PSYCHOSIS

Summary

The veteran, a Marine Corps veteran who served from January 1981 to March 1985, including service at Camp Lejeune, appeals the denial of service connection for multiple conditions. The Board denied claims for an acquired psychiatric disorder (bipolar disorder), chronic fatigue, congestive heart failure, diabetes mellitus Type 2 (DM II), hypertension, erectile dysfunction, neck condition, right hip condition, right shoulder condition, and sciatic nerve condition. For the psychiatric disorder, the Board found the veteran's lay testimony regarding the etiology of bipolar disorder was not competent to establish a medical nexus, and the service treatment records (STRs) were negative for any mental disorder. For chronic fatigue, the Board noted negative STRs and post-service records, finding the veteran's lay testimony regarding fatigue was not sufficient to establish a current disability or nexus. For congestive heart failure, the Board found no in-service complaints or diagnoses, and post-service records did not document the condition, deeming the veteran's lay opinion on secondary causation incompetent. For DM II, hypertension, and erectile dysfunction, the Board noted conflicting reports from the veteran and found a private medical opinion from Dr. B. to be of limited probative value due to its reliance on the veteran's uncorroborated statements, lack of addressing the time gap between exposure and diagnosis, failure to rule out other risk factors, and lack of specific causation for the contaminants. The Board also found the veteran's claims regarding these conditions and his neck, hip, shoulder, and sciatic nerve issues lacked credible evidence of a nexus to service or impairment in earning capacity, noting the absence of in-service complaints and significant delays in reporting symptoms. The claim for chronic obstructive pulmonary disease (COPD) was remanded for a VA examination and opinion on its relationship to service, specifically regarding recurrent cough documented in STRs.

Rationale

STRs negative for mental disorder; Lay testimony not competent for etiology; No pre-decisional duty to assist error

Full Decision Text

Citation Nr: A26039290
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 210219-141917
DATE: April 28, 2026

ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include diagnosed bipolar disorder, is denied.

Entitlement to service connection for chronic fatigue is denied. 

Entitlement to service connection for congestive heart failure is denied. 

Entitlement to service connection for diabetes mellitus Type 2 (DM II) is denied.

Entitlement to service connection for erectile dysfunction is denied. 

Entitlement to service connection for hypertension is denied.

Entitlement to service connection for a neck condition is denied. 

Entitlement to service connection for a right hip condition is denied. 

Entitlement to service connection for sciatic nerve condition is denied. 

Entitlement to service connection for torn rotator cuff, right shoulder (right shoulder condition) is denied.

REMANDED

Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded.

FINDINGS OF FACT

1. The persuasive evidence of record reflects that the Veteran's acquired psychiatric disorder, to include diagnosed bipolar disorder, is not related to his active service.

2. The evidence of record indicates that the Veteran has not had a chronic fatigue disability or related symptoms causing impairment in earning capacity during the pendency of his claim or approximate thereto.

3. The evidence of record indicates that the Veteran has not had a congestive heart failure disability or related symptoms causing impairment in earning capacity during the pendency of his claim or approximate thereto.

4. The persuasive evidence of record reflects that the Veteran's DM II was not related to his active service (including presumed exposure to water contaminants at Camp Lejeune), and/or secondary to service-connected disability.

5. The persuasive evidence of record reflects that the Veteran's erectile dysfunction was not related to his active service (including presumed exposure to water contaminants at Camp Lejeune), and/or secondary to service-connected disability.

6. The persuasive evidence of record reflects that the Veteran's hypertension was not related to his active service (including presumed exposure to water contaminants at Camp Lejeune), and/or secondary to service-connected disability.

7. The evidence of record indicates that the Veteran has not had a neck condition or related symptoms causing impairment in earning capacity during the pendency of his claim or approximate thereto.

8. The evidence of record indicates that the Veteran has not had a right hip condition or related symptoms causing impairment in earning capacity during the pendency of his claim or approximate thereto.

9. The evidence of record indicates that the Veteran has not had a sciatic nerve condition or related symptoms causing impairment in earning capacity during the pendency of his claim or approximate thereto.

10. The evidence of record indicates that the Veteran has not had a right shoulder condition or related symptoms causing impairment in earning capacity during the pendency of his claim or approximate thereto.

CONCLUSIONS OF LAW

1. The criteria for service connection for acquired psychiatric disorder, to include diagnosed bipolar disorder, have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for chronic fatigue have not been met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 

3. The criteria for service connection for congestive heart failure have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 

4. The criteria for service connection for DM II have not been met. 38 U.S.C. §§ 1131, 1132, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.

5. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1131, 1132, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.

6. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 1132, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.

7. The criteria for service connection for a neck condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303
.S.C. §§ 1131, 1132, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.

6. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 1132, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.

7. The criteria for service connection for a neck condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 

8. The criteria for service connection for a right hip condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 

9. The criteria for service connection for a sciatic nerve condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 

10. The criteria for service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the Marines from January 1981 to March 1985, to include service at Camp Lejeune.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2020 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

In a February 2021 Decision Review Request: Board Appeal (Notice of Disagreement, VA Form 10182), the Veteran timely appealed the April 2020 decision to the Board and selected the direct review docket. As the Veteran has elected direct review under the Appeals Modernization Act (AMA), the Board will only consider the evidence of record as of the date of the April 2020 rating decision. 38 C.F.R. § 20.301. 

Service connection

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space 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).

In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. §3.310(a).

A necessary element for establishing a service connection claim is the existence of current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C. § 1110 and 38 U.S.C. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).

1. Entitlement to service connection for an acquired psychiatric disorder 

The Veteran attributed his psychiatric disorder to the 1983 American embassy bombing in Beirut, Lebanon. He testified that while he was not present at the time of the attack, a Marine he was close to was killed in the bombing. See Board hearing transcript, p. 4. 

The Board is bound by the favorable findings identified by the RO in its April 2020 rating decision. Favorable findings included the diagnosis of bipolar disorder. 38 C.F.R. § 3.104(c).

The Veteran's service treatment records (STRs) do not document any complaints, treatment, or diagnoses related to any mental disorder. Following service, there
 141 (1992).

1. Entitlement to service connection for an acquired psychiatric disorder 

The Veteran attributed his psychiatric disorder to the 1983 American embassy bombing in Beirut, Lebanon. He testified that while he was not present at the time of the attack, a Marine he was close to was killed in the bombing. See Board hearing transcript, p. 4. 

The Board is bound by the favorable findings identified by the RO in its April 2020 rating decision. Favorable findings included the diagnosis of bipolar disorder. 38 C.F.R. § 3.104(c).

The Veteran's service treatment records (STRs) do not document any complaints, treatment, or diagnoses related to any mental disorder. Following service, there was no documented psychiatric disorder until September 2012 VA treatment records noted a presumptive diagnosis of bipolar disorder. A December 2017 VA mental health assessment confirmed a bipolar disorder diagnosis. 

Upon review, the Board finds that entitlement to service connection for a psychiatric disorder, to include diagnosed bipolar disorder, is not warranted.    

The Board acknowledges the Veteran's assertions that his psychiatric disorder symptoms, to include his claims of developing "anger, depression, and insomnia," began in service following the loss of a "father-like figure" from the Marines in the 1983 American embassy bombing in Beirut. While the Veteran is competent to report his symptoms, he is not shown to have the necessary knowledge, training, and expertise necessary to provide a competent opinion as to the etiology of an acquired psychiatric disorder, to include diagnosed bipolar disorder, to service. It relates to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4. ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").   

Notably, prior to the April 2020 rating decision on appeal, the Veteran only provided generalized statements that he has insomnia, anxiety, and depression related to service. See April 2020 VA Form 21-526EZ, fully developed claim. Thus, even if the Board were to find his assertions that his psychiatric disorder is related to service to be credible, it cannot remand to provide a VA examination under the AMA, since no pre-decisional duty to assist error has occurred. 

As the persuasive evidence weights against the Veteran's claim, VA's benefit-of-the-doubt doctrine is not for application. The Board finds that service connection for an acquired psychiatric disorder, to include diagnosed bipolar disorder, is not warranted.

2. Entitlement to service connection to chronic fatigue 

The Veteran asserted that he has chronic fatigue related to viral syndrome/congestion during service. See Board hearing transcript, p. 8.

A December 1983 STR noted a diagnosis of viral syndrome after the Veteran complained of a sore throat and sinus congestion.

The August 1984 report of medical examination prior to discharge noted normal lung and chest and the Veteran did not report any fatigue issues. 

Upon review, the Board finds that entitlement to service connection for chronic fatigue is not warranted. Specifically, while the December 1983 STRs document a viral syndrome diagnosis related to the Veteran's complaints of a sore throat and sinus problems, the August 1984 report of medical examination prior to service discharge noted normal lung and chest. The Board acknowledges the testimony of the Veteran at his Board hearing that he did not report fatigue prior to service discharge because he did not think was "very important." See Board hearing transcript, p.9. Nonetheless, the post-service treatment records do not document any diagnosis of chronic fatigue, or related symptoms. Notably, July 2019 VA treatment records reported "no fever, chills, fatigue, [or] insomnia." 

In addition, the question of whether the Veteran has chronic fatigue condition, or related disorders is a complex medical question. It relates to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d at 1377, n. 4.

Moreover, prior to the April 2020 rating decision on appeal, the Veteran only provided generalized statements that he has chronic fatigue related to service. See April 2020 VA Form 21-526EZ, fully developed claim. Thus, even if the Board were to find his assertions that his claimed condition is related to service to be credible, it cannot remand to provide a VA examination under the AMA, since no pre-decisional duty to assist error has occurred. 

As the persuasive evidence weights against the Veteran's claims, VA
 that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d at 1377, n. 4.

Moreover, prior to the April 2020 rating decision on appeal, the Veteran only provided generalized statements that he has chronic fatigue related to service. See April 2020 VA Form 21-526EZ, fully developed claim. Thus, even if the Board were to find his assertions that his claimed condition is related to service to be credible, it cannot remand to provide a VA examination under the AMA, since no pre-decisional duty to assist error has occurred. 

As the persuasive evidence weights against the Veteran's claims, VA's benefit-of-the-doubt doctrine is not for application. The Board finds that service connection for chronic fatigue is not warranted.

3. Entitlement to service connection for congestive heart failure

The Veteran asserted that he has congestive heart failure secondary to service-connected bronchitis. Specifically, he testified that his bronchitis made it "impossible" to exercise, which in turn caused him to gain weight leading to his heart failure. See Board hearing transcript, p. 11. 

The Veteran's service treatment records (STRs) do not document any complaints, treatment, or diagnoses related to any heart issues. 

Notably, post-service treatment records do reveal that the Veteran has any congestive heart failure, or related issues.

Upon review, the Board finds that entitlement to service connection for congestive heart failure is not warranted. The Veteran did not have any heart issues in service. Moreover, following service, there persuasive evidence of record did not document any heart failure, or related symptoms.  

The Board acknowledges that the Veteran is competent to attest to his observations such as heart issues. See Jandreau, 492 F.3d at 1376-77; Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). He is not, however, competent to opine on complex medical matters such as rendering a diagnosis for congestive heart failure, which involves questions that relate to internal medical process that extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n.4. 

The Board notes that the Veteran has not been provided with a VA examination and/or opinion regarding the instant claim; however, the Board finds that such is not necessary in the instant case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, prior to the April 2020 rating decision, there was no credible evidence of any medical relationship between his claimed congestive heart failure and his service-connected bronchitis. Bardwell v. Shinseki, 24 Vet. App. 36 (2010); Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  While the Veteran testified to why he believed he had current congestive heart failure which was secondary to service-connected bronchitis, this did not trigger any duty to provide a VA examination because this testimony (even presuming its credibility) occurred after the rating decision on appeal. Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the instant claim. Moreover, it cannot remand to provide a VA examination under the AMA, since no pre-decisional duty to assist error has occurred. 

As the persuasive evidence weights against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application. The Board finds that service connection for congestive heart failure is not warranted.

4. Entitlement to service connection for DM II, hypertension, and erectile dysfunction. 

The Board is bound by the favorable findings identified by the RO in its April 2020 rating decision. Favorable findings included the diagnoses of DM II, hypertension, and erectile dysfunction. 38 C.F.R. § 3.104(c).

The Veteran gave conflicting reports regarding the etiology of DM II, hypertension, and erectile dysfunction. In his April 2020 VA Form 21-526EZ, fully developed claim, he stated generally that his conditions were related to active service. At his November 2024 Board hearing, he testified that his DM II and hypertension were secondary to weight gain caused by service-connected bronchitis, while his erectile dysfunction was caused by his DM II. See Board hearing transcript, pp. 12-13, 18. Moreover, the following month, in a December 2024 medical opinion from Dr. B. (submitted within the 90-day period for evidence submission following the Board hearing), the Veteran reported that his conditions were secondary to Camp Leje
 gave conflicting reports regarding the etiology of DM II, hypertension, and erectile dysfunction. In his April 2020 VA Form 21-526EZ, fully developed claim, he stated generally that his conditions were related to active service. At his November 2024 Board hearing, he testified that his DM II and hypertension were secondary to weight gain caused by service-connected bronchitis, while his erectile dysfunction was caused by his DM II. See Board hearing transcript, pp. 12-13, 18. Moreover, the following month, in a December 2024 medical opinion from Dr. B. (submitted within the 90-day period for evidence submission following the Board hearing), the Veteran reported that his conditions were secondary to Camp Lejeune Water Contaminants (CLWC). 

The Veteran's service personnel records documented that he served with the 2nd Supply Battalion located in Camp Lejeune from June 1981 until January 1983. 

The Veteran's STRs do not document any complaints, treatment, or diagnoses, related to diabetes, hypertension or erectile dysfunction.

The Board notes that the following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, Non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f).  DM II, hypertension, and erectile dysfunction are not diseases for which presumptive service connection based on exposure to contaminated water at Camp Lejeune may be granted. Id.

Notwithstanding the foregoing presumption provisions for exposure to contaminated water at Camp Lejeune, a claimant is not precluded from establishing service connection with proof of direct causation. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

In his December 2024 medical opinion, Dr. B. opined that the Veteran's DM II, hypertension, and erectile dysfunction were at least as likely as not secondary to CLWC exposure. As rationale, he noted that the Veteran served in Camp Lejeune "for more than a month" and that "[i]t has been claimed by the Veteran that his mere exposure to CLWC caused the Veteran's DM II, [hypertension], and [erectile dysfunction]." Dr. B. also noted that several studies note that CLWC have a component of benzene, and there are "at least 70 other contaminants which have been identified. Unfortunately to this date all components of the contaminant water have yet to be identified." Dr. B. posited that "benzene [has] an inherent component of dioxin which affected this Veteran's medical history." He concluded that based on medical literature, he was "certain that this Veteran's exposure to dioxin from CLWC" at least as likely as not caused the Veteran's DM II and hypertension. Dr. B. further concluded that the Veteran's medical history was clear that his DM II caused his erectile dysfunction as the studies show that diabetes is "a leading cause of [erectile dysfunction]." 

However, the Board finds that Dr. B.'s private medical opinion is of limited probative value. First, Dr. B. appears to base his positive opinion primarily on the Veteran's report that "his mere exposure to CLWC" caused DM II, hypertension, and erectile dysfunction. Specifically, Dr. B. did not address the three-decade gap between the Veteran's presumed exposure to water contaminants at Camp Lejeune and the onset and diagnosis of his conditions (as first documented in February 2016 VA treatment records). Additionally, Dr. B. did not address or rule out other risk factors for diabetes and hypertension (e.g. age, obesity, lack of exercise, family history, smoking, etc.), instead concluding that exposure to CLWC caused the Veteran's hypertension and DM II (which in turn caused his erectile dysfunction).

Moreover, while Dr. B. cited medical literature indicating "environmental pollutants, such as dioxins, [are] associated with an increased risk of developing DM II," he did not demonstrate how the water contaminants which the Veteran was exposed to at Camp Lejeune caused the development of his conditions. As Dr. B. conceded, there are 14 disease conditions that were identified as having limited/suggestive evidence of an association with CLWC. However, DM II, hypertension, and erectile dysfunction are not among these 14 conditions. Thus, while Dr. B. cited medical evidence noting
 history, smoking, etc.), instead concluding that exposure to CLWC caused the Veteran's hypertension and DM II (which in turn caused his erectile dysfunction).

Moreover, while Dr. B. cited medical literature indicating "environmental pollutants, such as dioxins, [are] associated with an increased risk of developing DM II," he did not demonstrate how the water contaminants which the Veteran was exposed to at Camp Lejeune caused the development of his conditions. As Dr. B. conceded, there are 14 disease conditions that were identified as having limited/suggestive evidence of an association with CLWC. However, DM II, hypertension, and erectile dysfunction are not among these 14 conditions. Thus, while Dr. B. cited medical evidence noting a relationship between the development of DM II and certain "dioxins and organic solvents," he did not specify how the harmful contaminants from CLWC caused the Veteran's DM II or hypertension.   

Crucially, the Dr. B. did not examine the Veteran and instead relied on the Veteran's report that his conditions are related to CLWC exposure.

Moreover, the Board finds that the Veteran's DM II, hypertension, and erectile dysfunction is not related to active service or secondary to service-connected disability. As noted above, the STRs do not evidence that his conditions began during service, and aside from the Veteran's generalized statements, there is no evidence that they are otherwise related to active service. Moreover, the Veteran is not competent to opine on complex medical matters such as a finding an etiological relationship between his DM II, hypertension, and erectile dysfunction and service (or service-connected disability), which involves questions that relate to internal medical process that extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n.4. 

Overall, the Board finds that based upon the Veteran's conflicting reports regarding the etiology of his conditions, together with Dr. B.'s inadequate medical opinion (notably based on general medical literature that does not show that water contaminants from Camp Lejeune caused the Veteran's conditions, the absence of discussion of the 30-year passage of time from service to the diagnosis of the conditions, and the absence of discussion/ruling out other known risk factors for developing DM II and hypertension), the persuasive evidence is against finding that the Veteran's DM II, hypertension, and erectile dysfunction were related to active service, secondary to service-connected bronchitis and/or secondary to CLWC exposure. 

The Board notes that the Veteran has not been provided with a VA examinations and/or opinions regarding the instant claims; however, the Board finds that such is not necessary in the instant case. McLendon, 20 Vet. App. at 79. In this regard, prior to the April 2020 rating decision, aside from generalized, conclusory statements, there was no credible evidence of any medical relationship between his DM II, hypertension, and erectile dysfunction and his service, service-connected bronchitis, and/or CLWC. Bardwell, 24 Vet. App. at 36; Waters, 601 F.3d at 1278.  While the Veteran testified to why he believed his conditions were secondary to service-connected bronchitis and/or CLWC, this did not trigger any duty to provide a VA examination because this evidence (even presuming its credibility) was not submitted until after the rating decision on appeal. Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the instant claims. Moreover, it cannot remand to provide a VA examination under the AMA, since no pre-decisional duty to assist error has occurred. 

Thus, as the persuasive evidence weights against the Veteran's claims, the benefit-of-the-doubt doctrine is not for application. The Board finds that service connection for DM II, hypertension, and erectile dysfunction is not warranted.

5. Entitlement to service connection for neck, right hip, right shoulder and sciatic nerve conditions. 

The Veteran asserted that his claimed neck, right hip, right shoulder and sciatic nerve conditions are related to physical activities he performed as a combat engineer. Specifically, he testified he worked with a lot of heavy equipment and had to do heavy lifting, including carrying an All-Purpose Lightweight Individual Carrying Equipment (ALICE) pack. See, e.g., Board hearing transcript, pp. 15-18; 21.

The Veteran's STRs do not document any complaints, treatment, or diagnoses related to neck, right hip, right shoulder and sciatic nerve conditions. 

Post-service, in an October 2018 VA occupational therapy treatment record, the Veteran reported back, neck and shoulder pain. The report also noted that the Veteran worked full time selling cars; there was no evidence that the Veteran's pain impacted his ability to work.
 related to physical activities he performed as a combat engineer. Specifically, he testified he worked with a lot of heavy equipment and had to do heavy lifting, including carrying an All-Purpose Lightweight Individual Carrying Equipment (ALICE) pack. See, e.g., Board hearing transcript, pp. 15-18; 21.

The Veteran's STRs do not document any complaints, treatment, or diagnoses related to neck, right hip, right shoulder and sciatic nerve conditions. 

Post-service, in an October 2018 VA occupational therapy treatment record, the Veteran reported back, neck and shoulder pain. The report also noted that the Veteran worked full time selling cars; there was no evidence that the Veteran's pain impacted his ability to work. 

Upon review, the Board finds that entitlement to service connection for neck, right hip, right shoulder and sciatic nerve conditions are not warranted. Regarding his claimed neck, right shoulder, and sciatic nerve conditions, the Board acknowledges that the October 2018 VA treatment records document neck, shoulder and back pain. However, the same occupational therapy assessment report also noted the Veteran's full-time work as a car salesman, and there was no evidence indicating that his reported pain impacted his ability to work, or otherwise cause impairment in earning capacity. Regarding, the Veteran's claimed right hip condition both the STRs and post-service treatment records do not document any right hip condition. 

In addition, the Board notes that the Veteran did not have any complaints of neck, right hip, right shoulder and sciatic nerve conditions during service and did not complain about any of the above issues until more than three decades after service discharge. Moreover, to the extent that the Veteran complained of back, neck, and right shoulder pain, the persuasive evidence reflects that it did not cause impairment in earning capacity, as noted by the October 2018 VA treatment records.

Thus, the evidence of record reflects that the Veteran does not have or has not had at any time during the pendency of the claim or approximate thereto a neck, right hip, right shoulder and sciatic nerve conditions, or related symptoms, that cause impairment in earning capacity. Romanowsky v. Shinseki, 26 Vet. App. at 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary's adjudication of the claim"); Saunders, 886 F.3d at 1364-65 (pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1131). 

The Board notes that the Veteran has not been provided with a VA examination and/or opinion regarding the instant claims; however, the Board finds that such is not necessary in the instant case. McLendon v. Nicholson, 20 Vet. App. at 79. In this regard, prior to the April 2020 rating decision, there was no credible evidence of any medical relationship between his claimed neck, right hip, right shoulder and sciatic nerve conditions and the physical activities as a combat engineer during service. Bardwell v. Shinseki, 24 Vet. App. at 36; Waters v. Shinseki, 601 F.3d at1278.  While the Veteran testified to why he believed he had current neck, right hip, right shoulder and sciatic nerve conditions which were related to physical activities in service, this did not trigger any duty to provide a VA examination because this testimony (even presuming its credibility) occurred after the rating decision on appeal. Therefore, the Board finds that a VA examinations and/or opinions are not necessary to decide the instant claim. Moreover, it cannot remand to provide a VA examination under the AMA, since no pre-decisional duty to assist error prior to the date of the AOJ decision on appeal has occurred. 

For the foregoing reasons, the persuasive evidence reflects that the Veteran does not currently have and has not had signs or symptoms of these conditions proximate to the filing of his service connection claims in April 2020. The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

REASONS FOR REMAND

Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded.

The Veteran
 to provide a VA examination under the AMA, since no pre-decisional duty to assist error prior to the date of the AOJ decision on appeal has occurred. 

For the foregoing reasons, the persuasive evidence reflects that the Veteran does not currently have and has not had signs or symptoms of these conditions proximate to the filing of his service connection claims in April 2020. The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

REASONS FOR REMAND

Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded.

The Veteran asserted that his COPD is related to his service.

The Board is bound by the favorable findings identified by the RO in its April 2020 rating decision. Favorable findings included an in-service event as the STRs document treatment for recurrent cough. 38 C.F.R. § 3.104(c). Moreover, October 2018 VA treatment records document the Veteran's COPD.

The Board notes that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. at 81.

Here, the Veteran's claims file contains complaints of recurrent cough in service, which he claims to have caused diagnosed COPD. However, there is no medical opinion on file to determine the etiology of his COPD to service.

Therefore, a remand based is warranted to afford the Veteran an VA examination and opinion. McLendon, 20 Vet. App. at 79; 38 U.S.C. § 5103A(d). 

The matter is REMANDED for the following action:

1. Schedule the Veteran for an examination with an appropriate clinician regarding his COPD. The electronic claims folder and copy of this remand must be available for review.

The examiner should provide an etiology opinion regarding whether the Veteran's COPD is related to active service, to include complaints of recurrent cough as documented by his service treatment records.

 

 

Marcus N. Fulton

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Kovacs, Mayer

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.