Citation Nr: 22014685 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 12-11 838 DATE: March 14, 2022 ORDER Entitlement to service connection for a respiratory disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to service connection for a groin or testicular disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has had a chronic respiratory disability at any time during or proximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that left and right knee conditions began during his active service, or are otherwise related to any event, injury, or disease during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in August 2012, June 2015, March 2018, and May 2021. A review of the claims file shows that there has been substantial compliance with the Board's remand directives related to the issues of entitlement to service connection for a respiratory disability and a bilateral knee disability. Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. Neither the Veteran nor representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be established 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. To establish direct 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 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). 1. Entitlement to service connection for a respiratory disability is denied. The Veteran seeks entitlement to service connection for a respiratory disability. Specifically, the Veteran contends that he was treated for bronchitis during active service and that he continued to have chronic bronchitis. The question for the Board is whether the Veteran has a current disability that began during his active service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current chronic respiratory disability and has not had one at any time during or approximate to the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007). The medical treatment records do not show that the Veteran has been diagnosed with a chronic respiratory disability, to include bronchitis, during the pendency of the appeal. At a February 2016 VA examination, the Veteran reported that he had bronchitis when he was 20 years old and continued to have problems catching his breath at night. The Veteran did not take any medications related to a respiratory disability. The VA examiner noted that the Veteran did not have and had not ever been diagnosed with a respiratory condition. The Veteran was provided a pulmonary function test, which found no significant diagnostic test findings and/or results. The VA examiner concluded that there was no objective evidence of bronchitis or a respiratory condition. At a January 2020 VA examination, the VA examiner reviewed the record, interviewed the Veteran, and conducted an in-person examination. The VA examiner did not note a diagnosis of any respiratory condition. The VA examiner noted that the Veteran's separation examination showed normal sinuses and lungs and did not find for bronchitis, sinusitis, or allergic rhinitis. The VA examiner noted that the Veteran's lung volumes, PFTs, and diffusing capacity were normal. The VA examiner noted that review of the service medical records and medical treatment records was against any diagnosed respiratory condition, including bronchitis, sinusitis, or allergic rhinitis during the period on appeal. At a September 2021 VA respiratory conditions examination, the Veteran reported developing shortness of breath during active service. The examiner noted that the Veteran had acute bronchitis, resolved, in 2011. Upon diagnostic testing, the VA examiner reported there was no radiologic evidence of cardiopulmonary disease. Additionally, PFTs testing indicated that the Veteran did not have a current respiratory diagnosis. The VA examiner concluded that the Veteran has no physical assessment findings that would indicate any respiratory illness and that the 2011 note of bronchitis was acute only. Thus, the record contains no medical evidence of a diagnosis of a current diagnosis of chronic respiratory disability. In the absence of proof of a present disability, there is no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board acknowledges the Veteran's belief that he has a current respiratory disability. He is competent to report subjective symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not considered competent to provide a diagnosis in this case because the issue is medically complex and requires medical knowledge and expertise the Veteran has not been shown to have. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because his statements are not competent, they are not probative in establishing that he has had a respiratory disability during or proximate to the pendency of the claim. In summary, the record does not show that the Veteran had a chronic respiratory disability at any time during or recent to the filing of the claim. The existence of a current disability is the cornerstone of a claim for VA disability compensation. In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a respiratory disability. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for a bilateral knee disability is denied. The Veteran seeks entitlement to service connection for left and right knee disabilities, which he contends are due to strenuous activities in service, including loading bombs in the belly of airplanes during active service. 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 any injury, event, or disease during service. The Board concludes that, although the Veteran has a current diagnosis of bilateral knee joint osteoarthritis, he is competent and credible in his reports of engaging in strenuous activities during his active service, and the service medical records show that he hit his left knee during service, the evidence weighs against finding that the bilateral knee joint osteoarthritis began during service or is otherwise related to any injury, event, or disease during service. The service medical records show that the Veteran reported hitting his left knee in March 1980. The Veteran did not report knee pain or other knee symptoms during the remainder of active service, nor was he diagnosed with a left or right knee condition during active service. He had a normal clinical evaluation of the lower extremities on examination for separation from active service in January 1984. At a January 2012 VA examination, the examiner opined that the Veteran's current bilateral knee disability was not related to active service. As rationale, the examiner noted that there is no objective evidence of a right or left knee disability during active service. At a January 2020 VA knee and lower leg conditions examination, the Veteran reported that chronic knee pain was due to loading bombs in the belly of airplanes during service. The Veteran denied trauma to the knees or surgical procedures. The examiner opined that bilateral knee osteoarthritis was less likely as not caused by or a result of service. As rationale, the examiner explained that the service separation examination documented normal lower extremity findings and did not note any bilateral knee condition. The examiner further explained that according to a review of medical literature, the pathogenesis of arthritis was much more complex than just wear and tear, and there were a variety of factors that played an important role in the pathogenesis of arthritis, including biomechanical factors, proinflammatory mediators, and proteases. In a September 2021 addendum opinion, a VA examiner noted there was no evidence found to show any documentation of symptoms or treatments for a knee disorder. Additionally, a report of medical records dated 1983 shows the Veteran indicated "no" for swollen or painful joints. The VA examiner noted that there was no specific etiology of the bilateral knee pain, and it was caused by wear and tear over time. As to the Veteran's reports that a bilateral knee disability is due to loading heavy bombs into airplanes, the VA examiner noted that although there was some correlation between knee pain and heavy lifting, there is no evidence of knee conditions during service. The Board finds that the VA examinations are probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The January 2020 and September 2021 VA examiners explained that the Veteran's bilateral knee disability is related to normal wear and tear. Additionally, the September 2021 VA examiner explained that there is no competent medical evidence that the Veteran's bilateral knee disability is related to heavy lifting during his active service. The Board accepts the examiners' opinions as probative evidence that the current left and right knee disabilities are not related to the Veteran's active service, to include lifting heavy bombs during his active service. The Board acknowledges the Veteran's belief that current left and right knee conditions are related to any injury, event, or disease in service. However, the Veteran in this case is not considered competent to provide an etiology opinion regarding this issue. The issue is medically complex, as it requires knowledge of the pathology and progression of specific knee disabilities. Therefore, it is outside the competence of the Veteran, as 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 (Fed. Cir. 2007). Consequently, his statements in that regard are not assigned probative value, and they do not weigh against the VA examiners' probative opinions. In summary, the Board finds that the preponderance of the evidence is against finding that left and right knee disabilities began during active service, or are otherwise related to any event, injury, or disease during service. The Board concludes that the preponderance of the evidence is against the claims of entitlement to service connection for a left and right knee disabilities. The Board finds that the evidence is not in relative equipoise and there is no reasonable doubt to resolve in favor of the Veteran. Therefore, the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for a groin or testicular disability is remanded. The Veteran contends that he has a current groin and/or testicular disorder that is secondary to a service-connected disability. In May 2021, the Board remanded the issue to obtain an addendum opinion. The VA examiner was requested to provide an opinion as to whether any current groin or testicle disability was caused by or aggravated by a current bilateral knee disability and/or a service-connected disability. The Veteran was provided an addendum opinion in September 2021. The VA examiner opined that the Veteran's groin/testicular disorder was less likely as not caused by, aggravated by, or otherwise related to a bilateral knee disorder or any service-connected disability. As rationale, the VA examiner explained that there was no correlation between knee pain and a current testicular condition. However, the VA examiner did not provide a rationale as to whether the Veteran's current testicular disorder was secondary to the service-connected disabilities. Accordingly, the September 2021 VA examination is incomplete for adjudication purposes and does not substantially comply with the May 2021 Board remand requests. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The matter is REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who provided the September 2021 addendum opinion, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the requested information, then an in-person examination should be scheduled. Following review of the record, the examiner should provide the following information: (a.) Diagnose all groin or testicular disabilities found or diagnosed during the pendency of the claim. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that any groin or testicular disability is proximately due to or the result of the service-connected disabilities or treatment for the service-connected disabilities. A rationale must be provided for the opinion. In providing the requested rationale, the examiner must note that it is not required that the groin/testicular disability is shown to be predominantly due to or result of a service-connected disability, but rather, whether there is any contributing degree of etiological relationship to a service-connected disability. (c.) Opine whether it is at least as likely as not (50 percent or greater probability) that any groin or testicular disability is aggravated (increased in severity beyond natural progress of the disorder) by the service-connected disabilities or treatment of the service-connected disabilities. A rationale must be provided for the opinion. In providing the requested rationale, the examiner must note that it is not required that the groin or testicular disability is shown to be aggravated beyond natural progression predominantly by a service-connected disability, but rather, whether there is any contributing degree of aggravation beyond the natural progression by the service-connected disability. 2. Then, readjudicate the claim, with consideration of all of the evidence of record. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.