Citation Nr: 18160654
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 15-27 732
DATE:	December 27, 2018
ORDER
Entitlement to service connection for chronic bronchitis, asthma, and restrictive bronchiolitis is granted.
REMANDED
Entitlement to an initial rating higher than 10 percent for right shoulder degenerative arthritis is remanded.
FINDING OF FACT
The evidence is at least evenly balanced as to whether the Veteran’s chronic bronchitis, asthma, and restrictive bronchiolitis began during active service.
CONCLUSION OF LAW
With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for chronic bronchitis, asthma, and restrictive bronchiolitis are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from May 1995 to November 1995, February 2001 to July 2001, March 2002 to July 2002, August 2002 to July 2003, August 2003 to January 2004, and October 2005 to October 2006. His awards include the Combat Infantryman Badge, Army Commendation Medal, and Bronze Star Medal. These matters come before the Board of Veterans’ Appeals (Board) from January 2015 and February 2015 rating decisions. An informal hearing conference with a Decision Review Officer was conducted in June 2015 in lieu of a formal hearing and a report of that conference has been associated with the Veteran’s claims file.
As a final preliminary matter, the Board points out that the Veteran requested a Board hearing before a Veterans Law Judge on his August 2015 substantive appeal (VA Form 9). He was notified that his Board hearing had been scheduled for a date in November 2018 by way of letters dated in September 2018 and October 2018. These letters were sent to his address of record and were not returned as undeliverable. Copies of these letters were also sent to his representative. The Veteran failed to appear for the scheduled Board hearing. To the Board’s knowledge, he has not requested that the hearing be rescheduled. Accordingly, the Board will proceed to adjudicate the Veteran’s claims as if his hearing request had been withdrawn. See 38 C.F.R. § 20.704 (d).
Entitlement to service connection for chronic bronchitis, asthma, and restrictive bronchiolitis
Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
The Veteran contends that he has current respiratory disability which had its onset in service. 
The Board concludes, for the following reasons, that the Veteran has current diagnoses of chronic bronchitis, asthma, and restrictive bronchiolitis and that the evidence is at least evenly balanced as to whether these disabilities began during active service.
Medical records, including a September 2014 VA core-managed care note and the report of a January 2015 VA respiratory examination, show the Veteran has current diagnoses of chronic bronchitis, asthma, and restrictive bronchiolitis. There is also evidence of respiratory symptoms in service and evidence of continuous symptoms in the years since service which indicates that the current chronic bronchitis, asthma, and restrictive bronchiolitis were incurred in service. In this regard, the Veteran’s service treatment records include a September 2006 post-deployment health assessment form on which he reported that he had experienced difficulty breathing during his deployment to Iraq from February to August 2006. Moreover, his post-service medical records and lay statements indicate that his respiratory symptoms (including shortness of breath and a cough) have continued in the years since service.
The Veteran is competent to report continuous respiratory problems in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). There is nothing to explicitly contradict his reports and they are consistent with the evidence of record. Thus, the Board finds that the reports of continuous respiratory symptoms in the years since service are credible.
In sum, the evidence reflects that the Veteran experienced respiratory problems in service and that there have been continuous respiratory symptoms in the years since service. He has also been diagnosed as having current chronic bronchitis, asthma, and restrictive bronchiolitis. There is no medical opinion contrary to a conclusion that the current chronic bronchitis, asthma, and restrictive bronchiolitis had their onset in service. Hence, the Board finds that the evidence is at least evenly balanced as to whether the evidence indicates that the current chronic bronchitis, asthma, and restrictive bronchiolitis had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the currently diagnosed chronic bronchitis, asthma, and restrictive bronchiolitis is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”).
REASONS FOR REMAND
Entitlement to an initial rating higher than 10 percent for right shoulder degenerative arthritis is remanded.
While the Veteran was most recently afforded a VA examination regarding his service-connected right shoulder disability in January 2015, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) and Correia v. McDonald, 28 Vet. App. 158, 168 (2016). As for Sharp, the Veteran reported flare ups of right shoulder pain. The examiner stated that an opinion as to the extent of any additional functional impairment of the right shoulder in terms of range of motion loss during flare ups could not be provided without resort to mere speculation, but no explanation or rationale was provided for this opinion. Moreover, the January 2015 examination report does not contain passive range of motion measurements or pain on both weight-bearing and non weight-bearing testing. Hence, the Veteran should be afforded a new VA shoulder examination upon remand.
In addition, a July 2015 VA mental health note reflects that the Veteran was in receipt of Social Security Administration (SSA) disability benefits for an unspecified disability. A remand is required to allow VA to request these outstanding and potentially relevant records.
Also, a May 2015 VA orthopedics consultation note indicates that the Veteran received treatment for his right shoulder disability at University Orthopedics. A remand is required to allow VA to obtain authorization and request these relevant outstanding private treatment records.   
Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Medical Center (VAMC) in Providence, Rhode Island and are dated to December 2016. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the remaining issue on appeal. A remand is required to allow VA to obtain them.
The matter is REMANDED for the following action:
1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for right shoulder disability, to include the dates of any such treatment.
Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for right shoulder disability from University Orthopedics and any other sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile.
2. Obtain the Veteran’s federal disability and/or supplemental security income records from the SSA. Document all requests for information as well as all responses in the claims file.
3. Obtain the Veteran’s VA treatment records from the VAMC in Providence, Rhode Island for the period since December 2016; and all such relevant records from any other sufficiently identified VA facility.
4. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, schedule the Veteran for an examination by an appropriate clinician of the current severity of his service-connected right shoulder disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the right and left shoulder. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected right shoulder disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare up.
The examiner must provide reasons for any opinion given.

 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Elwood, Counsel 

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