Citation Nr: 25005100 Decision Date: 04/15/25 Archive Date: 04/15/25 DOCKET NO. 19-10 918 DATE: April 15, 2025 REMANDED Entitlement to service connection for a breathing problem is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Coast Guard from April 1991 to December 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2022. A transcript of the hearing has been included with the record. In September 2022, the Board denied the Veteran's claim for an initial rating in excess of 10 percent for the Veteran's hypothyroidism, an initial rating in excess of 20 percent for radiculopathy of the left lower extremity, and an initial compensable rating prior to June 15, 2021, for bilateral knee scars. The Board did not address whether entitlement to a separate award of VA benefits for a breathing condition was warranted. The Veteran appealed the Board's denial of the above claim to the United States Court of Appeals for Veterans Claims (Court). In a February 2024 Memorandum Decision, the Court vacated the Board's decision. The Court remanded the issues to the Board for readjudication, including remanding for express consideration of whether entitlement to a separate award of VA benefits for a breathing condition is warranted. In September 2024, the Board remanded the claim for additional development. Breathing problems The Veteran asserts that his breathing problems are related to his service-connected lumbar spondylosis and is entitled to a separate service-connected disability compensation rating. The Veteran testified at a Board hearing in January 2022. The Veteran testified that his lower back pain affects his breathing. The Veteran asserted that "I have to do shallow breathing like ha, ha, ha, just trying to get through it. And then it - then after a minute or two it kind of goes away." The Veteran asserted that "it's like almost tied to my heartbeat, like I can feel it pulsating down my back." VA must consider all theories of entitlement either expressly raised by the claimant or which are reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009). VA's duty to assist applies to the entire claim, which includes assistance in developing more than one theory in support of that claim. See Robinson v. Peake, 21 Vet. App. 545, 552. The issue of secondary service connection for breathing problems that may be due to the service-connected lumbar spine disability has been raised during this appeal for an increased rating and remains pending. See Bailey v. Wilkie, 33 Vet. App. 188 (2021). Notably, the Veteran's lay evidence shows the Veteran experienced difficulty breathing and asserted that it was due to his low back pain. Thus, the issue of secondary service connection is reasonably raised, and VA must address the implied secondary service connection theory of entitlement. Id. The Veteran was afforded a VA examination in October 2024. The VA examiner noted the Veteran did not have a diagnosis of a respiratory condition, specifying that there was insufficient evidence to warrant a diagnosis for the claimed breathing problem. However, the VA examiner noted the normal FEV1/FVC ratio and mild reduction in FVC, along with the Veteran's lack of current symptoms, indicated that further clinical evaluation was necessary for a definitive diagnosis. The VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted that in a Consultation Report dated August 5, 2011, the Veteran reported engaging in regular exercise, specifically riding a bicycle. The Veteran denied any history of exertional chest pain or shortness of breath at rest and during activities. His activity level was assessed at over 4 METs, indicating a healthier and more active lifestyle and a higher level of physical fitness and endurance. The VA examiner noted that during the Initial Patient Evaluation and follow-up office visits on May 15, 2012, and June 20, 2012, the Veteran continued to deny any symptoms of shortness of breath. The VA examiner noted that clinical examinations revealed clear lung sounds bilaterally upon auscultation, with normal respiratory effort. The VA examiner noted that medical records from 2014 to 2021 showed no documented complaints of breathing problems. Respiratory rates were consistently within the normal range, recorded at 16 to 18 breaths per minute. The VA examiner noted that upon reviewing the Veteran's complete medical records, including entrance and in-service medical evaluations, no documentation of breathing problems was identified. The VA examiner additionally opined that the Veteran's claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. The Veteran has been service-connected for lumbar spondylosis. The VA examiner noted that according to the VA examination, the Veteran was not diagnosed with any breathing problems, including asthma, and reports that his condition has remained the same with no current symptoms concerning his respiratory health. The VA examiner noted the recent PFT dated January 13, 2025, revealed decreased FEV1 (78 percent) and normal FVC (87 percent), with a normal FEV1/FVC ratio of 86 percent, a positive bronchodilator response, near-normal spirometry, and a positive bronchodilator effect suggesting reactive airways. While the PFT results suggested possible asthma due to the bronchodilator response, the normal FEV1/FVC ratio and mild reduction in FVC, along with the Veteran's lack of current symptoms, indicate that further clinical evaluation was necessary for a definitive diagnosis. The VA examiner noted that medical literature indicated that lumbar spondylosis, primarily characterized by the degeneration of the lower spine, typically did not have a direct anatomical effect on breathing. The lumbar vertebrae were located below the diaphragm, the primary muscle involved in respiration, making it less likely for lumbar spine issues to directly impact respiratory function. The following points illustrate the negative relationship. The lumbar spine was situated in the lower back, while the muscles and nerves involved in respiration (such as the diaphragm and intercostal muscles) were associated primarily with the thoracic and cervical regions of the spine. The nerves responsible for the diaphragm function originated from the cervical spine (specifically, the phrenic nerve from C3 to C5), rather than the lumbar spine. Consequently, degenerative changes in the lumbar region typically did not affect respiratory-related nerves. While lumbar spondylosis may cause localized pain, stiffness, or movement limitations in the lower back, it did not usually restrict chest expansion or diaphragm movement. The VA examiner noted that any potential impact on breathing attributed to lumbar spondylosis was likely indirect, arising from posture-related discomfort that may have led to shallow breathing patterns. The VA examiner noted this was a consequence of pain rather than a direct impairment of respiratory function. The VA examiner additionally opined that the Veteran's claimed condition was less likely than not aggravated beyond its normal progression by his service-connected condition. The VA examiner noted that per medical literature, no direct evidence supported that lumbar spondylosis (a degenerative spinal condition) specifically exacerbates breathing issues. Lumbar spondylosis predominately impacted the lower back and was more commonly associated with symptoms like back pain, stiffness, and reduced mobility, which may indirectly lead to discomfort but generally did not interfere with respiratory function. Additionally, there was no sufficient evidence to prove an increased manifestation of the Veteran's claimed condition. The VA examiner noted that while the PFT results suggest possible asthma due to the bronchodilator response, the normal FEV1/FVC ratio and mild reduction in FVC, along with the Veteran's lack of current symptoms, indicate that further clinic evaluation was necessary for a definitive diagnosis. The Board finds the October 2024 VA examination to be inadequate because the VA examiner was unable to provide a definitive diagnosis but stated that "[w]hile the PFT results suggest possible asthma due to the bronchodilator response, the normal FEV1/FVC ratio and mild reduction in FVC, along with the Veteran's lack of current symptoms, indicate that further clinic evaluation is necessary for a definitive diagnosis." Additionally, when a disease consists of active and inactive stages during which the condition improves, VA must provide for the conduct of an adequate examination during the active stage of the disease. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The Board finds that an additional VA examination, preferably during a flare-up, is needed to address these deficiencies. Therefore, the Board finds that an additional VA examination is required. The matters are REMANDED for the following action: 1. Obtain and associate with the file any outstanding VA treatment records. 2. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, obtain a VA examination from an appropriately qualified VA medical professional regarding the Veteran's breathing problems. The examination should be conducted during an active phase of the disease if possible. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed to allow the VA examiner to make a determination on whether there is a diagnosis of a breathing problem. The examiner should elicit a full history from the Veteran. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file, including a copy of this REMAND, has been reviewed. Following a review of the evidence of record, the examiner must opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's breathing problem was either (a) caused by, or (b) aggravated by the Veteran's service-connected disabilities. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding his symptomatology and medical history, including statements regarding the onset, severity, and duration of his symptoms, must be specifically acknowledged, and considered in formulating any opinions concerning his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Glass, 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.