Citation Nr: 1031292 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 07-40 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a lung disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1953 to April 1955. This appeal arises from an August 2006 rating decision of a special claims processing unit ("Tiger Team") at the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, reopened the Veteran's claim for service connection for a lung disability and confirmed and continued the prior denial. The RO in Huntington, West Virginia, has jurisdiction over the Veteran's claims file. In March 2009, the Veteran had a hearing at the RO before the undersigned Veterans Law Judge. The Board of Veterans' Appeals (Board), in an April 2009 decision and remand, reopened the claim for service connection for a lung disability and remanded the claim for further development and adjudicative action. The case has been returned to the Board for further appellate review. There has been substantial compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 The probative and persuasive evidence of record does not relate the Veteran's lung disability to service or to any incident therein. CONCLUSION OF LAW A lung disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO provided a VCAA notice letter to the Veteran in March 2006, before the original adjudication of the claim. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In addition to the foregoing analysis, to whatever extent the recent decision of the U. S. Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the Veteran in proceeding with the present decision. Since the issue of entitlement to service connection for a lung disability is being denied, any such questions are moot. The Veteran has had ample opportunities to meaningfully participate in the adjudicative claims process. Any error or deficiency in this regard is harmless, and not prejudicial. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim for service connection, and the duty to assist requirements have been satisfied. Service treatment records were obtained and associated with the claims folder. Private and VA treatment reports dated from September 2003 to July 2009 were also obtained and associated with the claims folder. The Veteran underwent a VA examination in July 2009 to obtain medical evidence as to the nature and etiology of his lung disability. The examiner reviewed the claims file, the Veteran's subjective history, clinical findings of record, and rendered an opinion. The Board finds that the opinion is probative and consistent with the Veteran's service treatment records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the Board considers the opinion adequate. Moreover, there is no contrary medical opinion or medical evidence in the record, and neither the Veteran nor his representative has identified or alluded to such medical evidence or opinion. There is no identified relevant evidence that has not been accounted for. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Legal Criteria Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247 (1999); see also Pond v. West, 12 Vet. App. 341 (1999). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a) (West 2002). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court is stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran asserts that he has a lung disability as a result of service. He contends that he was treated for a lung disability in service. Service treatment records reflect that, in January 1954, the Veteran was admitted to the hospital. According to a January 6, 1954 physical examination record, the impression included acute tonsillitis, pulmonary emphysema secondary, seasonal hay fever, and questionable asthma. A January 7, 1954 chest x-ray showed normal lung tissue. Final diagnoses, as noted in January 8, 1954, included acute tonsillitis and seasonal rhinitis. According to a June 3, 1954 physical examination, the lungs were normal to percussion and auscultation except for a few wheezes in both anterior, inferior lung fields. A chest x-ray dated June 9, 1954 notes that there might be an area of infiltration in the left perihilar region and in the left midlung field. Remainder of the lung tissue was noted to be normal. A June 12, 1954 chest x-ray reflects normal lung tissue. It was further noted that the previously seen area of infiltration in the superior part of the left perihilar region was not seen anymore. A subsequent June 15, 1954 chest x-ray showed underdevelopment of the 1st rib, otherwise normal lung tissue. In November 1954, the Veteran reported experiencing pain in his chest and cough. At that time, he was diagnosed with bronchitis. Additionally, his April 1955 service separation examination showed normal clinical evaluation of lungs and chest, and there was no evidence of any lung disability. Subsequent to service, a December 1974 private chest x-ray report noted that the appearance of the lungs was within normal limits. According to the May 1977 VA examination report, the examiner noted that all of the Veteran's chest x-rays have been normal and that he experiences occasional coughing. He further reported that the Veteran had a lung condition by history. Upon examination, the Veteran's lungs were clear to auscultation and percussion. In November 1998, the Veteran's chest x-ray was noted to be consistent with asbestosis by Dr. Herron. In March 2009, the Veteran testified that during service he was treated in the infirmary for what he thought was pneumonia. He indicated that he was not told at that time he was being treated for tonsillitis. He indicated that while in the infirmary, a nurse put a thermometer in his mouth which he accidentally bit in two and spit out. He indicated that there was concern that he had ingested mercury and x-rays were taken that showed a spot on the lungs. He testified that he was asked if he smoked or had something in a shirt pocket when the x-ray was taken. He indicated that subsequent x-rays did not show a spot. He stated that since service, the spot only appears when it was not looked for, any time he was sent for an x-ray to look for the spot it would not appear. He indicated that he currently has shortness of breath. He stated that he believed the compensation benefits should be granted based on the fact that the spot on the lung appeared during service. The Veteran underwent another VA examination in July 2009. The VA examiner noted the Veteran's pertinent service history, and history of symptoms including cough, dyspnea, wheezing, swelling, fatigue, and weakness. Pulmonary exam was reported as normal. The examiner also noted that the Veteran experienced dyspnea on moderate exertion. Diaphragm excursion and chest expansion were noted to be slightly limited. Chest x-ray at that time revealed lungs clear and free of infiltrate. Pulmonary function test interpretation was mild restrictive pattern with normal diffusion capacity of carbon monoxide. The diagnosis given was emphysematous changes in both lungs with minimal interstitial lung disease. The examiner opined that the Veteran's current pulmonary disease, is related to and caused by his occupation after discharge from the service as a brakeman for the CSX railroad for 42 years. He further noted that the Veteran was given a pulmonary disability award against the CSX railroad for occupational lung disease. The rationale provided by the examiner noted that the Veteran's June 9, 1954 x-ray findings were acute and transitory and had returned to normal on x-rays of June 12, 1954 and June 15, 1954. The Board finds that the VA opinion is highly probative because the opinion was based upon physical examination of the Veteran and a review of the claims file. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The VA examiner provided the reasons and bases for the medical opinion and his opinion is consistent with the service treatment records and the Veteran's prolonged period without complaint or treatment. The opinion considered the Veteran's in-service and post service x-ray reports and provided a rationale for the opinion rendered. The medical opinion is also consistent with other objective evidence of record. The Board finds that this opinion is probative, as it was based on a review of the Veteran's claims file, subjective complaints and examination findings. Absent credible medical evidence linking the Veteran's currently diagnosed lung disability to active service, continuity of symptoms or any other causal relationship to service has not been established. In this case, while the Veteran believes that his current lung disability is related to events in service, he has not presented any corroborating evidence to support that assertion. There is no medical nexus evidence which establishes that the Veteran's emphysematous changes in both lungs with minimal interstitial lung disease is medically related to the Veteran's period of service or any in-service event. The Veteran's statements and testimony are acknowledged. However, the Board rejects the Veteran's assertions to the extent that he seeks to etiologically relate his lung disability to service. Lay assertions of medical status do not constitute competent medical evidence for these purposes. Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran thus is competent to describe the symptoms which he experienced during active service. He has not shown, however, that he has the expertise required to diagnose any of his claimed disabilities. Nor is the Veteran competent to offer an opinion regarding any causal relationship between his disability and active service. While the Veteran's contentions have been considered carefully, these contentions are outweighed by the medical evidence of record. The Veteran has not clearly asserted continuity of symptoms since service either in his written statements or during his testimony. During the hearing in March 2009, he indicated that he currently suffered shortness of breath and asserted that since a spot on the lung was shown in service, he should be compensated. To the extent he may be asserting any symptoms shown in service have been continuous, the Board does not find such assertion credible. While the service treatment records do show treatment in service, at the time of separation in 1955, there was no evidence of a lung disability. Private treatment records dated from September 1967 to August 1975 do not show any complaints related to breathing or lungs and a December 1974 chest x-ray was normal. On VA examination in May 1977 there were no complaints related to the lungs shows and it was only noted that the Veteran had a history of a lung condition. The first evidence of a lung condition is shown after service was noted in November 1998 by Dr. Herron, who indicated a chest x-ray was consistent with asbestosis. As such, there is no credible evidence of inservice chronicity or continuity of symptomatology. Because the probative and persuasive evidence does not relate the Veteran's lung disability to his military service, the preponderance of the evidence is against his claim for service connection. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a lung disability is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs