Citation Nr: 0812306 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 07-02 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for chronic bronchitis with associated chronic ear infections. 2. Entitlement to service connection for upper respiratory infection, to include as secondary to exposure to asbestos. 3. Entitlement to service connection for a sinus disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The veteran had active military service from June 1985 to November 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDINGS OF FACT 1. There is no competent medical evidence to show the veteran is currently diagnosed with chronic bronchitis with associated chronic ear infections. 2. There is no competent medical evidence to show the veteran is currently diagnosed with chronic upper respiratory infections. 3. A chronic sinus disorder was not manifested during active service, and the competent medical evidence of record does not link any current sinus disorder to such service. CONCLUSIONS OF LAW 1. Chronic bronchitis with chronic ear infections was not incurred in service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 2. Chronic upper respiratory infections were not incurred in service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 3. A sinus disorder was not incurred in service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159 (2007). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the veteran received notification prior to the initial unfavorable agency decision in July 2006. The RO's January 2006 notice letter advised the veteran what information and evidence was needed to substantiate the claims decided herein and what information and evidence must be submitted by her, namely, any additional evidence and argument concerning the claimed conditions and enough information for the RO to request records from the sources identified by the veteran. In this way, she was advised of the need to submit any evidence in her possession that pertains to the claims. She was specifically told that it was her responsibility to support the claims with appropriate evidence. Finally the letter advised her what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A March 2006 VCAA letter provided such notice. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). Service medical records are associated with claims file. Post-service treatment records and reports from the Charleston VA Medical Center (VAMC) have also been obtained. The appellant has provided treatment records and reports of Dr. Hiott, of Charleston, South Carolina. The veteran has not identified any additional records that should be obtained. The veteran was afforded a VA examination in April 2007. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2007); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). Chronic Bronchitis & Upper Respiratory Infection The veteran maintains she currently suffers from chronic bronchitis with associated chronic ear infections as well as chronic upper respiratory infections as a direct result of her active service. Specifically, the veteran alleges these conditions are the result of exposure to asbestos while in service. However, there is no competent medical evidence that she currently suffers from chronic bronchitis or chronic upper respiratory infections. The veteran indicated at her Board hearing that she continues to suffer from these conditions since separation from service, but has not provided any records of treatment or a competent medical opinion diagnosing her with either chronic bronchitis or chronic upper respiratory infections. In this regard, the Board notes an April 2007 VA examination, at which the examiner found, after a review of the veteran's medical records, that there is no indication the veteran has an upper respiratory infection, chronic ear infections, or bronchitis. The Board notes that the record indicates the veteran suffered from bronchitis in February 2007. However, at that time, the veteran was diagnosed with acute bronchitis, and there is no other indication in the record that she has suffered from repeated episodes of bronchitis since active service. While service medical records indicate the veteran suffered from bronchitis and an upper respiratory infection in service, without a diagnosis of a current disability, the Board cannot grant service connection. To prevail on the issue of service connection, there must be medical evidence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability). Thus, the Board finds that there is no competent medical evidence of current chronic bronchitis or chronic upper respiratory infections. The veteran has produced no competent medical evidence or opinion in support of her claim that she suffers from such disorders. Therefore, the claim for service connection must be denied. The Board acknowledges that the veteran herself has claimed she suffers from these disorders. However, the Board notes that as a layman, the veteran has no competence to give a medical opinion on the diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Sinus Disorder The veteran maintains that her current sinus disorder, diagnosed as allergic rhinitis, is the direct result of her active service. Service medical records indicate the veteran sought treatment for sinus problems on two occasions during active service. In July 1985, the veteran complained of a "stuffy nose" and was diagnosed with possible bronchitis and pneumonia. However, these symptoms had resolved by late July 1985. In May 1986, the veteran was treated for sinusitis. However, on examination pending service discharge in October 1989, the veteran's sinuses were evaluated as normal. In addition, an October 1989 Report of Medical History, completed by the veteran at separation from service, indicates no history of a sinus condition. As such, the Board finds that there is no competent medical evidence of a chronic sinus disorder in service. There is also no evidence of continuity of symptomatology in the instant case. Post-service medical evidence of a sinus condition is first documented in November 2000, which is over ten years post-service. The veteran sought treatment at that time for recurrent sinus congestion. The veteran was not diagnosed with allergic rhinitis until June 2003. The lapse in time between service and the first diagnosis of a sinus condition weighs against the veteran's claim. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). In sum, the Board finds that there is no evidence of a chronic sinus disorder shown within service. The evidence of record also does not support the veteran's contention that she has suffered a continuity of symptomatology since separation from active service. The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the veteran's current sinus disorder and her active service. With consideration of no chronic sinus disorder shown in service and the passage of time before the veteran sought treatment for such a condition post-service, a preponderance of the evidence is against the veteran's claim. The evidence of record contains an April 2007 VA examination, which includes an opinion as to the etiology of the veteran's current sinus disorder. The VA examiner concluded that the veteran's current symptoms "are not in any way related to service." In support of this opinion, the examiner cited the above-referenced instances of a sinus condition in service and noted the length of time between the veteran's separation from active service and the first evidence of treatment post-service. The Board acknowledges that the veteran herself has claimed she currently suffers from a sinus disorder arising from her active service. However, the Board notes that as a layman, the veteran has no competence to give a medical opinion on the diagnosis or etiology of a condition. See Espiritu, supra. Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. See Lathan, supra. In sum, the veteran has not provided competent medical evidence establishing that she currently suffers from a sinus disorder that is etiologically related to her active service. In addition, the absence of any medical records of a diagnosis or treatment for over ten years after service is probative evidence against the claim for direct service connection. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a sinus disorder, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). ORDER Service connection for chronic bronchitis with associated chronic ear infections is denied. Service connection for chronic upper respiratory infections is denied. Service connection for a sinus disorder is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs