Citation Nr: 0811604 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 03- 01 597 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a pulmonary disease, claimed as secondary to Agent Orange exposure. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The appellant is a veteran who served on active duty from May 1954 to May 1956 and from August 1956 to March 1981. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2001 rating decision by the Philadelphia RO. In January 2006, a Travel Board hearing was held before the undersigned. A transcript of this hearing is associated with the claims file. In May 2006 these matters were remanded for additional development and notice. FINDINGS OF FACT 1. The veteran's current pulmonary disability was not manifested in service, and is not shown to be related to his service to include as due to exposure to Agent Orange therein. 2. The veteran's hypertension was not manifested in service or in the first postservice year, and is not shown to be related to his service. CONCLUSIONS OF LAW 1. Service connection for a pulmonary disease is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 2. Service connection for hypertension is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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 her or his possession that pertains to the claim in accordance with 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). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) further held that the notice requirements of the VCAA applied to all 5 elements of a service connection claim (i.e., to include ratings assigned and effective dates of awards). December 2000, February 2001, and May 2001 letters (prior to the initial adjudication of the claims) provided initial VCAA-mandated notice regarding the claims. The veteran was advised of what was necessary to establish service connection and of his and VA's responsibilities in the development of the claims. In May 2002, May 2003, April 2005, and December 2006 letters, he 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. He was also advised to submit relevant evidence in his possession, and provided notice regarding disability ratings and the effective dates of awards. The October 2002 statement of the case (SOC) and April 2005, July 2005, and September 2007 supplemental SOCs (SSOCs) notified the veteran of what the evidence showed, of the governing legal criteria, and of the basis for the denial of the claims. While complete notice was not provided prior to the initial adjudication of the claim, it did not affect the essential fairness of the adjudication process. He has received all critical notice, and has had ample opportunity to participate in the adjudicatory process. The claims were readjudicated in September 2007 after all critical notice was provided. He is not prejudiced by any technical notice timing or content defect that may have occurred earlier, nor is it otherwise alleged. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Regarding VA's duty to assist, the RO has attempted on several occasions, albeit unsuccessfully, to obtain the veteran's service medical records (SMRs). Correspondence from the National Personnel Records Center (NPRC) reflects that the veteran's SMRs were not at that facility, but had been sent to the Pittsburgh RO in March 1981 (on separation from service). VA has a heightened duty to assist the veteran in developing his claims since the records have been lost or destroyed. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Alternate source development for SMRs is not possible here because the veteran has not identified treatment facilities or hospitals, or dates of treatment where he was since for pertinent complaints in service. The record includes VA treatment records and private medical statements; and the veteran has been advised what records were secured/considered. On remand, the Board requested treatment records from the veteran's private physician (which the RO had previously sought, but did not receive). The veteran was advised of the importance of these records as the SMRs were not available. The records (apparently dating back to 1981) have not been submitted, and now appear to be unavailable, as the physician died during the intervening period, and his office was apparently vandalized. With respect to this development the Board notes that the "The duty to assist is not always a one-way street". See Wood v. Derwinski, 1 Vet. App. 190 (1991). The veteran's claim has been pending many years, and through most of them, it appears, his private physician's records were available, yet the veteran made no effort to secure them for the record, despite being advised that they constituted evidence critical to his claim. While the veteran was not afforded examinations as to these service connection claims, the Board concludes that a VA examination is not necessary. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court explained its interpretation of 38 C.F.R. § 3.159(c)(4). This regulation provides that an examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability; and (B) establishes that the veteran suffered an event, injury, or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. The Court noted that the third prong of 38 C.F.R. § 3.159(C)(4) is a low "threshold" standard. The above-listed factors as to when a VA examination is necessary are not shown, and even the low 'threshold" standard is not met. There is no postservice evidence of either disability until years after service and no competent evidence that suggests there may be a nexus between the claimed disabilities and the veteran's service (including as due to Agent Orange exposure therein). Under these circumstances, examinations for medical nexus opinions are not necessary. 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004). VA's duty to assist is met. It is not prejudicial to the veteran for the Board to proceed with appellate review. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). II. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 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. To prevail on a claim of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). III. Analysis A. Pulmonary Disease If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease manifested to a degree of 10 percent or more the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. §§ 1112, 1116; 38 C.F.R. §§ 3.307, 3.309(e). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 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 relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The veteran's SMRs are, for the most part, lost. The only available record is the report of a pre-induction examination for his first period of service which is silent for any pulmonary abnormality. The earliest available postservice medical records are some VA treatment records for the period between 1985 and 1991; they reflect that the veteran was treated for an upper respiratory infection and trachea bronchitis. The earliest record showing respiratory problems is dated in February 1985, notes the veteran's complaints were of about a week's duration, and notes that he had not had any significant medical problems. VA treatment records in March 2000 note that veteran was evaluated for chronic bronchitis. He reportedly had a history of pneumonia/acute respiratory failure in 1983. The impression was chronic bronchitis, possible asthma, and post- nasal drip. Pulmonary function tests (PFTs) were interpreted as normal. An addendum by another physician notes that the veteran's symptoms of chronic bronchitis were somewhat uncommon in a non-smoker in the absence of occupational exposure, and comments that one possibility is that there was some associated asthma, which could be regarded as essentially an eosinophilic chronic bronchitis and that asthma remained a clinical diagnosis without PFT criteria per se. A September 2000 record noted that the veteran had a normal spirometry and that there was moderate diffusion abnormality. His primary care physician, Dr. C. O., indicated that he possibly had interstitial lung disease. A CT scan of the thorax later that month revealed calcified subcarinal lymph nodes compatible with prior granulomatous disease; there was no evidence of interstitial lung disease. A September 2000 statement from Dr. H. G., a private physician, indicates that he had treated the veteran for approximately 18 years, including for chronic respiratory infection. The veteran related to him that he had been exposed to herbicides in Vietnam and had no history of smoking or working with fumes or gases; the only such exposure would have been in service. A September 2000 statement from Dr. C. O. indicates that she treated the veteran for chronic pulmonary disease and that pulmonary function studies showed a significant abnormality in oxygen and likely interstitial lung disease. She opined that it was highly likely that this condition was a result of exposure to Agent Orange in Vietnam. An October 2000 VA pulmonary record indicates that the veteran had shortness of breath and wheezing at night as well as a bitter fluid coming up his throat. PFTs revealed no obstruction or restriction. The impression was that his symptoms were a combination of GERD and asthma. In December 2001, the veteran reported that his symptoms had greatly improved; it was noted that PFTs in July revealed an obstructive pattern while PFTs in November did not. The physician indicated that this pattern suggested asthma. In an addendum, the Director of Pulmonary Studies opined that based on the findings an official diagnosis of asthma could be made. In December 2001, Dr. H. G. submitted a statement similar to his previous statement and added that the veteran reported having a history of Agent Orange exposure in Vietnam. September 2002 chest X-rays revealed mild discoid atelectasis that involved the lingual; there was no pulmonary vascular congestion or pleural effusion. At a January 2006 Travel Board hearing, the veteran testified that he started to develop respiratory problems while still in Vietnam. He also noticed respiratory problems in Germany, and added that he was provided inhalers in the military. He began receiving treatment for respiratory problems in 1981, after his separation from service. His wife testified that he had respiratory problems and hypertension when she married him, in 1981. The veteran contends that he has a chronic pulmonary disease which either began in service or resulted from his exposure to Agent Orange in Vietnam. As the record shows he served in Vietnam, he is entitled to the presumptive provisions of 38 U.S.C.A. § 1116. However, the veteran's respiratory disability diagnosed, asthma, is not a disease enumerated in 38 C.F.R. § 3.309(e), nor has any respiratory disease diagnosed/considered a possible diagnosis in this case enumerated in § 3.309(e). Accordingly, there is no basis for application of the presumptive provisions of 38 U.S.C.A. § 1116. While the veteran may still establish service connection for his respiratory disease (most recently diagnosed as asthma) as due to Agent Orange exposure by submitting competent evidence showing such etiology (see Combee, supra). He has not presented any such competent evidence. Dr. H. G. submitted three statements and in each instance he merely noted that the veteran was seen for upper respiratory infections and that the veteran reported that he was exposed to herbicides in Vietnam. At no time did he offer an opinion relating the disabilities treated to Agent Orange exposure. [Notably, when interstitial lung disease was considered a possible diagnosis, Dr. C. O, the veteran's VA primary care physician, offered an opinion that linked such disease to exposure to Agent Orange. However, diagnostic studies since have clearly established that the veteran does not have that form of lung disease. Consequently, that opinion has no probative value in the matter at hand.] The veteran has testified that he had respiratory problems in service and that he sought treatment for such shortly after service. His wife has also testified that he has had respiratory disability since service. Since his SMRs are unavailable, there are no medical records to corroborate this assertion. The veteran's representative asserts that since the veteran served in combat (a matter not in dispute), his statements should be viewed in the context of 38 U.S.C.A. § 1154(b). The reduced evidentiary burden of 38 U.S.C.A. § 1154(b) only applies to the question of service incurrence, and not to the question of either current disability or nexus to service, both of which generally require competent medical evidence. See Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). Even if the veteran did have respiratory symptoms in service, his own (or his wife's) assertions relating his current pulmonary disability/asthma to service/complaints therein are not competent evidence. Medical evidence is needed to establish medical nexus. See Espiritu v. Derwinski, 2 Vet. App. 492, 294 (1992). Even though Dr. H. G.'s statements indicate that he began treating the veteran in early 1980s, he did not specifically indicate when he began treating the veteran specifically for respiratory problems. [Significantly, records which could have clarified the record in this regard (and which the VA sought and the veteran/his physician could have provided) were not provided when they were available.] In summary, the record does not show that the veteran's chronic respiratory disability became manifest in service and persisted, or is related to any event, injury, or disease in service, to include Agent Orange exposure. The preponderance of the evidence is against this claim, and it must be denied. B. Hypertension A preinduction examination (about 3 months prior to the veteran's entrance on active duty) found blood pressure readings of 120/96 and 120/88; there was no diagnosis of hypertension. 1985-1986 VA records show blood pressure readings of 110/80, 122/88, and 110/70. There were no diagnoses of hypertension, and in February 1985 it was noted that the veteran had no significant medical problems. A May 1986 VA record notes that it was unclear whether the veteran had a history of hypertension. A 1991 record notes that he had a history of hypertension. A September 1999 record notes that the veteran had hypertension. A May 2000 record notes that he reported having hypertension since 1987. September 2000 and December 2001 statements from Dr. H. G. indicated that he was the veteran's physician for approximate 18 years and had treated him for hypertension. At a January 2006 Travel Board hearing, the veteran testified that his blood pressure started going up in service and that he was given medication for it. His wife testified that he had hypertension when she married him, in 1981. In an August 2006 statement, Dr. H. G., provided information similar to that in his prior statements in September 2000 and December 2001. In a February 2007 statement, Dr. H. G.'s daughter advised that he had died in December 2006, that his office was vandalized several times, and that aside from a few reports from other physicians, she had none of the veteran's medical records. The medical evidence of record reflects that the veteran has a diagnosis of hypertension. However, there is no competent (medical) evidence that hypertension was manifested in service or in the veteran's first postservice year. The Board does not find credible the veteran and his wife's accounts that he has received treatment for hypertension since his separation from service for the following reasons: Their accounts conflict with the earliest available postservice medical records, VA treatment records dated in 1985, which note that the veteran had no significant medical problems (and a blood pressure of 110/80). Furthermore, it is clinically noted (in May 2000) that the veteran reported having hypertension diagnosed in 1987. By virtue of their very nature, contemporaneous clinical records have greater probative value than later recollections of remote events. Finally, when records that would have corroborated the accounts (if they showed what the veteran alleges) were sought while they were still available (and after the veteran was advised that such corroborating evidence was critical to his claim), he did not submit them. The general statements by his private physician (and while he was still alive also did not respond to a request for the records) are not an adequate substitute as they do not indicate when hypertension was first diagnosed/treated. Thus, there is no medical evidence to support the contention that the veteran has been treated for hypertension since service. Significantly, hypertension is not a disability capable of lay observation. Consequently, service connection for hypertension on the basis that it became manifest in service, or on a presumptive basis (as a chronic disease under 38 U.S.C.A. § 1112) is not warranted. The earliest clinical notations of elevated blood pressure readings/a possibility the veteran may have hypertension were approximately five or six years after service (and as was noted above, the veteran himself reported in 2000 that hypertension was diagnosed in 1987). No medical professional has related the veteran's hypertension to the veteran's service. because they are laypersons, the assertions by the veteran and his wife relating his hypertension to his service are not competent evidence (and as was noted above, their accounts that he has had hypertension treated since service are not credible. In light of the foregoing, the preponderance of the evidence is against this claim. Accordingly, it must be denied. ORDER Service connection for a pulmonary disease is denied. Service connection for hypertension is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs