Citation Nr: 21040774 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-05 230 DATE: July 7, 2021 ORDER Service connection for a lung condition, claimed as residuals of recurrent pneumonia, to include emphysema, chronic pulmonary disease (COPD), and pulmonary fibrosis, is denied. Service connection for depression is denied. FINDINGS OF FACT 1. The Veteran's lung condition, claimed as residuals of recurrent pneumonia, to include emphysema, COPD, and pulmonary fibrosis, is not shown to be causally or etiologically related to any disease, injury, or incident during service. 2. The Veteran's depression is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a lung condition, claimed as residuals of recurrent pneumonia, to include emphysema, COPD, and pulmonary fibrosis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for depression have not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1973 to February 1974. This matter was previously before the Board of Veterans' Appeals (Board) in May 2019 when the issues were remanded in order to afford the Veteran with VA examinations. In accordance with the May 2019 Board remand, VA examinations were conducted for both issues on appeal in January 2020. Further development having been completed; the matter is once again before the Board. The issues of service connection for a lung condition, claimed as residuals of recurrent pneumonia, to include emphysema, COPD, and pulmonary fibrosis; and for depression will be denied, because the evidence does not show that either condition is related to the Veteran's service. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran must show: '(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 or aggravated during service' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for a lung condition, claimed as residuals of recurrent pneumonia, to include emphysema, COPD, and pulmonary fibrosis, is denied. The Veteran's contention has consistently been that he has residuals of recurrent pneumonia that is related to his service. Specifically, he contends that his current condition is related to treatment for pneumonia in-service on approximately January 31, 1974 while stationed at Castle Air Force Base (AFB), California. Although a July 2012 formal finding of unavailability concluded that clinical records from Castle AFB hospital were unavailable, for the period from January 1, 1974 to February 13, 1974, as noted in the May 2019 Board remand, the Veteran has been consistent in his contention that he was treated in January 1974 for pneumonia at Castle AFB hospital. For the following reasons, service connection is not warranted, and the claim will be denied. In the February 1974 report of medical history at service separation, the Veteran stated that he was in "good" health. The Veteran denied then having or ever having had chronic or frequent colds, shortness of breath, and pain or pressure in his chest. The Veteran checked "yes" to the question of whether he had ever been a patient in any type of hospital. He noted treatment for pneumonia at Castle AFB hospital. However, the Veteran did not indicate the type of treatment, other than that he was treated for pneumonia; he did not indicate the date of treatment; he did not indicate the duration of treatment; and he did not indicate the nature of treatment, to include whether it was inpatient or outpatient treatment. In the physician's summary and elaboration of all pertinent data, the examiner noted only a history of occasional leg cramps and stated that the Veteran denied all other significant medical or surgical history. The February 1974 report of medical examination shows a normal clinical evaluation of the Veteran's lungs and chest, and vascular system. The examiner noted only occasional leg cramps. The examiner noted that no physical illness was found which would warrant action under the provisions of AFM 35-4, which addresses separations due to disabilities that existed prior to service entry. However, the examiner noted that the Veteran was being considered for discharge under the provisions of AFM 39-12. A February 1974 military personnel record shows that the Veteran was discharged under the provisions of AFM 39-12 for defective attitude. This record is discussed fully below as it relates to the issue of service connection for depression. As noted above, the Veteran contends that he was treated for pneumonia in-service on approximately January 31, 1974 at Castle AFB hospital. However, a July 2012 VA memorandum documents that no clinical records from Castle AFB hospital, for the period from January 1, 1974 to February 13, 1974, are available for review. In particular, the July 2012 VA memorandum notes that an April 2011 records request response from the National Personnel Records Center (NPRC) located no records pertaining to the reported in-service treatment at Castle AFB hospital in 1974. A November 2006 VA medical record shows that the Veteran reported that he was employed from 1999 to 2006 as a remelt operator, before he left his job due to a hospitalization for pneumonia. The Veteran was afforded a VA examination in January 2020. The examiner noted that an in-person examination was conducted and that a review of the Veteran's VA e-folder, CPRS file, and Vista imaging was completed in conjunction with the examination. The examiner noted current diagnoses of emphysema, with a date of diagnosis of July 2006; COPD, with a date of diagnosis of April 2007; and interstitial lung disease, specified as pulmonary fibrosis, with a date of diagnosis of January 2019. The Veteran reported that he was diagnosed with, and treated for, pneumonia in-service in 1974 while stationed at Castle AFB. He reported that he was hospitalized for a week before being discharged. He reported that he had breathing problems a few times since his service, but that he did not seek medical treatment post-service until 2006 when he reported that he was hospitalized for seven days. The examiner opined that the Veteran's respiratory condition is less likely as not related to his service. The examiner noted that the Veteran's service treatment records do not show documentation of a respiratory or pulmonary condition during his service. In the June 2021 brief, the Veteran, through his representative, noted that records of the Veteran's reported treatment for pneumonia in-service at Castle AFB hospital were not able to be located, and that the January 2020 VA examination is inadequate because the examiner stated that the Veteran's service treatment records do not indicate a respiratory or pulmonary condition during service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). However, in providing the negative nexus opinion, the examiner noted that the Veteran reported that he was diagnosed with, and treated for, pneumonia in-service in 1974 while stationed at Castle AFB, and that he was hospitalized for a week before being discharged. The examiner also noted that the Veteran reported that he had breathing problems a few times since his service, but that he did not seek medical treatment post-service until 2006 when he reported that he was hospitalized for seven days. After a review of the evidence, the examiner opined that the Veteran's respiratory condition is less likely as not related to his service. Although the examiner noted that the Veteran's service treatment records do not show documentation of a respiratory or pulmonary condition during his service, the examination report, read in its entirety, does not suggest that the examiner relied solely on the absence of evidence in the service treatment records to provide a negative opinion as in Dalton. Instead, the examination report indicates that in providing the opinion rendered, the examiner considered the current diagnoses, the Veteran's report of treatment for pneumonia in-service, and the first post-service treatment in approximately 2006. Therefore, the January 2020 VA examination is not inadequate under Dalton. The February 1974 report of medical history at service separation shows that the Veteran denied then having or ever having had chronic or frequent colds, shortness of breath, and pain or pressure in his chest. Although the Veteran checked "yes" to the question of whether he had ever been a patient in any type of hospital and noted treatment for pneumonia at Castle AFB hospital, the examiner noted only a history of occasional leg cramps and stated that the Veteran denied all other significant medical or surgical history. Additionally, the February 1974 report of medical examination shows a normal clinical evaluation of the Veteran's lungs and chest, and vascular system. There is no indication in the record, other than the Veteran's indication in the February 1974 report of medical history, that he was treated in-service for pneumonia. Instead, the July 2012 VA memorandum documents that no clinical records from Castle AFB hospital, for the period from January 1, 1974 to February 13, 1974, are available for review, and no records pertaining to the reported in-service treatment at Castle AFB hospital in 1974 were able to be located. Post-service VA medical records show that the Veteran was first treated for pneumonia in approximately 2006. In his January 2020 VA examination, the Veteran reported that he had breathing problems a few times since his service, but that he did not seek medical treatment post-service until 2006 when he reported that he was hospitalized for seven days. The examiner opined that the Veteran's respiratory condition is less likely as not related to his service. The examiner noted that the Veteran's service treatment records do not show documentation of a respiratory or pulmonary condition during his service. The Veteran's statements that his current lung condition is related to his service have been considered. While the Veteran believes that his lung condition, claimed as residuals of recurrent pneumonia, to include emphysema, COPD, and pulmonary fibrosis, is related to an in-service injury, event, or disease, to include an in-service indication of treatment for pneumonia, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d 1372, at 1377 n.4; see also Kahana, 24. Vet. App. 428. Consequently, more probative weight is given to the January 2020 VA examination. There is no objective medical evidence establishing a nexus between the Veteran's lung condition, claimed as residuals of recurrent pneumonia, to include emphysema, COPD, and pulmonary fibrosis, and his active service. Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that the Veteran's lung condition, claimed as residuals of recurrent pneumonia, to include emphysema, COPD, and pulmonary fibrosis, is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, at 53-56. For these reasons, the claim is denied. 2. Service connection for depression is denied. The Veteran contends that his depression is related to his service. In particular, he contends that his current condition is related to his mistreatment as an administrative clerk while working in the First Sergeant's office in-service. For the following reasons, service connection is not warranted, and the claim will be denied. An August 1973 military personnel record shows that the Veteran received disciplinary punishment for failure, without authority, to present at the time prescribed to the appointed place of duty. A September 1973 record of counseling shows that the Veteran failed to pass a dormitory inspection and failed to meet a mandatory formation. A September 1973 record of counseling shows that the Veteran did not report to an Open Ranks Inspection at the prescribed time. A November 1973 letter of reprimand shows that the Veteran was absent without proper authority from an Administrative Specialist Class while in-training. A November 1973 record of counseling shows that the Veteran reported for duty in dirty fatigues and unpolished shoes. A December 1973 military personnel record shows that the Veteran received disciplinary punishment for failure, without authority, to present at the time prescribed to the appointed place of duty. A December 1973 counseling statement shows that the Veteran failed to present at the time prescribed to the appointed place of duty. A December 1973 record of counseling shows that the Veteran failed to shave properly and present at the time prescribed to the appointed place of duty. A January 1974 record of counseling shows that the Veteran was disciplined for writing bad checks and for failure to present at the time prescribed to the appointed place of duty. A January 1974 counseling statement shows that the Veteran failed to present at the time prescribed to a training, and that he arrived without his study books. The statement also shows that the Veteran fell asleep three times during the training and scored a 65 percent of his test. A February 1974 assessment found no evidence of emotional instability, or irrational, or suicidal behavior. The February 1974 report of medical history at service separation shows that the Veteran denied then having or ever having had frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort, and periods of unconsciousness. In the physician's summary and elaboration of all pertinent data, the examiner noted only a history of occasional leg cramps, and stated that the Veteran denied a family history of psychosis, use of drugs, history of disturbances of consciousness, and all other significant medical or surgical history. There is no mention of any psychiatric condition in the report and the examiner made no remarks regarding any psychiatric condition, to include complaints, treatment, or diagnosis. The February 1974 report of medical examination shows a normal psychiatric clinical evaluation. As noted above, the only indication of any condition, physical or psychiatric, was occasional leg cramps. The examiner noted that no mental illness was found which would warrant action under the provisions of AFM 35-4, which addresses separations due to disabilities that existed prior to service entry. As noted above, the examiner noted that the Veteran was being considered for discharge under the provisions of AFM 39-12. A February 1974 military personnel record shows that the Veteran was discharged under the provisions of AFM 39-12 for defective attitude. The AFM 39-12 evaluation shows that the Veteran received three Article 15's, one letter of reprimand, and five letters of counseling. The Veteran was found unsuitable for further service due to his misconduct and his desire to be separated from service. However, the evaluation officer recommended the Veteran for honorable discharge for two stated reasons: 1) the Veteran's actions, which led to the above noted administrative disciplinary actions, were "relatively minor in nature;" and 2) the Veteran's "inability to adjust to military life is due to his immaturity." The officer added that the Veteran "is only 18 years of age." A January 2005 VA medical record shows a positive depression screening. A November 2006 VA medical records shows that the Veteran reported that he was discharged from service for "failure to adapt and comply." He reported that he had a Social Security Disability Insurance claim pending since October 2006 for depression. The Veteran was afforded a VA examination in January 2020. The examiner noted that an in-person examination was conducted and that a review of the Veteran's VA e-folder and CPRS file was completed in conjunction with the examination. The examiner noted a current diagnosis of unspecified depressive disorder. The Veteran reported that he received an Article 15 related to an incident when he could not find his dress blues and missed a parade; he reported that he was discharged, "I think because I got pneumonia." However, the examiner noted that the Veteran previously reported that he was discharged for "failure to adapt" in a November 2006 behavioral health assessment. The examiner noted that the Veteran was first treated post-service for depression in November 2006 when he was diagnosed with depressive disorder, not otherwise specified. The examiner opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran did not report symptoms or receive treatment for depression in-service, and that he did not seek mental health treatment post-service until 2006. The examiner noted that the Veteran reported that he had a marriage of 31 years with two children post-service, that he completed his GED in 1987, and that he maintained satisfactory employment until 2006. The examiner stated that the Veteran's depression appears related to situational events and factors incurred after his service. As above, in the June 2021 brief, the Veteran, through his representative, contends that the January 2020 VA examination is inadequate under Dalton, since the examiner did not consider the Veteran's statements regarding his mistreatment in-service and instead relied on the absence of in-service treatment or symptoms of depression. Dalton, 21 Vet. App. 23. However, the examination report indicates that the examiner did consider the in-service history as reported by the Veteran. In fact, the examiner noted the conflicting statement that the Veteran gave at the time of his examination regarding the nature of his discharge, which was that he was discharged due to pneumonia. The examiner noted that the Veteran had previously reported that his discharge was due to a failure to adapt. The examination report also shows that the examiner considered the Veteran's post-service treatment beginning in approximately 2006, and his post-service mental health history. Specifically, the examiner noted the Veteran's lengthy post-service marriage, his completion of a GED, and his ability to maintain satisfactory employment for many years post-service. The examination report shows that the examiner considered these facts when the examiner stated that the Veteran's depression appears related to situational events and factors incurred after his service. Thus, the examination report does not suggest that the examiner relied solely on the absence of evidence in the service treatment records to provide a negative opinion as in Dalton. Instead, the examination report indicates that in providing the opinion rendered, the examiner considered the current diagnosis, the Veteran's then report of his service history and his past report, and the first post-service treatment in approximately 2006. Therefore, the January 2020 VA examination is not inadequate under Dalton. The Veteran's military personnel records show that throughout his service, he consistently failed to present at the prescribed time to the appointed place of duty, that he failed to present properly groomed, that he failed to present in a properly maintained uniform, and that he failed at least one dormitory inspection. However, the record does not show any of the mistreatment that he reported. Instead, the record shows that the Veteran was afforded many opportunities to correct his actions prior to his discharge. As noted above, the February 1974 assessment found no evidence of emotional instability, or irrational, or suicidal behavior. The February 1974 report of medical history at service separation shows that the Veteran denied then having or ever having had frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort, and periods of unconsciousness. In terms of medical conditions at separation, the examiner noted only a history of occasional leg cramps, and the Veteran denied all other significant medical or surgical history. There is no mention of any psychiatric condition in the report and the examiner made no remarks regarding any psychiatric condition, to include complaints, treatment, or diagnosis. The February 1974 report of medical examination shows a normal psychiatric clinical evaluation. The service treatment records, to include the separation evaluation, and military personnel records do not contain evidence of any psychiatric condition. As noted above, a February 1974 military personnel record shows that the Veteran was discharged under the provisions of AFM 39-12 for defective attitude. However, the evaluation officer recommended the Veteran for honorable discharge for two stated reasons: 1) the Veteran's actions, which led to the above noted administrative disciplinary actions, were "relatively minor in nature;" and 2) the Veteran's "inability to adjust to military life is due to his immaturity." The officer added that the Veteran "is only 18 years of age." Post-service VA medical records show that the Veteran was first treated for depression in approximately 2005. In his January 2020 VA examination, the Veteran reported that he was discharged, "I think because I got pneumonia." However, the examiner noted that the Veteran previously reported that he was discharged for "failure to adapt" in a November 2006 behavioral health assessment. The examiner noted that the Veteran was first treated post-service for depression in approximately 2006 and opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran did not report symptoms or receive treatment for depression in-service, and that he did not seek mental health treatment post-service until 2006. The examiner noted that the Veteran reported that he had a marriage of 31 years with two children post-service, and that he completed his GED and maintained satisfactory employment until 2006. The examiner stated that the Veteran's depression appears related to situational events and factors incurred after his service. The Veteran's statements that his current depression is related to his service have been considered. While the Veteran believes that his depression is related to an in-service injury, event, or disease, to include reported mistreatment in-service, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d 1372, at 1377 n.4; see also Kahana, 24. Vet. App. 428. Consequently, more probative weight is given to the January 2020 VA examination. There is no objective evidence that shows the reported in-service mistreatment and there is no evidence of any complaints, treatment, or diagnosis of any psychiatric condition in-service. There is also no medical evidence establishing a nexus between the Veteran's current depression and his active service, to include reported mistreatment in-service. Instead, the evidence shows that the Veteran was disciplined in-service for his actions, mostly for failure to present at the time prescribed to the appointed place of duty, which the discharge evaluation officer characterized as "relatively minor in nature" and stated that the Veteran's "inability to adjust to military life is due to his immaturity." Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that the Veteran's current depression is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, at 53-56. For these reasons, the claim is denied. G. Jackson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart 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.