Citation Nr: 0813708 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 06-07 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a sinus disorder, to include sinusitis and rhinitis. 2. Entitlement to service connection for a throat condition. 3. Entitlement to service connection for residuals of pneumonia, to include bronchiectasis. 4. Entitlement to service connection for renal cell carcinoma. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran served on active duty from September 1964 to September 1967 with service in Vietnam from July 1965 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In that decision the RO, in pertinent part, denied entitlement to service connection for sinusitis, a throat condition and residuals of pneumonia. A hearing was held in July 2007 at the RO before VBA (Veterans Benefits Administration) personnel. A transcript of the hearing is of record. The claim of entitlement to service connection for renal cell carcinoma is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence on file does not reflect that the veteran has currently diagnosed sinusitis or a throat disorder. 2. The medical evidence does not show that currently diagnosed rhinitis had its origins in service or is etiologically related to service or any incident therein. 3. There is no current clinical diagnosis of bronchiectasis. 4. There is no clinical indication that the veteran has any currently manifested residuals of pneumonia which was treated in service in December 1964; and any currently manifested pulmonary symptomatology, to include bronchitis diagnosed decades after the veteran's discharge from service, has not been etiologically linked to service or any incident therein. CONCLUSIONS OF LAW 1. A sinus disorder, to include sinusitis, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. A throat condition was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 3. The criteria are not met for service connection for rhinitis. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 3.380 (2007). 4. Bronchiectasis was not incurred in or aggravated by service directly or presumptively. 38 U.S.C.A. §§ 1110, 1112, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). 5. Service connection is not warranted for claimed residuals of pneumonia. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters: Duties to Notify & to Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The RO provided the appellant with VCAA notice in July and August 2004, prior to the initial decision on the claims made in January 2005. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the veteran in the notice letters about the information and evidence that is necessary to substantiate his claims for service connection. Specifically, the letters stated that the evidence must show that that he had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. In addition, the RO notified the veteran in the 2004 letters about the information and evidence that VA will seek to provide. In particular, the letters indicated that reasonable efforts would be made to help him obtain evidence necessary to support his claims and that VA was requesting all records held by Federal agencies, including service medical records, military records, and VA medical records. The veteran was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claims. The RO also notified the veteran about the information and evidence that he was expected to provide. Specifically, the letters notified the veteran that he must provide enough information about his records so that they could be requested from the agency or person that has them. It was also requested that he complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, if there were any private medical records that he would like VA to obtain on his behalf. In addition, the letters indicated that it was still the veteran's responsibility to support his claims with appropriate evidence. The letters also requested that the veteran send to VA any medical reports that he had. In addition, the Board finds that the veteran was otherwise fully notified of the need to give to VA any evidence pertaining to his claims. In this regard, the RO has informed the appellant in the rating decision, Statement of the Case (SOC) and a Supplemental SOC of the reasons for the denial of his claims and, in so doing, informed him of the evidence that was needed to substantiate those claims. Further, through his statements, the veteran has demonstrated his understanding of what is necessary to substantiate his claim, i.e., any notice defect was cured by the veteran's actual knowledge. See Sanders v. Nicholson, 487 F.3d. 881 (Fed. Cir. 2007; see also Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). In any event, the Board finds that a reasonable person could be expected to understand from the notice what was needed to substantiate the service connection claims and thus the essential fairness of the adjudication was not frustrated. Id. As such, the Board concludes that, even assuming a notice error, that error was harmless. See Medrano v. Nicholson, 21 Vet. App. 165 (2007); Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above, which held that the notice requirements of 38 U.S.C. § 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, this 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. Id. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his service connection claim, as well as notice of the type of evidence necessary to establish a disability rating or an effective date for the disability on appeal in a letter issued to him in March 2006, after the initial adjudication of the claim. The RO then reconsidered the veteran's claims, as evidenced by the May 2006 and August 2007 Supplemental Statements of the Case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (holding that VA cured any failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Therefore, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Moreover, as a practical matter since the Board concludes below that the veteran is not entitled to service connection for his claimed disorders, any question as to the appropriate disability rating or effective date to be assigned is rendered moot. In addition, the duty to assist the appellant has also been satisfied in this case. The veteran's service medical records were obtained and appear to be complete. These records were reviewed by both the RO and the Board in connection with the claims. The record also contains pertinent and copious post-service private and VA medical records and statements. VA has also assisted the veteran and his representative throughout the course of this appeal by providing them with a SOC, which informed them of the laws and regulations relevant to his claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. VA evaluations were conducted in 2007. For the reasons noted above, the Board finds that there is no reasonable possibility that further assistance would aid the veteran in substantiating the claims, and the veteran has specifically indicated (in March 2006) that he does not have any additional evidence or information to provide in support of his claims. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Factual Background In 2004, the veteran filed original service connection claims for sinusitis, a throat disorder and for residuals of pneumonia. The veteran's DD Form 214 shows that he served with the United States Marine Corp (USMC) and that his MOS was Supply Administration and Procurement Clerk. The veteran's decorations include a Vietnam Service Medal, Vietnam Campaign Medal, and a National Defense Service Medal. Service medical records (SMRs) show that on enlistment examination conducted in July 1964, clinical evaluation of the lungs, chest and heart, nose and sinuses, and the throat were normal and an X-ray film of the chest was negative. The veteran denied having sinusitis, but indicated that he suffered from hay fever. The examiner noted that the veteran had allergies. The veteran was hospitalized for more than 2 weeks in December 1964 at a United States Naval Hospital in Camp Pendleton, California, for treatment of left lower lobe pneumonia. The veteran's symptoms included cough, fever and mucoid sputum. On admission, a chest X-ray film had shown an infiltrate of the left lower lobe, and it was reported that complete clearing of the infiltrate was shown by the time of discharge. It was also reported that during the 3 days prior to discharge, the veteran developed mild upper respiratory symptoms associated with lymphoid hyperplasia of the pharynx and the these symptoms were subsiding by discharge. In August 1967, the veteran was treated at the USMC station hospital in Santa Ana, California, for symptoms of sore throat, sinus congestion and cough, assessed as viral nasopharyngitis. The separation examination report dated in late August 1967 revealed that clinical evaluation of the lungs, chest and heart, nose and sinuses, and the throat were normal and an X-ray film of the chest was negative. The veteran noted that he had experienced symptoms of sinusitis, hay fever and chronic cough. He commented that his health was fine but that he had been bothered by symptoms of excess phlegm due to sinus infection and acute pneumonia, and indicated that a physician had told him that this would eventually clear up. Post-service, a VA examination was conducted in October 1970, at which time the veteran had no complaints relating to the sinuses, throat or relating to his pneumonia in service. Examination of the nose, sinuses and throat, and respiratory system was described as clear throughout and a chest X-ray film was negative. Examination of the cardiovascular system revealed no evident hypertrophy or murmurs and normal rate and rhythm. The record includes a January 2000 report of a physical examination for employment purposes which indicated that a chest X-ray film was negative except for indications of residual bronchitis which was resolving. It was also reported that pulmonary function testing was normal. The veteran underwent another employment physical evaluation in July 2002 at which time the lungs were clear with no pleural abnormalities seen and a chest x-ray film was normal. Pulmonary function/spirometry testing was normal. VA medical records dated in November 2000 revealed that the veteran complained of a week long history of a sore throat and cough with yellow sputum. Examination of the throat was normal and tenderness of the maxillary sinuses was documented. Sinusitis was diagnosed. The veteran was seen in May 2003 with complaints of cough, sputum, fever and chills assessed as bronchitis and fever. He was seen in the emergency room with flu symptoms in October 2003 assessed as viral upper respiratory infection. A May 2004 entry noted a history of double pneumonia during service in 1964 and indicated that the veteran suffered from hypertension and possible ischemic heart disease. X-ray films of the chest taken in May 2004 revealed no acute infiltrates in the lungs and no enlargement of the heart. Pulmonary function testing conducted in May 2004 revealed that FVC, FEV1 and FEV1/FVC ratio were normal. Diffusing capacity was described as normal. The impression indicated that spirometry was normal and that lung volumes demonstrated air trapping and hyperinflation. In a statement dated in September 2004, the veteran mentioned that he was a retired chiropractor and discussed some of the events which occurred in service which he believed causes and/or contributed a claimed chronic lung problem. In support of the claim, the veteran provided for the record medical treatise evidence relating to bronchiectasis, and indicated that he believed that this was the proper diagnosis of his condition. VA X-ray films of the chest taken in May 2006 showed that the lungs were well-expanded without pneumothorax identified. There was no indication of acute infiltrates, vascular congestion, or pleural fluid identified in the lungs. Assessments of chronic cough due to rhinitis with post-nasal "gtt" (drip) and GERD (gastroesphogeal reflux disease) and low suspicion of bronchiectasis were made. X-ray films of the chest taken in February 2007 showed that the lungs were well-expanded without indication of acute infiltrates or vascular congestion. The veteran was seen for a VA pulmonary consult in April 2007. The veteran reported that he had experienced chronic cough with white sputum since service in 1965. He also gave a history of chronic rhinitis and frequent upper respiratory infections. The examiner noted that the veteran believed that he had bronchiectasis secondary to pneumonia treated in service, based on reading medical information from the Internet. The examiner did observe that the veteran had post-nasal gtt and dyspepsia. After reviewing the pertinent records, the examiner opined that it was doubtful that the veteran had bronchiectasis due to pneumonia treated in service. It was explained that bronchiectasis typically developed only after severe pneumonia and that it was clear that the veteran's pneumonia was not severe. It was also observed that CXR (chest x-ray) was now normal. The doctor indicated that he could not completely rule out the diagnosis without a CT scan and ordered one. The examiner also opined that the veteran's cough was due to post-nasal gtt and GERD. A CT scan report of May 2007 revealed no pulmonary nodule, interstitial lung disease or bronchiectasis. No plural plaques or pleural effusion was present nor was there any indication of adenopathy. The veteran provided testimony at a hearing held before VBA personnel in July 2007. He testified that chronic bronchitis had been diagnosed by VA. Legal Analysis The veteran states that he was treated for pneumonia during service in 1964 and maintains that chronic residuals including sinusitis, a throat condition and a lung condition, described as bronchiectasis, are attributable to service, specifically that incident therein. The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, as to the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the 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). Certain conditions, including bronchiectasis, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary, however. 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). In order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). As an initial matter, the veteran has indicated that he participated in combat during his service in Vietnam from July 1965 to March 1967 and that as such, the provisions of 38 U.S.C.A. § 1154(b) are applicable to the service connection claims. Having reviewed the veteran's DD 214 and service personnel records, there is at least a suggestion that the veteran may in fact have participated in combat, although this is not firmly established in this case. For injuries or diseases which are alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof to determine service connection. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); Gregory v. Brown, 8 Vet. App. 563 (1996). Specifically, VA regulations provide that, in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2007); see generally Peters v. Brown, 6 Vet. App. 540, 543 (1994). In this case, the Board notes that the veteran was treated for pneumonia in December 1964 prior to his tour of duty in Vietnam, and therefore it cannot be maintained that this condition was combat service related. Further, symptoms of sinus and throat problems documented in August 1967 were noted several months after the veteran's return from Vietnam and were treated in the United States, again indicating that these symptoms were not related to combat service, if any. Essentially, the veteran has not specifically maintained that any of the service connection claims on appeal are related to combat. However, even if this were the case, the service medical records already actually document the incurrence of pneumonia and of symptoms affecting the throat and sinuses during service. Accordingly, even if the relaxed evidentiary standard provided under 38 U.S.C.A. § 1154(b) is applied in this case, it can afford no further benefit, as it is already documented and established that the veteran was treated for pneumonia in service and also experienced symptomatology affecting the sinuses and throat. The analysis required by 38 U.S.C.A. § 1154(b), applies only as to whether an injury or disease was incurred or aggravated at that time, i.e., in service. It does not apply to the questions of whether there is a current disability or a nexus connecting any current disability to service, which are the critical matters in this case. See Collette, Gregory, supra. The provisions of 38 C.F.R. § 1154(b) do not obviate the requirement that a veteran submit medical evidence of a causal relationship between his current condition and his military service. Wade v. West, 11 Vet. App. 302 (1999). A. Sinus and throat conditions The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The record in this case contains no current clinical evidence of sinusitis or of a throat condition. In this case, the service medical records are entirely negative for a diagnosis of sinusitis or a throat condition, although documenting some acute symptoms of a sore throat and relating to the sinuses and nasal passages in August 1967, associated with a diagnosis of viral nasopharyngitis. The separation examination report dated in late August 1967 revealed that clinical evaluation of the throat, nose and sinuses was normal. The only post-service diagnosis of sinusitis which the Board could locate in the file was made in 2000, more than 30 years after the veteran's discharge from service. The Board cannot locate any diagnosis of sinusitis made thereafter and cannot identify any current clinical diagnosis of a throat disorder. The Court has recently addressed what constitutes "current disability." The Court held that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, the claims for sinusitis and a throat condition were filed in 2004; as of that time there was not of record any clinical diagnosis of either sinusitis or a throat condition (resolved or unresolved) nor has there been at any time subsequently since the claims have been pending. In summary, the law limits entitlement for service-related diseases and injuries to cases where the underlying in- service incident has resulted in a current disability. Degmetich, 104 F. 3d at 1332; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Thus, because the evidence shows that the veteran does not currently have a current diagnosis of sinusitis or of any throat condition; service connection for those disabilities is not warranted. Moreover, even if the Board were to presume that the record contained a current diagnosis of both sinusitis and a throat disorder, the claims would still fail since there is no competent medical evidence of record establishing or even suggesting that either of these claimed conditions is in any way etiologically related to service. The Board observes that the clinical evidence of record does contain a diagnosis of rhinitis with post-nasal gtt and GERD, made in May 2006. Diseases of allergic etiology, including bronchial asthma and urticaria, may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress nor as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380 (2007). The service medical records show that the veteran was diagnosed with rhinitis in 2006. As noted previously, the service records documented symptoms affecting the throat and sinuses in August 1967, but do not show a diagnosis of rhinitis during service or until more than 35 years after the veteran's discharge from service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Currently diagnosed rhinitis has never been etiologically linked to the veteran's period of service, to include as a residual of pneumonia treated in service. In this case, no probative and/or competent evidence has been presented which establishes or even suggests that a current diagnosis of rhinitis is etiologically related to service. A requirement for a showing of such a relationship has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit, which has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between the veteran's service (or a service connected disability) and the disability claimed. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Therefore, because the medical evidence does not show that the veteran had rhinitis during service or that he now has rhinitis due to service, service connection for rhinitis is not established. In summary, lacking any clinical evidence of a current diagnosis of sinusitis or a throat disorder, and lacking competent/probative evidence of an etiological link between a currently claimed sinus disorder, to include clinically diagnosed rhinitis, and the veteran's period of active service, to include any incident therein, the Board finds that service connection for both sinus and throat disorders, is not warranted. The benefit of the doubt doctrine is not for application where, as here, the weight of the evidence is against the claims. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Residuals of pneumonia to include bronchiectasis The service medical records firmly establish that the veteran was treated for pneumonia in December 1964. However, there is no indication of any recurrence or pneumonia or documented residuals thereof throughout the remainder of the veteran's period of service or at any time post-service. Significantly, the separation examination report, dated in August 1967, reflects that clinical evaluation of the lungs, chest and heart were normal and that an X-ray film of the chest was negative. Similarly, when the veteran was examined in October 1970, examination of the respiratory system was described as clear throughout and a chest X-ray film was negative. Accordingly, it is clear that no clinical pulmonary abnormality of the lungs or chest was identified on separation or during the first post service year. The veteran maintains that he has currently manifested residuals of pneumonia which are attributable to service. Specifically he asserts that he has a pulmonary disorder which is most properly characterized as bronchiectasis. However, the post-service medical evidence is completely negative for a definitive diagnosis of bronchiectasis. Comprehensive testing to rule out that diagnosis as shown by a CT scan performed in May 2007 confirmed that there was no evidence of pulmonary nodule, interstitial lung disease or bronchiectasis. As the veteran was not diagnosed with bronchiectasis within the first post service year, or in fact any time after discharge, he is not entitled to service connection on either a direct or presumptive basis. See 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board has specifically considered the fact sheets and documentary evidence relating to bronchiectasis and its symptoms, enhanced by the veteran's written comments pertaining to his particular circumstance. However, the submission of evidence explaining the general symptomatology and possible etiologies of this condition cannot substitute or constitute a clinical diagnosis of that condition, which is not found in this case. Medical treatise evidence can provide important support when combined with the pertinent opinion of a medical professional. Similarly, medical treatise evidence could "discuss [] generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon objective facts." Mattern v. West, 12 Vet. App. 222, 229 (1999); Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). Here, the cited information proffered by the veteran is not accompanied by any credible, clinical or probative evidence establishing this diagnosis in the veteran's specific case. Accordingly, the Board finds that this evidence cannot be used to establish the presence of the currently claimed disorder. As a related matter, the Board notes that the veteran does have a degree of a health professional, having been a licensed chiropractor. However, he is not competent to offer an opinion as to matters requiring medical expertise regarding pulmonary conditions, such as a diagnosing a disease or disorder in that area of medicine. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); Savage v. Gober, 10 Vet. App. 488 (1997). Post-service medical records established that pulmonary function testing conducted between 2000 and 2007 has generally been consistently normal. However, medical records dated in 2000 and 2003-2004, more than 30 years after the veteran's discharge from service, document that the veteran was treated for bronchitis and viral infection. However, neither condition has been in any way linked to the veteran's period of service, to include by virtue being a residual of pneumonia treated in service. In this case, no probative and/or competent evidence has been presented which establishes or even suggests that the veteran's post-service claimed pneumonia residuals/pulmonary symptomatology are etiologically related to service. A requirement for a showing of such a relationship has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit, which has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between the veteran's service (or a service connected disability) and the disability claimed. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Moreover, the record here discloses a span of more than 30 years since the veteran's discharge from service without any clinical evidence to support an assertion of a continuity of pulmonary symptomatology/pneumonia residuals. The fact that the contemporaneous records do not provide subjective or objective evidence that supports any recent contention that the veteran experienced continuous pulmonary symptomatology since in-service pneumonia, is highly probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Moreover, in view of the lengthy period without evidence of treatment for any residuals of pneumonia or for a pulmonary condition, extending from approximately 1970 until at least 2000, there is no evidence of a continuity of treatment, and this also weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Although the evidence shows the presence of a fairly recently diagnosed pulmonary disorders (i.e., bronchitis), such evidence, alone, is insufficient to establish service connection. There must be competent evidence establishing an etiological relationship between an injury or disease in service and the current disability. The veteran, who is not an expert in the field of pulmonary disorders, is not qualified to render a medical opinion as to etiology or diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, mere contentions and statements of the veteran, no matter how well meaning, without supporting medical evidence that would etiologically relate the currently claimed condition with conditions or events which occurred in or are related to service, is not competent medical evidence. 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"). After considering all the evidence under the laws and regulations set forth above, the Board concludes that there is no evidence of record establishing a current clinical diagnosis of bronchiectasis and no competent medical evidence that any currently claimed residuals of pneumonia/or currently manifested pulmonary symptomatology or disorders, are related to service. In deciding whether the claimed benefits are warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b). In this case, the Board finds that the preponderance of the evidence weighs against the veteran's claim and therefore, the provisions of § 5107(b) are not applicable. Accordingly, entitlement to service connection for residuals of pneumonia, is denied. ORDER Service connection for a sinus disorder, to include sinusitis and rhinitis, is denied. Service connection for a throat disorder is denied. Service connection for residuals of pneumonia, to include bronchiectasis, is denied. REMAND In November 2006, the RO issued a rating decision denying service connection for renal cell carcinoma. In December 2006, VA received a statement, handwritten by the veteran, expressing disagreement with that decision, and maintaining that kidney cancer might be attributable to in-service exposure to a carcinogenic cleaning substance. In correspondence from VA to the veteran dated in December 2006, the RO acknowledged receipt of that statement, but indicated that the written disagreement was "inadequate" and requested that the veteran clarify whether he was filing a Notice of Disagreement (NOD) with the decision issued in November 2006. The veteran did not respond to that correspondence. However, the Board believes that the veteran's handwritten statement dated in November 2006, sufficiently meets the definition of a NOD. A written communication from a claimant or his/her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (here, the RO) and a desire to contest the result will constitute a NOD. 38 C.F.R. § 20.201 (2007). While special wording is not required, the NOD must be in writing and in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. Id. A veteran must file a NOD with a determination by the agency of original jurisdiction within one year from the date that the RO mailed notice of the determination. 38 C.F.R. § 20.302(a). There is no requirement in the regulation that the date of rating action at issue be specified in a NOD. Here, the written statement provided by the veteran and received by VA in December 2006 was both timely and clearly expressed dissatisfaction with the denial of the claim for renal cell carcinoma; hence the statement is tantamount to a timely NOD. 38 C.F.R. § 20.201. The filing of a notice of disagreement places a claim in appellate status. The failure to issue a statement of the case in such a circumstance renders a claim procedurally defective and necessitates a remand. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2007). To date, however, the RO has not issued him an SOC with respect to this claim. Under these circumstances, the Board has no discretion and is obliged to remand this issue to the RO for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). However, this claim will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is remanded for the following action: The RO must provide the veteran with a statement of the case addressing the issue of entitlement to service connection for renal cell carcinoma. The veteran and his representative are reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2007). If, and only if, the veteran perfects the appeal as to this issue, the case must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs