Citation Nr: 1031565 Decision Date: 08/23/10 Archive Date: 09/01/10 DOCKET NO. 08-25 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as chronic bronchitis. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Jill Anderson, Law Clerk INTRODUCTION The Veteran served on active duty from March to November 1976. This matter is on appeal from the Des Moines, Iowa, Department of Veterans Affairs (VA) Regional Office (RO). The issue of service connection for asbestosis has been raised by the record (September 2007 NOD), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Chronic bronchitis was not manifest during service; a chronic respiratory disorder was not shown for many years after discharge. 2. Current chronic bronchitis is unrelated to service. CONCLUSION OF LAW A respiratory disorder, claimed as chronic bronchitis, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103(a), 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks service connection for chronic bronchitis. He contends that he developed bronchitis during service after training in a gas chamber containing tear gas. 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. § 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) (2009). However, continuity of symptomatology 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) (2009). 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) (2009). 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, 57 (1990). For purposes of this decision, the Board accepts that the Veteran received tear gas training. Service treatment records reflect that he was treated in April 1976 for a cold with rash and diarrhea. Symptoms included productive cough, shortness of breath, wheezing, runny nose, and itching/tearing eyes. He was diagnosed with an acute respiratory disease but there is no indication that his symptoms were related to tear gar training. Shortly thereafter, the Veteran was diagnosed with pleurisy; however, the chest X-ray was clear. In June 1976, he complained of a sore throat and shortness of breath. He was specifically not diagnosed with bronchitis and was instead diagnosed with a viral syndrome. He was treated with aspirin and throat lozenges; however, there was no indication that his symptoms were related to tear gas training. There is no further mention of respiratory symptoms in the service treatment records. At the time of service separation five months later (November 1976), his lungs and chest were normal. A November 1976 chest X-ray was normal. Therefore, service records do not show chronic bronchitis or any other identified respiratory disorder at the time of discharge. Next, post-service evidence does not reflect respiratory symptomatology for many years after service discharge. While VA clinic records associated with the claims file reflect treatment for respiratory complaints in August 2006, a VA examiner reviewed the clinical records and noted VA treatment as early as 2005. Moreover, the Veteran reported to the examiner that he had received treatment in the early 1990s and was diagnosed with chronic bronchitis in 1997. In his initial claim, he reported treatment since 2001. Even accepting respiratory symptomatology as early as the 1990s, the onset was nearly 20 years after discharge. Therefore, the medical evidence does not reflect continuity of symptomatology. In addition to the absence of documented post-service symptomatology related to a respiratory disorder for many years, the evidence includes the Veteran's statements asserting continuity of symptoms. He contends that his cough was caused by gas chamber exposure during basic training. 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"). The Board acknowledges that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 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 symptoms related to a cough 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, the Board emphasizes the multi-year gap between discharge from active duty service (1976) and initial reported symptoms related to a respiratory disorder in the 1990s (nearly a 20-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 respiratory problems 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 a respiratory disorder for many years following active service. Further, the evidence reflects onset of symptoms to different times. Specifically, in his initial claim, the Veteran noted that his disability began in 1976 but that he did not seek treatment until 2001. He told a VA examination that he sought treatment in the early 1990s, but was not diagnosed with chronic bronchitis until 1997. The VA examiner reviewed VA clinical records and noted that the Veteran had first been treated in 2005. These inconsistencies in the record weight against the Veteran's credibility as to continuity of symptomatology since service. Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). In addition, despite multiple clinical records reflecting treatment for bronchitis, the Veteran did not report that his respiratory disorder was related to tear gas exposure in service. At one point, he questioned why he continued to cough after he stopped smoking and insinuated that it was not until after that time did he make an association between his cough and service. The Board has weighed the Veteran's 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 chronic bronchitis to active duty, despite his contentions to the contrary. To that end, the Board places significant probative value on an October 2007 VA examination undertaken specifically to address the issue on appeal. At that time, the Veteran reported he had been having problems with coughing and phlegm for about 20 years. He stated that he believed that the chronic cough was caused by his military training in a gas chamber. Further, he stated that he had received private medical treatment for his complaints. Finally, he indicated that he quit smoking in 1999 after smoking one pack per day for 20 years. After a physical examination, the examiner diagnosed chronic bronchitis. The examiner opined that there was no evidence that the Veteran's chronic bronchitis dates back to his service. The examiner reflected that chronic bronchitis was usually caused by smoking that might not improve even after the patient quit smoking, that the Veteran's in-service respiratory complaints were acute, that he appeared to have fully recovered from his in- service respiratory disorders, and that there was a gap in time between service discharge and respiratory complaints. 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 he 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. In support of his claim, the Veteran submitted VA medical examination reports from August 2006 to July 2008. These medical records discuss his diagnosis and treatment of chronic bronchitis; however, do not discuss the etiology. Therefore, they are not probative of the issue, since they do not tend to show that bronchitis incurred in or was aggravated by service. 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, respiratory diseases such as bronchitis are not the type of disorders that a lay person can provide competent evidence on questions of etiology or diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Such competent evidence has been provided by medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater weight to the clinical findings than to his statements. See Cartright, 2 Vet. App. at 25. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009) 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; and 3) that the claimant is expected to provide. 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). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In the event that a VA notice error occurs regarding the information or evidence necessary to substantiate the claim, VA bears the burden to show that the error was harmless. 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. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2007 that fully addressed all 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. 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 April 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.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: 1) competent evidence of a current disability or persistent recurrent symptoms of a disability; 2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; 3) an indication that the disability or symptoms may be associated with service; and 4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with 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). After a careful review of the file, 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). First, the RO has obtained service treatment and personnel records and VA outpatient treatment records. Next, a specific VA medical opinion pertinent to the issue on appeal was obtained in October 2007. The Board notes that the Veteran stated in his claim application that he had been treated by a private physician from 2001 to 2006 and that there are no private medical records in the file. However, the Board finds that the VA has satisfied its duties to notify and to assist with regards to private medical records. First, in an April 2007 letter, the RO informed the Veteran of VA's duty to assist him in the development of his claim, that the VA would make reasonable efforts to obtain private or non-Federal medical records, and that it was ultimately his responsibility to make sure that the VA receives all requested private records. Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the Veteran could complete to release private medical records to the VA. The Veteran did not respond to the April 2007 letter. The RO noted the lack of response in the August 2007 rating decision. The RO further specifically notified him of the lack of any response regarding private medical records in the August 2008 statement of the case. To date, there is still nothing in the file regarding private medical records, excepting the original claim application. The VA has fulfilled its duties to notify and to assist with regards to private medical records. It specified the Veteran's responsibilities regarding private medical records, sent him forms to release private medical records, and reminded him that no correspondence had been received. Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the Veteran nor his representative has 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 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 chronic bronchitis, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs