Citation Nr: 22017167 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 10-06 057 DATE: March 24, 2022 ORDER Entitlement to service connection for a respiratory disability as secondary to the Veteran's service-connected disabilities is denied. FINDING OF FACT The Veteran's respiratory disabilities have not been caused or aggravated by his service connected costochondritis. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disability as secondary to service connected costochondritis have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1973 to April 1978. He served in the United States Army. Subsequently, his character of discharge was upgraded to under honorable conditions. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2016, the Veteran testified at a Video Conference Hearing before the undersigned; a transcript is included in the record. This matter was previously before the Board in August 2016, when the Board remanded this matter for a VA examination to encompass all of the Veteran's current lung disabilities. In June 2017, the Board again remanded the matter for a supplemental medical opinion regarding the Veteran's lung nodules. In February 2018, the Board denied the appeal with regard to the Veteran's claim of entitlement to service connection for a respiratory disability. The Veteran appealed the Board's February 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In December 2018, the parties to the appeal (the Veteran, through his attorney, and a representative from VA General Counsel) filed a Joint Motion for Partial Remand of the Board's decision (Joint Motion). The parties agreed that the Board's decision should be vacated and remanded insofar as it had denied Appellant's claim of entitlement to service connection for a respiratory disability as secondary to his service-connected disabilities. The Court granted the Joint Motion in August 2018. The Joint Motion made expressly clear that it did not "seek to disturb that portion of the decision on appeal that denied Appellant's claim of entitlement to service connection for a respiratory disability on a direct basis.... Appellant does not appeal this part of the Board's decision." Accordingly, only the matter of entitlement to service connection for a respiratory disability on a secondary basis (as secondary to another service-connected disability) is before the Board at this time; the aspect of the claim that featured a direct theory of service connection (as directly related to service) is not before the Board and shall not be addressed in this decision. The secondary service connection claim then returned to the Board for further appellate review, and in August 2019 the Board remanded the issue to the Agency of Original Jurisdiction (AOJ) for additional development to comply with the directives of the Joint Motion. The Joint Motion expressly directed that the Board must obtain an opinion regarding whether Appellant's service-connected disabilities, other than costochondritis, caused his COPD, asthma, lung nodules, and follicular lymphoma, and whether any of his service-connected disabilities aggravated his follicular lymphoma and lung nodules. In September 2020, the case returned to the Board once again. The Board again remanded the case for actions to ensure compliance with the directives of the Joint Motion. The case has now again returned to the Board for appellate review. 1. Entitlement to service connection for a respiratory disability as secondary to the Veteran's service-connected disabilities is denied. 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence of record 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 weighs persuasively against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence of record for this appeal, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Here, the Veteran has a current respiratory disability. During the pendency of this claim, the competent medical evidence of record shows diagnoses of chronic obstructive pulmonary disease (COPD), asthma, lung nodules, and follicular lymphoma. Accordingly, the first element of direct service connection has been met. With regard to secondary service connection for his respiratory disabilities, first contended by the Veteran during the April 2016 videoconference Board hearing, although there is a service connected disability (costochondritis) and non-service connected respiratory disabilities, there is no competent medical evidence that the nonservice connected disabilities are either proximately due to or the result of the service connected disability or aggravated by the service connected disability. The October 2016 VA examination report stated that "costochondritis is not a pulmonary (lung) condition" and there is no "direct or indirect cause and effect relationship" between costochondritis and COPD. In addition, the July 2017 VA supplemental opinion went a step further and stated that there is no "direct or indirect cause and effect relationship" between costochondritis and the Veteran's lung nodules. The December 2018 Joint Motion discussed that, at the time of its presentation: "the record does not contain all opinions ordered by the Board's August 2016 and June 2017 remands.... Stegall, 11 Vet. App. at 271. Specifically, the record does not contain an opinion as to whether Appellant's service-connected disabilities, other than costochondritis, caused his COPD, asthma, lung nodules, and follicular lymphoma." Furthermore: "The record also does not contain an opinion as to whether any of Appellant's service-connected disabilities aggravated his follicular lymphoma and lung nodules...." The Joint Motion explains: As the Board specifically ordered for an examiner to opine as to whether any of Appellant's service-connected disabilities caused or aggravated his diagnosed respiratory conditions and the record does not contain opinions as to all possible relationships between Appellant's diagnosed respiratory conditions and his service-connected disabilities, the parties agree that remand is warranted for the Board to obtain the opinions ordered within its previous remands. The Joint Motion expressly directs that the Board "must obtain an opinion regarding whether Appellant's service-connected disabilities, other than costochondritis, caused his COPD, asthma, lung nodules, and follicular lymphoma, and whether any of his service-connected disabilities aggravated his follicular lymphoma and lung nodules." To comply with the Joint Motion's directive, the Board has twice remanded this case for the necessary evidentiary development. The Board's most recent September 2020 remand explained why the VA medical opinion resulting from the prior August 2019 remand was inadequate. The processing of the Board's September 2020 remand directives has produced a new June 2021 VA examination and a set of associated medical opinions. The June 2021 VA examiner presented a medical opinion informed by review of the claims-file in addition to direct examination and interview of the Veteran. The VA examiner noted the Veteran's set of pertinent service-connected disabilities that had not previously been addressed by a VA medical opinion regarding causation, and acknowledged the Veteran's "pertinent respiratory diagnoses including COPD, asthma, lung nodules, and follicular lymphoma." The VA examiner concluded that the Veteran's respiratory disabilities are unlikely to be "due to or the result of" the Veteran's service-connected conditions, explaining: "The relevant medical literature has been reviewed. There is no medical connection between the Veteran's service connected conditions and his current respiratory diagnoses/disabilities." A December 2021 addendum medical opinion later addressed the aggravation-based theory of entitlement to secondary service connection in this case. The December 2021 VA medical opinion identifies the Veteran's correct set of service-connected disabilities and concludes: "it is less likely than not that the claimant's COPD, asthma, lung nodules, and follicular lymphoma were aggravated by service connected degenerative joint disease, bilateral lower extremity radiculopathy, costochondritis, and scar, residual of low back surgery." The authoring physician explains that "[t]here is no causal relationship between the stated conditions." The Board finds that the June 2021 and December 2021 VA medical opinions present competent evidence (prepared by trained medical professionals) that is probative on the matters addressed because the opinions rely upon the correct accurate facts and explain the analytical rationale for the conclusions based upon medical principles. These opinions present the conclusions that (1) the Veteran's service-connected disabilities have not caused his respiratory disabilities, and (2) the Veteran's service-connected disabilities have not aggravated his respiratory disabilities. The Board finds that the October 2016 VA examination report and July 2017 medical opinions similarly present competent probative evidence indicating that the Veteran's costochondritis is not a cause of the Veteran's respiratory disabilities. The consistent rationale for the medical opinions in this case is that medical principles do not recognize any pertinent relationship between the Veteran's service-connected diagnoses and his respiratory disability through which any of the service-connected pathologies could be understood to contribute to causing or aggravating the Veteran's respiratory disabilities. The Board finds that the discussed VA medical opinions, in aggregate, are adequately informed and adequately explained by the medical experts' rationales; they are competent and probative evidence weighing against the Veteran's claim. Because there is no contrary competent evidence of comparable probative value, the above-discussed VA medical opinions are persuasive. The Board finds no contrary medical opinion of record, nor otherwise any significantly contrary indications in the evidence of record. Thus, the Board finds that the VA medical opinions are persuasive in showing that the Veteran's current respiratory disabilities have not been caused or aggravated by service-connected disabilities. The Veteran's lay assertions that his respiratory disabilities are caused or aggravated by his service-connected disabilities are not competent evidence. Laypersons are competent to provide opinions establishing the etiology of a disability in some instances. However, the matter of identifying a potential nexus between this case's pertinent various medical pathologies feature complex medical questions beyond the scope of lay observation / common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not submitted or identified any competent medical evidence indicating that his respiratory disabilities have been caused or aggravated by service-connected disabilities. Here, other than the Veteran's assertions, there is no indication of a relationship, neither causation nor aggravation, between a respiratory disability and a service-connected disability. The Board is bound to apply the laws and regulations as they apply to the case, and the Board must rely upon the competent medical evidence to resolve questions of a medical nature. In this case, the Veteran's respiratory disabilities are not shown by medical evidence to have been caused or aggravated by service-connected disabilities. Because the competent medical evidence indicates that the Veteran's current respiratory disabilities are not caused or aggravated by service-connected disabilities, the Board is unable to find that the criteria for an award of service connection are met in this case. Based on the foregoing, the Board concludes that the evidence is persuasively against the claims of entitlement to service connection for a respiratory disability. Accordingly, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the claim must be denied. 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.