Citation Nr: 1007828	
Decision Date: 03/02/10    Archive Date: 03/11/10

DOCKET NO.  08-06 927	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for a chronic respiratory 
disorder, claimed as asthma.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Lynne M. Yasui, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1951 to February 
1954.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a November 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
San Juan, the Commonwealth of Puerto Rico.

In September 2009, the Board remanded this matter for further 
development.  It is now ready for appellate consideration.  

Please note this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2009).  38 U.S.C.A. 
§ 7107(a)(2) (West 2002).


FINDING OF FACT

A chronic respiratory disorder was not shown in service or 
for several years thereafter.  A current diagnosis of asthma 
is not etiologically related to active service.


CONCLUSION OF LAW

A chronic respiratory disorder, claimed as asthma, was not 
incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 
5103(a), 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 
3.303 (2009).




REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting 
from a disease or injury incurred in or aggravated by 
service.  See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 
3.303(a) (2009).  In general, service connection 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 current disability.  See Hickson v. West, 12 
Vet. App. 247, 253 (1999).  

Service connection may also be established with a showing of 
continuity of symptomatology in service and after discharge.  
This is only required where the condition noted during 
service (or in the presumptive period) is not, in fact, shown 
to be chronic or where the diagnosis of chronicity may be 
legitimately questioned.  38 C.F.R. § 3.303(b).

In Savage v. Gober, the United States Court of Appeals for 
Veterans Claims (Court) clarified this provision.  The Court 
explained that if the chronicity provision of 38 C.F.R. § 
3.303(b) is not applicable, service connection may still be 
available if (1) the condition is observed during service or 
any applicable presumption period; (2) continuity of 
symptomatology is demonstrated thereafter; and (3) competent 
evidence relates the present condition to that 
symptomatology.  Savage v. Gober, 10 Vet. App. 488, 498 
(1997).

The Board must determine whether the evidence supports the 
claim or is in relative equipoise, with the appellant 
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).

The Veteran contends, in essence, that he developed bronchial 
asthma at the same time that he was treated for frostbite in 
service.

Service treatment records indicated that in December 1951, 
while undergoing hospitalization for frostbite, the Veteran 
reported frontal and maxillary tenderness.  A physical 
examination showed "some infection of the pharynx;" 
however, the evidence does not show asthma or any symptoms 
reasonably related thereto and his lungs were clear.  
Further, hospital records from that time period show 
diagnoses of frostbite and a contusion of the left great toe 
but no mention was made of a respiratory disorder of any 
kind.

In February 1952, he was diagnosed with and treated for acute 
pharyngitis.  There were no other indications of treatment 
for a respiratory disorder, including asthma, at that time.  
In a November 1952 physical assessment, his lungs were clear.  
At the time of discharge, the clinical evaluation of his 
lungs and chest was normal.  Therefore, the evidence does not 
show a chronic respiratory disorder during service.

	Next, post-service medical evidence does not reflect 
respiratory symptomatology for several years after service 
discharge.  Specifically,  a note from Dr. A.S. in April 1972 
indicated that the Veteran had been treated for asthmatiform 
dyspnea on two occasions in 1958.  Thus, the first reported 
symptoms associated with asthma were noted four years after 
separation from service.  Therefore, the medical evidence 
does not reflect continuity of symptomatology.
	
	In addition to the absence of documented post-service 
symptomatology related to asthma for several years after 
discharge, the evidence includes the Veteran's lay statements 
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).  
	
	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 
latter 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 Cartright v. 
Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may 
affect the credibility of testimony, it does not affect 
competency to testify").
	
	In this case, the Veteran is competent to report symptoms 
because this requires only personal knowledge as it comes to 
him through his senses.  Layno, 6 Vet. App. at 470.   He has 
indicated that he continued to experience respiratory 
symptoms after he was discharged from the service.  
	
	In determining whether statements submitted by a veteran are 
credible, the Board may consider internal consistency, facial 
plausibility, and consistency with other evidence submitted 
on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 
(1995).  
	
	In this case, the Board finds that the Veteran's reported 
history of continued symptomatology since active service, 
while competent, is nonetheless not credible.  First, while 
not dispositive, the Board emphasizes the multi-year gap 
between discharge from active duty service (1954) and initial 
reported symptoms related to a respiratory disorder in 1953 
(a 4-year gap).  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); see also Mense v. Derwinski, 1 Vet. App. 
354, 356 (1991) (affirming Board's denial of service 
connection where veteran failed to account for lengthy time 
period between service and initial symptoms of disability).
	
	Next, the Board finds that the Veteran's reported history of 
continued symptoms 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 in-service evidence 
shows treatment for pharyngitis, not asthma, during his 
hospitalization for frostbite. 
	
	The Board has weighed the Veteran's lay statements as to 
continuity of symptomatology and finds his current 
recollections and statements made in connection with a claim 
for benefits to be of lesser probative value.  See Pond v. 
West, 12 Vet. App. 341 (1999) (although Board must take into 
consideration the veteran's statements, it may consider 
whether self-interest may be a factor in making such 
statements).  Therefore, continuity has not here been 
established, either through the medical evidence or through 
his lay statements.
	
	Next, service connection may be granted when the evidence 
establishes a medical nexus between active duty service and 
current complaints.  In this case, the Board finds that the 
weight of the competent evidence does not attribute the 
Veteran's asthma to active duty, despite his contentions to 
the contrary.    
	
	To that end, the Board places significant probative value on 
a September 2009 VA examination undertaken specifically to 
address the issue on appeal.  At that time, the Veteran 
reported the onset of asthma at the time he was hospitalized 
in service for frostbite.  
	
The examiner noted that the Veteran had no history of 
recurrent upper respiratory tract infections in service or at 
the time of separation from active service in February 1954.  
She also indicated that he was first treated for asthma in 
1958 and had a history of cigarette smoking.

Upon objective examination, the examiner diagnosed asthma.  
The examiner stated that after review of all evidence 
available in the claims file, including the first report of 
treatment in 1958 (she misstated that this was 6 years after 
service when, in fact, it was 4 years after), the Veteran's 
history as a cigarette smoker, a diagnosis of chronic 
obstructive pulmonary disease (COPD), and evidence of 
emphysematous changes in a chest X-ray, she opined that "it 
is not as likely as not, that veteran's respiratory 
conditions, were causally related to his military service."

This medical opinion weighs against the Veteran's claim for 
service connection for a respiratory disorder, to include 
asthma, as it fails to establish the requisite nexus between 
the currently-diagnosed asthma and active service.

	The Board finds that the examination was adequate for 
evaluation purposes.  Specifically, the examiner reviewed the 
claims file, interviewed the Veteran, and conducted a 
physical examination.  There is no indication that the VA 
examiner was not fully aware of the Veteran's past medical 
history or that she misstated any relevant fact.  Moreover, 
there is no contradicting medical evidence of record.  
Therefore, the Board finds the VA examiner's opinion to be of 
great probative value.
	
The Board has also considered the Veteran's statements 
asserting a nexus between his currently-diagnosed disorder 
and active duty service.  While the Board reiterates that he 
is competent to report symptoms as they come to him through 
his senses, a respiratory disorder such as asthma is not the 
type of disorder that a lay person can provide competent 
evidence on questions of etiology or diagnosis.  In fact, the 
in-service evidence shows that his in-service respiratory 
complaints were related to pharyngitis, not asthma.
	
In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the 
U.S. Court of Appeals for the Federal Circuit (Federal 
Circuit) stated that lay evidence is competent and sufficient 
in certain instances related to medical matters.  
Specifically, the Federal Circuit commented that such 
instances include to establish a diagnosis of a condition 
when (1) a layperson is competent to identify the medical 
condition, (2) the layperson is reporting a contemporaneous 
medical diagnosis, or (3) lay testimony describing symptoms 
at the time supports a later diagnosis by a medical 
professional.  Id.  

Similarly, the U.S. Court of Appeals for Veterans Claims has 
held that when a condition may be diagnosed by its unique and 
readily identifiable features, the presence of the disorder 
is not a determination "medical in nature" and is capable 
of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 
(2007).

In this case, the Veteran's contention regarding a 
relationship between his claimed disability and his active 
service is not a statement about symptomatology, an 
observable medical condition, or a contemporaneous medical 
diagnosis.  Rather, this contention is a statement of 
causation.  Such a statement clearly falls within the realm 
of opinions requiring medical expertise.  

The Board has reviewed the Veteran's extensive VA outpatient 
treatment reports and finds that they provide no favorable 
evidence to the Veteran's claim for service connection.  
While these treatment reports indeed reflect treatment of 
respiratory disorders since April 2001, they merely restate 
what was already of record - that he has a currently-
diagnosed and treated respiratory disorder, asthma.  The 
treatment reports do not provide any indication that his 
asthma or respiratory symptoms manifested in service or that 
his current asthma is related to his active service.

Based on the above, the preponderance of the evidence of 
record is against a grant of service connection for a 
respiratory disorder, to include asthma, and his claim is 
denied.  The evidence in this case is not so evenly balanced 
so as to allow application of the benefit-of-the-doubt rule.  
Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 
5107(b); 38 C.F.R. § 3.102 (2009).

Finally, the Board is required to ensure that VA's "duty to 
notify" and "duty to assist" obligations have been 
satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 
38 C.F.R. § 3.159 (2008).  The notification obligation in 
this case was accomplished by way of letters from the RO to 
the Veteran dated in August 2005 and August 2006.  See 
Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. 
Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 
Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 
(Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 
(2006).

Moreover, service treatment records have been associated with 
the claims file.  Although a February 2008 request for 
records resulted in a response that service treatment records 
were destroyed in the fire at the National Personal Records 
Center in 1973, the Board notes that, in fact, a complete set 
of service treatment records are associated with the claims 
file, including induction and separation examinations, and 
multiple reports generated at the time the Veteran was 
hospitalized for frostbite in 1951.  In addition, VA clinical 
records and private medical records have been obtained and 
associated with the Veteran's claims file.

The RO also provided assistance to the Veteran as required 
under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as 
indicated under the facts and circumstances in this case.  He 
has not made the RO or the Board aware of any additional 
evidence that needs to be obtained in order to fairly decide 
this appeal, and has not argued that any error or deficiency 
in the accomplishment of the duty to assist has prejudiced 
him in the adjudication of his appeal.  Mayfield v. 
Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 
444 F. 3d 1328 (Fed. Cir. 2006).  Hence, no further notice or 
assistance to the Veteran is required to fulfill VA's duty to 
assist in the development of the claim.


ORDER

Service connection for a respiratory disorder, claimed as 
asthma, is denied.



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs