Citation Nr: 22016357 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-48 633 DATE: March 22, 2022 ORDER Entitlement to service connection for a respiratory disability manifested by shortness of breath, to include chronic obstructive pulmonary disease (COPD) and claimed residuals of pneumonia, is denied. REMANDED The issue of entitlement to service connection for a back disability is remanded. FINDING OF FACT The evidence is persuasively against finding that any current respiratory disorder began during active duty service or is otherwise etiologically linked to an in-service disease, injury, or event, to include the Veteran's in-service pneumonia. CONCLUSION OF LAW The criteria for service connection for a respiratory disability manifested by shortness of breath, to include COPD and claimed residuals of pneumonia, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from January 1973 to August 1973, and on active duty from October 1974 to March 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned at a Board hearing in July 2021. A transcript of the hearing is of record. During the July 2021 Board hearing, the undersigned granted the Veteran's motion to hold the record open for a period of 30 days following the hearing to provide him with the opportunity to submit additional private medical evidence with regard to the respiratory disability issue on appeal. The Veteran expressed that he wished for the Board to proceed with a decision on the claim in the event that he was unable to provide the sought private medical records. The evidence added to the claims-file does not appear to include additional records from the specific provider the Veteran identified at the Board hearing; the Board shall proceed with a decision on the respiratory disability issue, in accordance with the Veteran's instructions. 1. Entitlement to service connection for a respiratory disability manifested by shortness of breath, to include COPD and claimed residuals of pneumonia, is denied. The Veteran claims entitlement to service connection for a respiratory disability, claimed as residuals of in-service pneumonia manifested by shortness of breath, with the medical evidence of record showing that he is diagnosed with COPD. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence in evaluating a claim to disability benefits. 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 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, with the veteran prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence of record in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that he continues to suffer from respiratory disability as residuals or sequelae or other manner of consequence of his suffering from pneumonia during active duty service. The Board notes at the outset that the Veteran's service treatment records clearly document that the Veteran was diagnosed and treated for pneumonia during service, including with a hospitalization, over a period in February and March 1973. Subsequent service treatment records, including multiple full physical examination reports, present no indication of any residual respiratory impairment following medical resolution of the Veteran's pneumonia in March 1973. The records show normal respiratory clinical findings in July 1973, October 1974, and at a separation examination in March 1976. A medical history questionnaire completed by the Veteran in October 1974 shows that the Veteran reported: "I'm in perfect health no problems," and he specifically denied experiencing any respiratory symptoms, including specifically denying experiencing shortness of breath or chronic cough. The Board notes that the service treatment records document that the Veteran was assessed to have an upper respiratory infection ("viral URI") in November 1975, and this was manifested by chills, body aches, headache, and malaise; chest was clear, and the Veteran felt better and requested a return to duty the next day. No evidence of record links this November 1975 upper respiratory viral infection to the Veteran's February 1973 pneumonia or to any chronic disability. The post-service medical evidence shows that the Veteran has experienced respiratory impairment featuring shortness of breath beginning in approximately 1999 and more recently a diagnosis of COPD, but the medical evidence is persuasively against finding that the post-service respiratory impairment is etiologically linked to the Veteran's military service. An October 2016 VA examination report shows that the Veteran did not have a respiratory disability at that time and "[o]n current exam, nothing really abnormal was observed...." The VA examiner nevertheless acknowledged and accepted the Veteran's description of experiencing shortness of breath symptomatology and presents a medical opinion that the shortness of breath is "less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The VA examiner explained the rationale for this conclusion, discussing review of the medical documentation of the in-service pneumonia and the Veteran's own statements, noting that "[h]e had not had an[y] sequel for the pneumonia and did not start with his shortness of breath until 1999 but it does not seem to progress to anything other than intermittent shortness of breath or feeling being 'winded.'" The factual predicate foundation upon which the October 2016 VA medical opinion analyzes the Veteran's pertinent shortness of breath symptomatology in this case features the fact that the Veteran's in-service pneumonia with shortness of breath resolved, and was not followed by the onset of the current problems with shortness of breath until approximately two decades following service. The Board finds that this is an accurate factual predicate. The VA examiner notes that the Veteran described that his current problems with shortness of breath began in approximately 1999: "Specific History For: Shortness of breath. The date of onset of the symptoms is 1999. The claimant states the above condition began [at] school district from 1990-2000. The condition has stayed the same." This information is consistent with the Veteran's further testimony at the July 2021 Board hearing, in which he stated that the "shortness of breath .... After service it was (inaudible) started out in the 90s ma'am in the 90s.... In the 90s to tell the truth, ma'am, it was the 90s, and it was really shortness of breath." The lengthy period of approximately 20 years following the Veteran's separation from active duty service without evidence of the emergence of the disability at issue is one factor that weighs against the Veteran's claim for service connection on a direct basis. See Maxson v. West, 12 Vet. App. 453, 459 (1999). The Board finds that the October 2016 VA medical opinion presents a conclusion and rationale based upon an accurate factual predicate informed by clinical examination, review of the evidence, and interview of the Veteran. The Board finds that this is probative and adequate evidence indicating that the Veteran's current shortness of breath is not etiologically linked to his in-service pneumonia. The Board notes that, in the time following the October 2016 VA examination, the Veteran's private medical reports of record from 2019 show that the Veteran has now been diagnosed with COPD. The Veteran's new diagnosis of COPD was discussed during the Veteran's July 2021 Board hearing. The medical reports of record present no suggestion that the Veteran's COPD diagnosis is etiologically linked to his military service, including his in-service pneumonia. The Veteran's discussion of the COPD diagnosis during the July 2021 Board hearing included discussion of the potential importance of any evidence that may show that the COPD is etiologically linked to the Veteran's military service / in-service pneumonia, and the record was held open at the Veteran's request to provide him with an opportunity to seek additional medical records that may show such a link. No such evidence has been added to the record. The Board finds no indication of record that the Veteran's recent diagnosis of COPD may be medically related to his in-service pneumonia, or may have otherwise been caused by the Veteran's military service. The Board notes that the Veteran was diagnosed with pneumonia during service, and was not diagnosed with COPD during service or until decades thereafter. The Board finds that the October 2016 VA medical opinion addressing the Veteran's pertinent shortness of breath symptomatology, without a COPD diagnosis at that time, adequately presents the medical conclusion that the Veteran's in-service respiratory disease, featuring pneumonia in 1973, was not a cause of the Veteran's post-service / current shortness of breath that began in approximately 1999. In the absence of any indication that the new diagnosis of COPD could change the nature of the VA medical opinion's analysis, and in the absence of any evidence otherwise indicating that there may be a link between the COPD diagnosis and military service, the Board finds that there is no need for additional development of the evidence in this case. The October 2016 VA medical opinion discussed above indicates that the Veteran's post-service shortness of breath / respiratory impairment is unlikely to be etiologically linked to his in-service pneumonia or otherwise caused by his military service. The opinion was prepared by a medical expert competent to address these issues. The opinion is adequately informed by the evidence of record, and it is adequately explained with a rationale. The Board finds it to be probative. There is no contrary competent opinion of record, and therefore the Board finds October 2016 VA medical opinion to be persuasive. While the Veteran believes that his shortness of breath / respiratory disability is etiologically linked to his military service featuring in-service pneumonia, he has not been shown to be competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized knowledge including of the nuances of the onset and resolution of multiple distinct respiratory pathologies and their potential sequelae over periods of decades. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training 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 finds that the October 2016 VA medical opinion of record carries more probative weight in this case. In summary, the evidence is persuasively against granting entitlement to service connection for a respiratory disability in this case. There is no competent evidence indicating that the Veteran has a current respiratory disability that is etiologically linked to his military service. The probative evidence of record is persuasively against finding in-service incurrence or aggravation of any current respiratory impairment. Based on the foregoing, the Board finds that the evidence is persuasively against the claim of entitlement to service connection for a respiratory disability. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the evidence is persuasively against the Veteran's claim, there is not an approximate balance of positive and negative evidence; accordingly, the benefit-of-the-doubt doctrine is not applicable, and service connection for a respiratory disability must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. The issue of entitlement to service connection for a back disability is remanded. In this case, the Veteran has not been afforded a VA examination with regard to his claim of entitlement to service connection for a back disability. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.159(c)(4) provides that an examination or opinion is necessary if the evidence of record: 1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability; and 2) establishes that the Veteran suffered an event, injury, or disease in service; and 3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but 4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. The Court noted that the third prong of 38 C.F.R. § 3.159(c)(4) is a low threshold standard. The Board finds that the McLendon criteria have been met to warrant a VA examination for this issue. First, the evidentiary record now contains evidence indicative of a current back disability: a June 2017 VA medical record shows a clinical assessment of "pain in Mid back - likely DJD related," and this note is repeated in other of the Veteran's VA medical records. The Board also notes that a November 2015 private diagnostic imaging report shows mild degenerative changes of the lumbosacral spine. Second, the Veteran's February 2017 notice of disagreement describes that he suffered "a back injury in Service" in connection with his "most physical" duty as a Marine, citing back-straining duty requirements such as running, jumping, crawling, climbing, and forced marching with full rucksacks and combat gear. During the July 2021 Board hearing, the Veteran provided testimony with more detail to describe one particular incident of back injury during service in which the Veteran fell in a training accident while rappelling. Third, the Board finds that the low threshold standard has been met for finding an indication that the current disability may be associated with the in-service injury as the Veteran's testimony describes in-service injury to the back and the current disability at issue (degenerative joint disease of the back) is a disability associated by name with damage to the back. In the absence of any competent medical opinion addressing the matter, the Board finds that the record does not contain sufficient medical evidence to allow the Board to make determinations on the questions necessary to resolve the claim of entitlement to service connection for the Veteran's current back disability. The Board notes that the duty to assist requires that an examiner address a veteran's lay statements to provide the Board with an adequate medical opinion. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). The Board makes no credibility findings at this time. The matters are REMANDED for the following action: 1. Associate with the claims-file any outstanding pertinent treatment records, including additional VA treatment records (such as those that may have been created since the last such update of the claims-file). 2. After the record is determined to be complete, arrange for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) and a medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran's back disability. The examiner should review the claims file. The examiner is requested to answer the following: (a.) Identify all back disabilities present, to include with attention to previously indicated degenerative joint disease. (b.) As to each back disability identified, is it at least as likely as not (50 percent probability or greater) that the Veteran suffers from a back disability that is related to / proximately due to his active duty military service including the Veteran's statements that (1) during service he suffered an injury to his back from a fall of perhaps 3 feet while rappelling, and (2) his duty as a Marine featured back-straining physical requirements such as running, jumping, crawling, climbing, and forced marching while carrying full rucksacks and combat gear. In responding to the above, the clinician is requested to address the following: (c.) What types of symptoms would have been caused by the claimed in-service injuries? (d.) Is there any medical reason to accept or reject the proposition that, had the claimed in-service events occurred, associated injuries could have led to the current disorder(s)? (e.) Please explain whether the Veteran's lay statements regarding the in-service back injuries / strains and his subsequent back health history align with how his current diagnosed back disabilities are known to typically develop. A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The clinician is advised that the Board has not as yet made any credibility determinations with respect to the Veteran's reports of pertinent history. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Barone, Alexander 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.