Citation Nr: 0813064 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 05-09 655 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a respiratory disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Adams, Associate Counsel INTRODUCTION The veteran served on active duty from December 1985 to November 1987. This appeal to the Board of Veterans' Appeals (Board) arises from a June 2004 rating decision of the VA Medical and Regional Office Center in Fort Harrison, Montana. In that decision, the RO denied, inter alia, the veteran's claims for service connection for a respiratory condition and for tinnitus. In January 2005, the veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2005, and the veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2005. The veteran's claim for service connection for tinnitus subsequently was granted in an April 2007 rating decision by the RO in Phoenix, Arizona. However, also in April 2007, the Phoenix RO confirmed the denial of the claim for service connection for a respiratory condition (as reflected in a supplemental statement of the case (SSOC)). Jurisdiction over the claims file later was transferred to the RO in Lincoln, Nebraska. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The veteran's only respiratory disability is obstructive sleep apnea, which was not shown in service or for many years thereafter, and there the only competent medical opinion to address whether such disability is medically related to service weighs against the claim.. CONCLUSION OF LAW The criteria for service connection for a respiratory disability are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 and Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, 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). VA's notice requirement apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini, 18 Vet. App. at 119. However, VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a March 2004 pre-rating letter, the RO provided notice to the veteran regarding what information and evidence was needed to substantiate the claim for service connection, what information and evidence would be obtained by VA, and the need for the veteran to advise VA of and to submit any further evidence that is relevant to the claim. This letter satisfies Pelegrini's content requirements and the VCAA's timing of notice requirement.. A March 2006 post-rating letter informed the veteran how disability ratings and effective dates are assigned, as well as the type of evidence that impacts those determinations; however, the timing of this notice is not shown to prejudice the veteran. Because in the decision herein, the Board denies service connection for the claimed disability, no disability rating or effective date is being, or is to be, assigned. Hence, there is no possibility of prejudice to the veteran under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of the veteran's service medical records; VA outpatient treatment records; and the report of an April 2007 VA examination. Also of record and considered in connection with this claim are various written statements provided by the veteran and by his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the appellant has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II.. Analysis The veteran contends that service connection is warranted for a respiratory disability that is related to service. Specifically, in his March 2005 substantive appeal, the veteran stated that he developed a respiratory disability as a result of his exposure to fumes and lead-based paint during active duty. Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Such a determination requires a finding of a current disability that is related to an injury or disease incurred in service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service medical records reflect that the veteran injured his hand in February 1987 with a spray paint gun. A diagnostic assessment of subdermal paint blister was rendered. Service medical records also reflect that the veteran was treated for upper respiratory infections in service, although no chronic respiratory disability was diagnosed. A report of medical examination prepared immediately prior to the veteran's separation from active duty reveals that his chest and lungs were clinically evaluated as normal. In an accompanying report of medical history, the veteran denied past or present problems with asthma, shortness of breath, chest pain or pressure, or chronic colds. The earliest medical evidence of a chronic respiratory disability is an October 1999 VA outpatient treatment record. The veteran complained that he snored and that his sleeping partner reported that he stopped breathing at night. The veteran's health care provider noted that his history was consistent with sleep apnea. After a sleep study was conducted in May 2000, he was diagnosed with severe obstructive sleep apnea, and in June 2000 he underwent surgery to alleviate the condition. A January 2002 VA outpatient treatment record notes that his sleep apnea, though much improved, persisted. In April 2007 , the veteran was afforded a VA examination specifically to obtain information as to the nature and etiology of any current, chronic respiratory disability, to include obstructive sleep apnea. After reviewing the claims file and physically examining the veteran, the VA examiner diagnosed obstructive sleep apnea, status post uvulopalatopharyngoplasty. He specifically noted that obstructive sleep apnea was the veteran's only respiratory disability. With respect to the etiology of the veteran's obstructive sleep apnea, the examiner opined that it was less likely as not caused by or related to his exposure to lead-based paint after the spray paint gun accident in February 1987. He explained that service medical records show no residuals of the accident, such as toxic lead levels in the veteran's blood. Moreover, the examiner noted that there was no medical evidence that lead toxicity in any way causes or aggravates obstructive sleep apnea.Signigicantly, there is no contrary medical opinion of record, and neither the veteran nor his representative has provided or identified any competent evidence that would, in fact, support the claim. The Board acknowledges the veteran's belief that his sleep apnea is related to his in-service exposure to lead-based paint. However, as a layperson without appropriate medical training and expertise, the veteran is not qualified to render an opinion concerning medical causation. See Bostain v. West , 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). The same is true of the veteran's representative (who has provided argument n the veteran's behalf). Hence, none of the lay assertions in this regard has probative value. For the foregoing reasons, the claim for service connection for a respiratory disability must be denied. In reaching this conclusion, the Board has considered the benefit-of-the- doubt doctrine; however, as the preponderance of the evidence is against the veteran's claim, that doctrine is not for application in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a respiratory disability is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs