Citation Nr: 21042264 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 15-27 063A DATE: July 12, 2021 ORDER Service connection for a respiratory disability is denied. FINDINGS OF FACT 1. Asthma clearly and unmistakably preexisted service and was not aggravated by service. 2. The preponderance of the evidence is against finding that a chronic respiratory disability such as bronchitis and/or pneumonia began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a respiratory disability are not met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1969 to January 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by a Regional Office (RO) of a Department of Veterans Affairs (VA). This matter was remanded in December 2017, November 2018, and January 2021 for further development, which has been completed. Service connection for a respiratory disability is denied. The Veteran contends that he has had a respiratory disability since service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. §§ 1111, 1132, 1137. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre- service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). For purposes of illustrating the analysis to be used in such cases, the Board notes the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed.Cir. 2004), issued on June 1, 2004, summarizing the effect of 38 U.S.C. § 1111 on claims for service-connected disability: When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. In this case, the Veteran's April 1969 entrance examination yielded normal findings. Consequently, the Veteran is entitled to the presumption of soundness. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of asthma, bronchitis, and pneumonia, and evidence shows that he had an acute respiratory disease during service, the preponderance of the evidence weighs against finding that the Veteran's diagnoses began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records reflect that in June 1969, the Veteran reported sore throat, chills, sweats, and anorexia. X-rays revealed partly infiltrated posterior base. He responded to symptomatic treatment and was discharged from the hospital five days later. He was diagnosed with an acute respiratory disease. In February 1970, the Veteran reported pain in his lower abdomen and bronchitis. There was a reference to having a history of asthma for one year. The examiner noted that the examination was normal. The Veteran's January 1971 separation examination yielded normal findings. In January 1976, the Veteran filed a claim for dermatitis (fungus) on his back, legs, and arms. He did not note any respiratory disability at that time. He underwent a VA examination in March 1976. He failed to report any respiratory symptoms. Examination revealed that lungs were clear throughout. The examination included x-rays. In an April 1987 treatment report, the Veteran stated that he had pneumonia twice, seven years earlier. He denied any current medical problems. The Veteran underwent a VA examination in August 1991. He reported that he has a dry, hacking type cough "every now and then." He also reported that sometimes a little white phlegm comes up. He also reported that "sometimes I have to force my breath out," and that sometimes he wakes up at night with shortness of breath. He stated that x-rays of his lungs always come up negative. The examiner noted that there was no cough or expectorate while being examined. The Veteran had normal mobility, palpation, percussion, and breath sounds throughout the lung field. The shape of the chest was normal, and he had good expansion and contraction on inspiration and expiration. The examiner did not diagnose the Veteran with any respiratory disability. In February 1993, the Veteran testified that he was having attacks of asthma. He reported that he was born with bronchial asthma, and that doctors told him that he might grow out of it. He stated that when he played football, he had to use an atomizer. He stated that when he was in the military, he had bronchial pneumonia. He stated that he cannot sleep on his back because he would stop breathing. He also described laboring to catch his breath. A May 1993 treatment report reflects that the Veteran used to smoke cigarettes, but that he stopped in 1970. A July 1993 treatment report reflects that the Veteran reported a lumbar back and cervical disc disease compounded by asthma. In a July 1998 decision, the Board determined that the Veteran did not have a current respiratory disability. A July 2001 treatment report reflects that the Veteran was assessed with severe sleep apnea. A December 2005 treatment report reflects that the Veteran reported bronchitis in the morning. A September 2007 treatment report reflects that the Veteran denied shortness of breath, coughing, or wheezing. Examination showed no wheezing, crackles, rales, or dullness. There was normal respiratory rate and rhythm. A March 2008 x-ray showed that the Veteran made poor inspiratory effort, and that the x-ray was essentially unremarkable. A July 2009 treatment report reflects that lungs were clear to auscultation bilaterally. In October 2009, the Veteran reported a history of a cough. A December 2010 x-ray reflected chronic changes in both lungs with some flattening of the diaphragmatic domes. The Veteran was assessed with chronic obstructive pulmonary disease (COPD) and chronic changes in both lungs. Treatment reports dated September 2010 to May 2011 reflect no shortness of breath, cough, wheezing, or chest pain. The Veteran underwent a VA examination in January 2012. In its December 2017 remand, the Board found the examiner's conclusions to be inadequate. However, it is worth noting that the x-rays revealed no cardiopulmonary abnormality. A June 2012 treatment report reflects that the Veteran was hospitalized with pneumonia in December 2011. A February 2014 treatment report reflects that the Veteran reported intermittent cough associated with greenish sputum for three months. Examination revealed bronchi bilaterally. He was assessed with chronic bronchitis. A February 2015 treatment report reflects similar symptoms and another assessment of chronic bronchitis. In April 2015, he was assessed with bronchitis/pneumonia. Treatment reports dated July 2018 reflect that the Veteran reported bronchitis, pneumonia, asthma, snoring, obstructive sleep apnea (requiring a CPAP), dyspnea, and shortness of breath. He stated that he had pneumonia 5 times in the distant past. A September 2018 treatment report reflects that the Veteran reported a three month history of coughing up clear, thick white phlegm. He denied chest pain and shortness of breath. He was assessed with allergic rhinitis. The Veteran underwent a VA examination in March 2021. Regarding asthma, the examiner found that it clearly and unmistakably existed prior to service, but that it clearly and unmistakably was not aggravated beyond its natural progression by service. He noted that temporary aggravation is plausible, but there is no evidence of permanent aggravation of pre-existing asthma. He noted that during service, asthma and bronchitis were acute only. He noted that there is no evidence of chronicity of care, and that symptoms are subjective only. Regarding bronchitis, the examiner opined that it was less likely than not incurred in or caused by service. He once again noted that bronchitis during service was acute only, and that symptoms were subjective only. The examiner rendered the same opinion regarding pneumonia. Treatment records show the Veteran was not diagnosed with any respiratory disability until decades after his separation from service. While the Veteran is competent to report having experienced symptoms since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a chronic respiratory disability. The issue is medically complex, as it requires knowledge of pathology. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the March 2012 VA examiner opined that the Veteran's asthma preexisted service and was not aggravated by service, and that bronchitis and pneumonia were not at least as likely as not related to an in-service injury, event, or disease. The examiner's opinions are probative because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes that his respiratory disabilities are related to an in-service injury, event, or disease. He is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of respiratory pathology. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the March 2021 VA examiner. In a May 2021 Brief, the Veteran's representative requested that the claim be remanded for an opinion from a specialist. The Board notes that the representative has failed to provide any concrete assertion as to why the March 2021 VA examiner's opinions are inadequate. The VA examiner is a licensed physician with the training and education to assess various disabilities including common respiratory disabilities such as asthma, pneumonia, and bronchitis. Consequently, the Board does not find it necessary to remand for another opinion. In the absence of a competent medical nexus opinion linking the Veteran's respiratory disabilities to service, the preponderance of the evidence weighs against the claim. As the preponderance of the evidence is against entitlement to service connection for a respiratory disability; the benefit of the doubt doctrine does not apply. Service connection is denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Prem, 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.