Citation Nr: 0813342 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-06 997A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for pulmonary tuberculosis. 2. Entitlement to service connection for malaria. 3. Entitlement to service connection for asthma. 4. Entitlement to service connection for chronic lung disability. ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran had recognized guerilla service from November 1944 to November 1945 (he was in a missing status from November 1944 to January 1945); he had Regular Philippine Army service from November 1945 to January 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of Philippines, which, in pertinent part, denied entitlement to service connection for the above conditions. FINDINGS OF FACT 1. Pulmonary tuberculosis was not present in service or within three years of the veteran's discharge from service, and is not etiologically related to service. 2. The veteran does not have malaria. 3. Current asthma is not etiologically related to service. 4. A current lung disability is not etiologically related to service. CONCLUSIONS OF LAW 1. Pulmonary tuberculosis was not incurred or aggravated during active service, and its incurrence or aggravation during service may not be presumed. 38 U.S.C.A. §§ 1110, 1112 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. Malaria was neither incurred in nor aggravated by active service. 38 U.S.C.A. § 1110; 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Asthma was neither incurred in nor aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 4. A chronic lung ailment was neither incurred in nor aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 5126 (West 2002 & Supp. 2007) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Under the VCAA, VA 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 request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in August 2005, prior to the initial adjudication of the claims, the RO notified the veteran of the evidence needed to substantiate his claims for entitlement to service connection. The letter also satisfied the second and third elements of the duty to notify by informing the veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. With respect to the fourth element of VCAA notice, the August 2005 letter contained a notation that the veteran should submit any evidence in his possession pertinent to the claims on appeal. The veteran has substantiated his status as a veteran. He was notified of the second and third elements of the Dingess notice by the August 2005 letter. He was not provided information regarding the effective date or disability rating elements of his claim in December 2006. This notice was defective because it was provided in a supplemental statement of the case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (holding that VCAA notice must be provided prior to adjudication of the claim, and cannot be provided in post-decisional documents such as a supplemental statement of the case). The RO provided additional notice in an April 2007, but this notice was defective because there was no adjudication of the claim after the notice was provided. Id. Any notice error will be presumed prejudicial unless VA can show that the error did not affect the essential fairness of the adjudication and persuade the Court that the purpose of the notice was not frustrated, for example by demonstrating "(1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law." Sanders v. Nicholson, 487 F.3d 881, 888-9 (Fed. Cir. 2007), George-Harvey v. Nicholson, 21 Vet. App. 334, 339 (2007) . Because the veteran's claims are being denied, and absent service connection, no effective date or rating could be awarded. Hence, the veteran is not prejudiced. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the veteran, including service medical records, records from various federal agencies, and private medical records. The veteran has reported in-service hospitalization that is not shown in the available service medical records. All available records have been requested, and those records indicate that the veteran was not treated for any disease or disability in service. Hence requests for additional records are unlikely to yield results or assist the veteran in substantiating the claim. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for getting an examination under the VCAA is low. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The veteran has not been afforded VA examinations and medical opinions have not been obtained in response to his claims but no such examinations or opinions are required. The medical evidence of record is sufficient to decide the claims and there is no reasonable possibility that such examinations would result in evidence to substantiate the claims. While the record does establish current diagnoses of pulmonary tuberculosis and bronchitis, there is no probative medical evidence of a nexus between these conditions and the veteran's military service, and the veteran has not reported a continuity of symptomatology from the time of service to the present. The veteran has reported treatment in service for tuberculosis. Tuberculosis is a chronic disease. 38 C.F.R. §§ 3.307, 3.309. As such, if tuberculosis is adequately identified in service, and at any time thereafter, service connection would be conceded. 38 C.F.R. § 3.303(b). The report of tuberculosis in service was made decades after the events in question and is inconsistent with the service medical records showing normal lungs and chest X-ray examination at separation from service or with the report in the service medical records that no diseases were incurred during service. Hence, the report of in-service tuberculosis is not credible, and does not serve to trigger the duty to provide an examination or obtain an opinion. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding that lay statements were not rendered insufficient by the absence of confirming medical evidence, but that the evidence could serve to support a finding that lay statements were not credible). With regard to the chronic lung disability claim, there is no evidence linking a current disability to service. The veteran has not reported a continuity of symptomatology between the current bronchitis and the claimed treatment for lung disability in service, and there is not competent medical evidence of such a link. There is no competent evidence of current malaria or asthma or of signs or symptoms of such conditions. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first 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) (2007). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as active tuberculosis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Pulmonary Tuberculosis The veteran contends that he incurred pulmonary tuberculosis while serving as a member of the Philippine Guerillas during World War II. Specifically, he contends that he was diagnosed with pulmonary tuberculosis while receiving care at an emergency clinic in Kapangan in the Philippines. Service records are negative for evidence of pulmonary tuberculosis. The examination report for discharge in January 1946 shows that the veteran's lungs were normal and a chest X-ray was negative. The post-service medical evidence of record establishes that the veteran was diagnosed as having pulmonary tuberculosis of both lungs in April 1978 by his private physician following a physical examination and chest X-rays. His doctor noted that the veteran provided a history of pulmonary tuberculosis during military service in and stated that he was treated for this condition in an emergency clinic in Kapangan, Mountain Province. Additional post-service medical records show that the veteran was admitted to Benguet General Hospital in July 2003. A chest X-ray indicated minimal fibro-reticular pulmonary tuberculosis. Where, a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships, of service. 38 U.S.C.A. § 1154(b) (West 2002). Section 1154(b) sets forth a three step sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute. First, it must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." Finally, if the first two requirements are met, VA "shall accept the veteran's evidence as "sufficient proof of service connection," even if no official record exists of such incurrence exists. In such a case a factual presumption arises that that the alleged injury or disease is service connected. Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996); 38 C.F.R. § 3.304 (1996). Competent evidence of a current disability and of a nexus between service and a current disability is still required. Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). Under Collette v. Brown, 82 F.3d. 389 (Fed. Cir. 1996) and Caluza v. Brown, 7 Vet. App. 498 (1995) the correct application of 38 U.S.C.A. § 1154(b) requires a three-step, sequential analysis: "Satisfactory evidence" is defined as "credible evidence that would allow a reasonable fact finder to conclude that the alleged injury or disease was incurred in or aggravated by the veteran's combat service." (2) Is the proffered evidence "consistent with the circumstances, conditions, or hardships of such service." (3) Once the first two steps are met, the Secretary "shall accept" the veteran's evidence as "sufficient proof of service connection," even if no official record of such incurrence exists, unless the Government can meet the burden of showing "clear and convincing evidence to the contrary." Id. In Collette, it was expressly held that, during the first two steps of this sequential analysis, the credibility determination must be made as to the veteran's evidence standing alone, not weighing the veteran's evidence with contrary evidence. Only in the third step may contrary evidence, such as the report of medical examination at separation, be brought into play. Collette, 82 F.3d. 393. There is evidence that the veteran engaged in combat. There is, however, clear and convincing evidence to the contrary of his relatively recent report of treatment for tuberculosis in service. The examination for separation from service shows that the lungs were normal and contains the information that no diseases were incurred in service. Consistent with the examination, the veteran completed an affidavit at the time of his separation from service in which he reported that he had incurred no illnesses in service. While the private physician recorded the veteran's report of tuberculosis in service, no medical professional has actually provided an opinion linking current tuberculosis to service. See LeShore v. Brown, 8 Vet. App. 406 (1995) (medical history reported by a lay person is not transformed into competent evidence by virtue of being recorded by a medical professional). The record clearly shows a current diagnosis of minimal pulmonary tuberculosis. As just discussed, the evidence does not support a finding of tuberculosis in service. There is no evidence of tuberculosis or its residuals during the three year presumptive period after service or in the decades prior to 1978. The veteran has not reported a continuity of symptomatology since service and there is no competent medical opinion linking current tuberculosis to a disease or injury in service. The absence of any clinical evidence for decades after service weighs the evidence against a finding that the veteran's pulmonary tuberculosis was present in service or in the presumptive period after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In essence, the only opinion linking the veteran's current disability to service is that of the veteran. As a lay person, he is not competent to provide an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In sum, the post-service medical evidence of record shows that the first evidence of the veteran's claimed disability was more than 30 years after his separation from active duty service. In addition, there is no medical evidence that the veteran's pulmonary tuberculosis is related to his active duty service. The Board therefore concludes that the evidence is against a nexus between the veteran's claimed disability and his active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is therefore, denied. 38 U.S.C.A. § 5107(b) (West 2002). Malaria, Asthma, Chronic Lung Ailment As noted above, service connection requires competent evidence showing the existence of a present disability. Shedden, 381 F.3d at 1163, 1167; see also Caluza, 7 Vet. App. at 498. With respect to the veteran's contentions that service connection is warranted for malaria, there is no evidence of this condition at any time since service. Post-service medical records show that in April 1978 the veteran reported being diagnosed with chronic lung disease, asthma, and malaria during active duty service. Following an examination and chest X-ray, his private physician did not report symptoms or diagnoses of malaria. The veteran has not reported current symptoms of malaria and there is no other medical evidence of these conditions. Hence, the weight of the evidence is against a finding of current malaria or asthma. The private hospital records show a diagnosis of bronchitis in July 2003. Although it is unclear whether the bronchitis was asthmatic, the hospital report arguably provides evidence of current asthma and a lung disability. There is, however, no evidence linking the current asthma or lung disability, diagnosed as bronchitis, to service. While the veteran has reported in-service treatment for asthma, he has not reported a continuity of symptomatology and the normal findings at service separation belie such continuity. There is no competent medical opinion linking the current bronchitis to service. The evidence is therefore against the grant of service connection for malaria, asthma, or other chronic lung disability. Reasonable doubt does not arise, and the claim must be denied. ORDER Entitlement to service connection for pulmonary tuberculosis is denied. Entitlement to service connection for malaria is denied. Entitlement to service connection for asthma is denied. Entitlement to service connection for chronic lung disability is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs