only been treated for a sinus infection in April 1964 and a urinary tract infection in November 1964. A respiratory disability is not mentioned. A statement from Dr. O.C. from July 1978 writes that the Veteran had been treated for "a respiratory condition" for "the past 6 weeks." An etiological opinion was not rendered, instead with the private physician just saying that the Veteran "should re-locate to a less humid environment." Associated records from Dr. O.C.'s private treatment facility do not indicate that the respiratory disability was related to his active duty service. In consideration of the above, the Board finds that the Veteran's current respiratory disability is not causally or etiologically due to his active duty service. The Veteran has frequently wrote that he has a respiratory disability, variously claimed as pneumonia and/or bronchitis, and that this was due to his active duty service. The Veteran's current disability has been confirmed by both VA examination and through further VAMC records. The Board has also confirmed that his service treatment records indicate a number of times that he was treated for either bronchitis and/or pneumonia. Having said that, private treatment records from Dr. O.C., do not include an etiological statement, and indicate that the respiratory disability had resolved after the 1970s when it was treated. This resolution was further noted by the April 2021 VA examiner, who noted that each of his in-service examples had no residual complications. Both the December 2016 and April 2021 VA examiner's provided negative etiological opinions, which considered the Veteran's in-service treatment history, instead likening the Veteran's respiratory disability to a long history of cigarette smoking. The Board has afforded these VA examinations significant probative weight, and no further positive opinions have been associated with the claims file. Thus, the Board finds that the Veteran's respiratory disability is not related to his active duty service, and that he has therefore not met the final criteria for entitlement to service connection. 38 C.F.R. §§ 3.303. In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.