Citation Nr: 0809910 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 03-33 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for rheumatoid arthritis, to include as secondary to mustard gas exposure. 2. Entitlement to service connection for a lung disorder, to include as secondary to mustard gas exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and A.H. ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran served on active duty from January 1945 to July 1946. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied service connection for rheumatoid arthritis and a lung disorder. In June 2005, the veteran testified before the undersigned at a Travel Board hearing held at the St. Petersburg RO. In August 2005 and March 2006 this case was remanded for additional development. FINDING OF FACT The veteran's rheumatoid arthritis and lung disorder were not manifested during service or for many years thereafter, and are not shown to be related to his service or any events therein, to include exposure to mustard gas. CONCLUSIONS OF LAW 1. Service connection for rheumatoid arthritis, to include as secondary to mustard gas exposure, is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.316 (2007). 2. Service connection for a lung disorder, to include as secondary to mustard gas exposure, is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.316 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in December 2003, August 2005, and April 2006, the veteran was informed of the evidence and information necessary to substantiate his claims, the information required of him to enable VA to obtain evidence in support of his claims, the assistance that VA would provide to obtain evidence and information in support of his claims, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. The VCAA letters informed the veteran that he should submit any medical evidence pertinent to his claims. While complete VCAA notice was not provided to the veteran prior to the initial adjudication, the claim was readjudicated after he received all critical notice, and he has had an opportunity to respond (see December 2007 supplemental statement of the case). The veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. The procedure outlined is not at odds with the principles espoused in Pelegrini. In April 2006 the veteran received notice regarding ratings of the disabilities on appeal and effective dates of awards. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran's service medical records are associated with the claims file, as are VA and private medical records. In September 2006 the veteran underwent a VA respiratory examination for a medical opinion regarding a possible relationship between a lung disability and the veteran's military service. While the veteran's representative argues that the person who conducted the September 2006 VA respiratory examination was not qualified, the veteran must show, by evidence other than mere allegation, that the Board cannot rely on an examiner in a particular case. Cox v. Nicholson, 20 Vet. App. 563 (2007). The veteran's representative has provided no evidence that would tend to show that the physician's assistant in this case was not competent and qualified to examine the veteran, review the clams file, and then provide an opinion of etiology. Further, a VA physician reviewed and agreed with the September 2006 report. As such, the Board finds the VA examination provided to the veteran in September 2006 was adequate. As there is no objective evidence that the veteran suffered a disease or event in service related to rheumatoid arthritis, and as the evidence does not indicate that rheumatoid arthritis is associated with inservice events, an examination for a medical opinion regarding a possible relationship between rheumatoid arthritis and the veteran's military service is not necessary. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claims. Analysis Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service incurrence for certain chronic diseases will be presumed if it becomes manifest to a compensable degree within the year after service. 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.316, exposure to certain specified vesicant agents during active military service, together with the subsequent development of certain diseases, is sufficient to establish service connection in the following circumstances: (1) full-body exposure to nitrogen or sulfur mustard during active military service, together with the subsequent development of chronic conjunctivitis, keratitis, corneal opacities, scar formation, nasopharyngeal cancer, laryngeal cancer, lung cancer (excluding mesothelioma), or squamous cell carcinoma of the skin; (2) full-body exposure to nitrogen or sulfur mustard or Lewisite during active military service together with the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma, or chronic obstructive pulmonary disease (COPD); or (3) full- body exposure to nitrogen mustard during active military service together with the subsequent development of acute nonlymphocytic leukemia. Service connection will not be established under this section if there is affirmative evidence that establishes a non service-related supervening condition or event was the cause of the claimed condition. If a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). The veteran asserts that he developed the disabilities on appeal as a result of his exposure to mustard gas during service. The veteran's exposure to mustard gas during service is well documented and is not in dispute in this case. Service medical records show no complaints of rheumatoid arthritis or of a lung disability. The July 1946 discharge examination report indicates that the veteran's respiratory system was normal; a chest X-ray was negative. No musculoskeletal or connective tissue disability was noted. I. Rheumatoid arthritis The Board finds that service connection on a presumptive basis pursuant to 38 C.F.R. § 3.316 is not warranted, as rheumatoid arthritis is not among the listed conditions for presumptive consideration based on exposure to vesicant agents. The medical evidence of record fails to indicate that the veteran had rheumatoid arthritis during service, and it appears that rheumatoid arthritis was not diagnosed until decades following service (2000). In short, as rheumatoid arthritis was not present during service or within one year of discharge, and as no health professional has linked the veteran's rheumatoid arthritis to service, service connection for rheumatoid arthritis is not warranted. II. Lung disability January 2000 VA pulmonary function tests revealed an impression of mild restrictive ventilatory defect which "could represent intrinsic lung disease." A September 2006 VA respiratory examination noted that the veteran had subsequent normal pulmonary function testing (in October 2005 and October 2006) and further stated that there was no objective evidence that the veteran had any current pulmonary disease. The Board finds that service connection on a presumptive basis pursuant to 38 C.F.R. § 3.316 is not warranted, as the competent clinical medical evidence of record does not show that the veteran has been diagnosed with a chronic form of laryngitis, bronchitis, emphysema, asthma, or chronic obstructive pulmonary disease (COPD). The medical evidence of record fails to indicate that the veteran had a lung disability during service, and it appears that a lung disability was not diagnosed until decades following service. Further, a September 2006 VA examiner (following examination of the veteran and upon review of the claims file) has specifically indicated that the veteran's mild restrictive ventilatory defect was not related to service, including exposure to mustard gas. Based on the foregoing, service connection for a lung disability is not warranted. Conclusion While the Board does not doubt the sincerity of the veteran's belief regarding the service connection issues on appeal, and the veteran's statements and Board hearing testimony in this regard have been reviewed, the veteran is not competent to offer evidence which requires medical knowledge, such as the question of whether a chronic disability is currently present or a determination of etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In reviewing the foregoing, the Board has been cognizant of the "benefit of the doubt" rule, but there is not such an approximate balance of the positive evidence and the negative evidence to permit favorable determinations. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for rheumatoid arthritis, to include as secondary to mustard gas exposure, is denied. Service connection for a lung disorder, to include as secondary to mustard gas exposure, is denied.. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs