Citation Nr: 21041573 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-05 491A DATE: July 9, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) as secondary to the service-connected disability, status-post spontaneous pneumothorax on the left and right, status-post right lateral thoracotomy is denied. Entitlement to service connection for avascular necrosis, left hip (claimed as bilateral avascular necrosis) as secondary to the service-connected disability of degenerative arthritis of the lumbar spine is denied. Entitlement to service connection for avascular necrosis, right hip (claimed as bilateral avascular necrosis) as secondary to the service-connected disability of degenerative arthritis of the lumbar spine is denied. FINDINGS OF FACT 1. The Veteran's COPD is not causally or etiologically related to service or secondary to a service-connected disability. 2. The Veteran's avascular necrosis, left hip (claimed as bilateral avascular necrosis) is not causally or etiologically related to service or secondary to a service-connected disability. 3. The Veteran's avascular necrosis, right hip (claimed as bilateral avascular necrosis) is not causally or etiologically related to service or secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for COPD as secondary to the service-connected disability, status-post spontaneous pneumothorax on the left and right, status-post right lateral thoracotomy have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for entitlement to service connection for avascular necrosis, left hip (claimed as bilateral avascular necrosis) as secondary to the service-connected disability of degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for entitlement to service connection for avascular necrosis, right hip (claimed as bilateral avascular necrosis) as secondary to the service-connected disability of degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1977 to March 1995. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from October 2015 and March 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In March 2019, the Board remanded this case to obtain addendum opinions. Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or the applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) as secondary to the service-connected disability, status-post spontaneous pneumothorax on the left and right, status-post right lateral thoracotomy VA treatment records show the Veteran has a current diagnosis of COPD. The Veteran is service-connected for his status-post spontaneous pneumothorax, which the Veteran believes caused or aggravated his COPD. The Veteran was afforded VA examinations in October 2015 and January 2020. Both examiners opined it was less likely than not that the Veteran's COPD is related to his service, nor was it due to or aggravated by his service-connected status-post spontaneous pneumothorax. They both believe his COPD is more likely due to his smoking for 25 years, as long-term smoking is the most significant risk factor for COPD. The January 2020 examiner was specifically instructed to address medical literature submitted by the Veteran. This medical literature discussed the relationship between COPD and pneumothorax. The examiner explained that although COPD is a common cause of pneumothorax, there is no medical evidence to suggest that the reverse is true. Therefore, she determined that his pneumothorax 20 years before his diagnosis of COPD could not have caused or aggravated his COPD. The Board finds that the January 2020 VA opinion is adequate and dispositive of the nexus question presented in this case because it is based on a review of the file, consideration of the Veteran's contentions, and supported by a rationale based on sound medical principles. The only other opinion in this matter comes from the Veteran. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. As mentioned above, there is a 20-year gap between the Veteran's pneumothorax and his COPD diagnosis. Additionally, there is no evidence that the Veteran had any symptoms of COPD in service or shortly after, and his pneumothorax resolved. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, service connection is denied. 2. Entitlement to service connection for avascular necrosis, left hip (claimed as bilateral avascular necrosis) as secondary to the service-connected disability of degenerative arthritis of the lumbar spine. 3. Entitlement to service connection for avascular necrosis, right hip (claimed as bilateral avascular necrosis) as secondary to the service-connected disability of degenerative arthritis of the lumbar spine. VA treatment records show the Veteran has a current diagnosis of avascular necrosis of the left and right hips. The Veteran is service-connected for his degenerative arthritis of the lumbar spine, which the Veteran believes caused or aggravated his bilateral hip condition. The Veteran also believes his exposure to radiation in service caused his bilateral hip condition. The Veteran was afforded VA examinations in March 2016 and January 2020. Both examiners opined it was less likely than not that the Veteran's bilateral hip condition is related to his service, nor was it due to or aggravated by his service-connected arthritis of the lumbar spine. The examiners stated the Veteran's consumption of several alcoholic drinks a day for several years likely caused his hip condition. The Veteran was previously seen for alcoholism and went to Alcoholics Anonymous. The examiners explained that excessive drinking is a risk factor for avascular necrosis due to it causing fatty deposits to form in blood cells, reducing blood flow to the bones. Additionally, both examiners said his hip condition is not caused or aggravated by his lumbar spine condition because there is no medical literature to suggest a relationship between arthritis of the back and avascular necrosis of the hip. They listed several risk factors, most of which were conditions that caused reduced blood flow to the hips or weakened hip bones. Arthritis is not one of these conditions. The January 2020 examiner was specifically instructed to address the Veteran's radiation exposure. She explained that radiation can cause avascular necrosis, however it is not likely unless the radiation was specifically for treatment or at the hips. The Board finds that the January 2020 VA opinion is adequate and dispositive of the nexus question presented in this case because it is based on a review of the file, consideration of the Veteran's contentions, and supported by a rationale based on sound medical principles. The only other opinion in this matter comes from the Veteran. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. There is no evidence that the Veteran had any symptoms of avascular necrosis of the hips in service or shortly after. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, service connection is denied. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.