Citation Nr: 0814045 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 06-14 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as asthma, due to herbicide exposure. ATTORNEY FOR THE BOARD K. Gielow, Associate Counsel INTRODUCTION The veteran served on active duty from November 1967 to November 1969, including a period of eight months in Vietnam. This matter comes before the Board of Veterans Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. FINDINGS OF FACT 1. The veteran had service in the Republic of Vietnam during the Vietnam War, and exposure to Agent Orange is presumed. 2. The veteran's respiratory disorder, currently diagnosed as asthma, is not recognized by VA as causally related to exposure to herbicide agents used in Vietnam. 3. Asthma was not noted at the time of induction and the veteran is entitled to the presumption of soundness. 4. Service medical records do not show complaints of, treatment for, or a diagnosis related to asthma; the respiratory examination was normal at the time of service separation. 5. The evidence is negative for asthma symptoms for many years after discharge from active duty. 6. There is no medical nexus between active duty and the veteran's current respiratory disorder, diagnosed as asthma. CONCLUSION OF LAW A respiratory disorder, currently diagnosed as asthma, was not incurred or aggravated in service, and may not be presumed to have been incurred or aggravated in service, including due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2007). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2007). In addition to the law and regulations governing entitlement to service connection outlined above, for purposes of service connection for a disability or death resulting from exposure to a herbicide agent, including a presumption of service connection, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2,4- dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116 (as amended). If a veteran was exposed to herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), and soft-tissue sarcomas. 38 C.F.R. § 3.309(e) (2007). If the rebuttable presumptions of 38 C.F.R. § 3.307(d) are also not satisfied, then service connection under this theory of entitlement must fail. The Secretary of VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 (1994). Notwithstanding the above, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). After a review of the claims file, the Board finds that the veteran's claim fails under either analysis. Claim Based on Herbicide (Agent Orange) Exposure The veteran claims that his asthma is due to exposure to Agent Orange during his military service in Vietnam. Because he had qualifying service in Vietnam, exposure to Agent Orange is presumed. However, asthma is not on the list of presumptive diseases associated with Agent Orange exposure. As such, his claim for presumptive service connection on the basis of Agent Orange exposure must necessarily be denied. Claim Based on Aggravation In the alternative, the veteran contends that his asthma was aggravated by military service, particularly his exposure to Agent Orange. As noted above, asthma is not on the list of presumptive disorders associated with herbicide exposure. However, the Board will address the issue of aggravation separately. Essentially, to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); see also Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003) (detailing legislative history relating to presumption of soundness and the possibility that the omission of the relevant language from 38 C.F.R. § 3.304(b) was unintentional and that 38 C.F.R. § 3.304(b) should be construed as consistent with the VA's pre-February 1961 regulations). Specifically, VAOPGCPREC 3-2003 held that the claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. It was determined that the provisions of 38 C.F.R. § 3.304(b) are inconsistent with 38 U.S.C.A. § 1111 insofar as § 3.304(b) states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service. It was concluded that 38 C.F.R. § 3.304(b) is invalid and should not be followed. Regarding the provisions of 38 C.F.R. § 3.306(b), providing that aggravation may not be conceded unless the pre-existing condition increased in severity during service, it was determined that this properly implements 38 U.S.C.A. § 1153, which provides that a pre-existing injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service. The requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C.A. § 1153, and does not apply to determinations concerning the presumption of sound condition under 38 U.S.C.A. § 1111. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progression of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2007). Moreover, "temporary or intermittent flare-ups of a pre- existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened." Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Nonetheless, silence of the record on this point may not be taken as indication of no aggravation, an opinion must be provided. See Verdon v. Brown, 8 Vet. App. 529 (1996); Wisch v. Brown, 8 Vet. App. 139 (1995). Further, such medical questions must be addressed by medical experts. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an initial matter, the Board finds that no pre-service medical records are associated with the claims file. Moreover, at the time of induction to service, the veteran checked "no" to the question of whether he had ever had "asthma" on a Report of Medical History. Further, the pre- induction respiratory examination was normal. However, at the time of discharge, the veteran checked "yes" to the question of whether he had ever had "asthma" on a Report of Medical History. The military physician noted that the veteran had "asthma & shortness of breath at age 14." This is the only indication that he experienced pre- service asthma. There is no evidence demonstrating an actual diagnosis or treatment for asthma prior to service. Therefore, the Board finds that he is entitled to the presumption of soundness at the time of entrance into service. Because the veteran was considered sound at the time of induction, the Board need not reach the issue aggravation. Rather, the question is whether the evidence supports a claim of direct service-connection, which is discussed below. However, the Board will offer a word about the internet evidence the veteran submitted regarding VA benefits. In the internet scenario, a young man suffered from asthma as a child, passed his induction physical because he had not had an asthma attack since age 5, but while on active duty his asthma flared. After his discharge, his asthma became a chronic problem and he was found to be entitled to VA benefits. The veteran asserts, in essence, that this example is analogous to his situation. The Board disagrees. Even assuming that the veteran's asthma pre-existed service, as he maintains, the disease will be considered to have been aggravated by service only when there is an increase in the disability during service, unless there is a specific finding that the increase is due to the natural progression of the disease. In the scenario, the young man's asthma flared while he was on active duty. In contrast, the veteran's service medical records do not show complaints of, treatment for, or a diagnosis of a respiratory disorder of any kind. Moreover, at the time of service separation, his respiratory system was noted to be normal. This evidence weighs against the veteran's claim that his asthma was aggravated by active duty. Significantly, the issue is not whether there was an increase in his disorder since service or whether it is worse now, the threshold issue is whether there was an increase during military service. The Board has considered the veteran's own assertions that his asthma worsened during military service. In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). In this case, given the absence of any respiratory complaints during service, it is reasonable to conclude that, even if the veteran had a pre-existing diagnosis of asthma, there was no aggravation during service. As such, the claim based on aggravation is denied. Claim Based on Direct Service Connection The Board has also considered the veteran's claim on a direct service-connection basis but finds that the competent evidence does not support his claim. As noted above, the service medical records are negative for complaints of, treatment for, or a diagnosis related to a respiratory disorder of any kind. In March 1969, it appears that he had a chest X-ray for purposes of obtaining a food handlers card, which was normal. At the time of service separation, the veteran self-reported "yes" to asthma; however, the respiratory examination was normal, including a normal chest X-ray at the time of discharge. This suggests that there was no evidence of a chronic respiratory disorder during his period of active duty. Next, the Board notes that it was many years before the veteran reported symptoms associated with asthma. At the time he filed his claim for benefits, he identified the onset of the disability as December 1985. The first medical evidence reflecting asthmatic symptomatology is dated in July 2004, when he was treated for an acute exacerbation. Follow- up care reflects a history of asthma, and it was also reported that he had been enrolled in the Asthma Care Management from May 2001 to April 2003 (with questionable compliance). Even accepting the onset of asthma symptoms as early as 1985, as identified by the veteran, the Board places significant probative value on the 15-year+ gap since active duty and finds that the post-service symptomatology is too remote in time to support a finding of direct in-service onset, particularly given the lack of continuity of symptomatology during the multi-year gap between military discharge in 1969 and onset in 1985. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). In addition to the documented post service treatment records, the evidence includes statements from the veteran asserting continuity of symptoms. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board, however, finds that the veteran's reported history of continued asthma since active service is inconsistent with the other evidence of record. Indeed, while he stated that his disorder began in service, the separation examination was absent of any complaints. Moreover, the post-service evidence does not reflect treatment related to asthma for many years following active service. Therefore, the Board finds that the contentions of asthma since service of less probative value on the issue of continuity. Further, while the veteran has provided private medical records, there is no competent evidence establishing a medical nexus between his asthma and military service. For those reasons, the claim on a direct basis is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay 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). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (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. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in March 2005 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in June 2007, the RO provided the veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Specifically, the RO has obtained VA outpatient treatment records. Further, the veteran submitted private treatment records. With respect to the need for an examination, given the absence of in-service evidence of chronic manifestations of a respiratory disorder, no evidence of asthma for many years after separation, and no competent evidence of a nexus between service and the veteran's claim, a remand for a VA examination would unduly delay resolution. Further, the veteran's statements as to continuity of symptomatology is found to lack credibility and the Board finds that the medical evidence of record is sufficient to make a decision on the claim. Therefore, remand for a VA examination is not warranted. Significantly, the veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a respiratory disorder, claimed as asthma, due to herbicide exposure, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs