Citation Nr: 1124983 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 08-06 828A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Russell P. Veldenz, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran, who is the appellant, served on active duty from June 1954 to May 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision, dated May 2007, of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2010, the Veteran testified at a Board hearing before the undersigned. In June 2010, the Board remanded the case to the RO to afford the Veteran a VA examination and to obtain medical opinions as to what manifestations were caused by the Veteran's service connected disability and their level of severity. The Board also requested the RO attempt to obtain medical records from a private hospital in Teaneck, NJ and from the U. S. Army Hospital in Berlin, Germany from December 1955 to May 1956. The RO made the requests but was unsuccessful, having received a letter from the private hospital in June 2010 that the records had been purged ten years after treatment and a statement in July 2010 from the National Personnel Records Center that no records from the Berlin U. S. Army were located. The RO then notified the Veteran of the results in the supplemental statement of the case issued in March 2011. VA has afforded the Veteran a VA examination in July 2010 and the examiner has issued a report. In the report, the examiner sufficiently identified the extent of the service-connected disability, its etiology, and its symptoms. After review of the report, the Board finds the VA examination report in compliance with 38 C.F.R. § 3.159(c) (4), that is, sufficient competent medical evidence to make a fully informed decision on the claim. As the requested development has been completed, no further action is necessary to comply with the Board's two remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT A respiratory disorder was not affirmatively shown to have had onset during service; a respiratory disorder first diagnosed after service, is unrelated to an injury, disease, or event of service origin CONCLUSION OF LAW A respiratory disorder is not due to disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in April 2006. The notice included the type of evidence needed to substantiate the underlying claims of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Further VCAA notice is not required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, VA records, records from private medical caregivers, and afforded the Veteran a VA examination in July 2010 and a hearing before the undersigned in April 2010. As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Facts The Veteran contends that his respiratory disorder, to include asthma, emphysema, and chronic obstructive pulmonary disease (COPD), is related to service. Specifically, the Veteran contends that his asthma or emphysema began in December 1955, and the "doctors were amiss in their diagnosis" of a common cold while he was stationed in Berlin, Germany. He claims he "never in [his] life had all this congestion and breathing problems like [he] had toward the end of [his] duty there in Berlin." He specifically references the poor air quality in Berlin at that time due to air pollution. The Veteran testified that he was in a mobile radio outfit and on a daily basis drove a radio jeep. The Veteran also contends he went to the emergency room at Holy Name Hospital in Teaneck, New Jersey two months following discharge to receive treatment for respiratory problems and has had numerous bouts of breathing problems with the most serious incident occurring in 1988. The Veteran is now on daily medications and has used an inhaler. The Veteran's service treatment records show that at the entrance examination in June 1954, the Veteran had no complaints, report of symptoms, treatment, diagnosis, or history of a respiratory disorder. The physical examination was also normal. In September 1955, the Veteran was hospitalized for five days for acute tonsillitis. His symptoms included sore throat, headaches, chills, and tiredness. The right tonsil was remarkably enlarged. By history, the Veteran stated he had pneumonia somewhere between the ages of 6 to 8 (the histories list both ages) and recurrent hay fever from 7 years old to 19, but did not have any hay fever symptoms for the past two years. In November 1955, he had another attack for the tonsillitis and underwent a tonsillectomy. The Veteran stated he had been having recurrent attacks over the past two years. He had a prior tonsillectomy when he was 14 years old and was told that the tonsil would grow back. In April 1956 the Veteran was treated for a diagnosis of the common cold, noting that the symptoms, including chills, existed for three days. The symptoms started with the chills and then a slight fever. The Veteran was then admitted for three days to the U.S. Army Hospital in Berlin, Germany for an upper respiratory infection. Service treatment records also report pneumonia at the age of six and hay fever when the Veteran was younger with no symptoms in the past four years. An undated in-service radiographic report indicates "normal lung tissue." The service separation examination and clinical evaluation dated April 20, 1956 indicates all systems, other than the G-U system, as "normal." The Board notes, however, that the service separation examination occurred prior to the above-mentioned in-service hospitalization for an upper respiratory condition. On May 26, 1956, the Veteran signed a form indicating no change in physical condition since the last "final-type physical exam." In November 2005, a medical record from a private physician, M. B., M.D., includes an impression of "dyspnea, most likely a combination of asthma and COPD" and included a history that the Veteran had symptoms suggestive of asthma including congestion, shortness of breath, and wheezing at age 20, when the Veteran was in service. The Veteran related that he was seen in the emergency room, treated, and sent home with a diagnosis of hay fever. The record also indicated that the Veteran had smoked half a pack of cigarettes a day for 35 years, but stopped about 10 to 15 years earlier. He began to experience shortness of breath in 1987, began wheezing, and went to the emergency room and was told he had asthma or emphysema. The examiner's opinion was that the Veteran had dyspnea more likely a combination of asthma and COPD. The VA examiner suspected the Veteran had more asthma than COPD because the PFTs showed severe obstruction. December 2005 x-rays revealed an impression of obstructive pulmonary disease indicating the lungs are otherwise clear. In June 2006, a pulmonary function test demonstrated moderate to severe obstructive defect. In July 2006, Dr. N. M. C. listed the Veteran's current disorders as chronic obstructive pulmonary disease, hyperlipidemia, and benign prostate hypertrophy, stating the Veteran was totally disabled but stable. In May 2010, Dr. C wrote a letter noting he and Dr. B. have being treating the Veteran for COPD. It was his opinion within a reasonable degree of medical certainty that environmental stimuli were the direct cause of his initial development of COPD and has only allowed his condition to worsen over the years. Dr. C. states the problem began immediately following discharge from the military in the mid 1950's. "Documentation exists for that." The Veteran received a VA examination in July 2010 and the examiner reviewed the claims file in conjunction with his examination of the Veteran. The Veteran stated he had asthma as a teen. He was also told he had allergies to grasses, goldenrod, and trees, which currently results in sneezing in the springtime. The Veteran reported being diagnosed with COPD or emphysema in 2003. He also stated that within a couple of months after separation, he had sudden breathing difficulties and his father rushed him to the local emergency room. The Veteran could not recall the diagnosis. He remembers going to the hospital in 1957 and 1987, the latter being the last time he visited an emergency room for problems and the incident required him to use oxygen for a short period of time. The Veteran also had a long history of smoking but he quit in 1974. On examination, the Veteran's lungs were clear without wheezes with any use of accessory muscles. He does not have a daily cough but occasionally coughs up sputum. He did not have hemoptysis or anorexia. His medications caused a dry mouth or throat. He has not had any cor pulmonale, pulmonary hypertension, or history of incapacitations. His weight has been stable. As to the Veteran's current condition and its relation to service, the examiner noted that in April 1956, the Veteran was treated in Berlin for cold symptoms, chills, a temperature of 101 degrees, and a red throat, and was admitted for three days for observation with a diagnosis of the common cold. The Veteran had a long smoking history and in more recent years developed dyspnea on exertion, and his chest x-ray was consistent with COPD. Since asthma does not usually show up on x-rays and is reversible, the VA examiner has reached the opinion that the Veteran ultimately suffers from emphysema as opposed to asthma. The examiner noted that upon entrance into service, the Veteran had no complaints of the lungs or chest upon entry, nor was an abnormality found upon examination. The examiner determined that the Veteran had a common cold in service, which was not consistent with asthma. It was also his opinion that the Veteran did not have any pre-existing respiratory disorder upon entry and therefore, nothing to be aggravated by service. It was also his opinion that the current respiratory disorder of emphysema is not related to, caused by, or the result of military service but is related to the Veteran's long smoking history. The Board notes the Veteran has been service connected for residuals of the tonsillectomy occurring in December 1955. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A.§ 1110, 38 C.F.R. § 3.303. The term "disability" in 38 U.S.C.A. § 1110 means impairment of earning capacity due to disease, injury, or defect, rather than to the disease, injury, or defect itself. Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to VA disability compensation, there must be a current disability. Chelte v. Brown, 10 Vet. App. 268, 271 (1997). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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." Continuity of symptomatology after discharge is required where the condition noted during service 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). 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 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (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. Hickson v. West, 12 Vet. App. 247, 253 (1999). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board)). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Analysis As a preliminary matter, the Board addresses evidence in the file suggesting that the Veteran had a pre-existing respiratory disorder such as asthma before he entered service. Asthma, emphysema, or any other respiratory disorder were not noted on entrance examinations for service, and the Veteran was presumed to have been in sound condition upon entry to service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The standard for rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that the Veteran's disability both preexisted service and was not aggravated by service. 38 C.F.R. § 3.304(b). As there is no clear and unmistakable evidence of a respiratory disorder pre-existing service, which is supported by the VA examiner's opinion in July 2010 that the Veteran did not have a preexisting respiratory disorder upon entrance into service, the presumption of soundness is not rebutted and the Board will consider the Veteran's claim as one for service connection, rather than one based on aggravation of a pre-existing condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The service treatment records establish treatment of tonsillitis between September and December 1955 and treatment for a common cold or upper respiratory infection with chills and a fever in April 1956. The record, both in service and after service for many years, contains no evidence of respiratory disability by complaint, finding, history, treatment, or diagnosis. On the basis of the service treatment records alone, COPD, asthma, or emphysema were not affirmatively shown to have been present during service, and service connection under 38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303(a) is not established. As the preponderance of the evidence is against the claim on this theory of service connection, the benefit-of-the-doubt standard of proof does not apply. 38 C.F.R. § 3.303(a); 38 U.S.C.A. § 5107(b). As some respiratory symptoms were noted in service in April 1956 during service, the principles of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply. The service treatment records, however, lack the documentation of the combination of manifestations sufficient to identify a chronic respiratory disease and sufficient observation to establish chronicity during service, and as chronicity in service is not adequately supported by the service treatment records, as there was a single episode of cold symptoms in April 1956, then continuity of symptomatology after service under 38 C.F.R. § 3.303(b) is required to support the claim. Also as to any current pulmonary disability, first diagnosed after service, 38 C.F.R. § 3.303(d) applies. In his statements, the Veteran asserts he developed breathing problems in 1956 or 1957 shortly after separation and his father had to take him to the emergency room. The Veteran does not recall however, if there was a diagnosis at that time. He also recalled a similar episode in 1988. It appears that the records from the 50s are unavailable. The first documented evidence of a current chronic respiratory disorder occurred in 2005. Attempts have been made to obtain the medical documentation for the incidents identified by the Veteran but it appears those records have been purged. The implication is that any current respiratory disease is related to the Veteran's symptoms in service in April 1956. In fact, the Veteran argues he did not have a common cold or upper respiratory infection as the service treatment records indicate, but instead, he was misdiagnosed and it actually was the onset of his current respiratory disorder. The Veteran is competent to describe respiratory symptoms and to describe that which he personally observed or what happened to him, but the Veteran, as a lay person is not competent to state that a respiratory disease was present in service. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness). In addition, under certain circumstances, lay person is competent to identify or offer an opinion on a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau ). Respiratory disorders, including COPD, emphysema, or asthma, are not conditions under case law that have been found to be capable of lay observation because the determination as to the diagnosis or presence of any of these conditions is medical in nature, that is, not capable of lay observation, and competent medical evidence is required to substantiate the claim. Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The Board further finds that a respiratory disorder such as COPD, emphysema, or asthma, is not a simple medical condition that a layman can identify, such as a broken leg, because as noted the determination as to diagnosis depends upon medical knowledge such as interpretation of x-rays. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency is a question of fact, which is to be addressed by the Board. Jandreau, 492 F.3d at 1377. As the presence or diagnosis of a respiratory disorder, including COPD, emphysema, or asthma cannot be made by the Veteran as a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses, a respiratory disorder, including COPD, emphysema, or asthma is not a simple medical condition that the Veteran is competent to identify. Finally, it is not argued or shown that the Veteran is otherwise qualified through specialized, education, training, or experience to offer a diagnosis of a respiratory disorder, including COPD, emphysema, or asthma. For the forgoing reasons, since COPD, emphysema, or asthma are not capable of lay observation by case law, or a involve a simple medication condition under Jandreau, to the extent the Veteran's statements are offered as proof of the presence of a respiratory disorder, including COPD, emphysema, or asthma, in service or since service, the Veteran's lay statements and testimony are not competent evidence, and the statements and testimony are excluded, that is, not admissible as evidence. The Board cannot consider the Veteran's assertions as to the presence of a respiratory disorder as competent evidence favorable to claim based either on continuity of symptomatology or on a disability first diagnosed after service. The Board does consider the Veteran's evidence of symptoms such as breathing difficulties, or what treatment he has received as these are matters that are perceived through his senses. The Veteran's competency, however, to describe respiratory symptoms, observations, and events does not necessarily result in a relationship between any current pulmonary or respiratory disease, including COPD, asthma, or emphysema, first diagnosed after service and the continuity of symptomatology that the Veteran avers. To the extent the Veteran has expressed an association between a respiratory disorder, including COPD, emphysema, or asthma, to service, the Veteran's opinion as a lay person is limited to inferences that are rationally based on the Veteran's perception and does not require specialized knowledge, education training, or experience. Because the Veteran as a lay person is not competent to declare either the presence or diagnosis of a respiratory disorder, including COPD, emphysema, or asthma based on his personal observation, any inference by the Veteran based on what is not personally observable cannot be competent lay evidence. As for the Veteran describing a contemporaneous medical diagnosis, chronic obstructive pulmonary disease was first shown in 2005, approximately 50 years after service, and there is no evidence that a health-care professional diagnosed a respiratory disorder, including COPD, emphysema, or asthma based on in-service symptoms, including cold or upper respiratory infection. As the Board does not find the Veteran to be competent to establish a diagnosis or address medical causation for his claim of service connection for a respiratory disorder, the determination of whether the Veteran's statements are credible is not reached. To the extent that chronic obstructive pulmonary disease is associated with smoking, as the current claim was filed after June 9, 1998, that is, in March 2006, service connection is precluded by law for a disability, resulting from the use of tobacco products in service. 38 U.S.C.A. § 1103(a). On the question of medical causation, there is competent medical evidence for and against the claim of service connection for a respiratory disorder. The evidence of record supporting service connection for a respiratory disorder consists of the opinion of a private physician, Dr. C, who opined that the Veteran has a current respiratory disorder, COPD, and to a reasonable degree of medical certainty, is due to environmental factors. And the evidence against the claims consists of the opinion from VA examiner who has concluded that the Veteran did suffer from a common cold or upper respiratory infection and that the current respiratory disorder of emphysema is not related to, caused by, or the result of military service, but is related to the Veteran's long smoking history. With regard to medical opinions, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one opinion over another depending on factors such as reasoning employed and whether or not, and the extent to which, the prior clinical records and other evidence were reviewed. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Considering the relative merits of the analytical findings and the details of the opinions, the Board places more weight on the unfavorable medical opinion of the VA examiner because the opinion is well reasoned, detailed and consistent with other evidence of record. On the other hand, the opinion of the private doctor does not appear to be based upon the medical evidence in the claims file, but relies solely upon the history provided by the Veteran. The Board views this as a critical factor because Dr. C does not account for in-service symptoms of the common cold or upper respiratory disorder and the Veteran's extensive history of cigarette smoking. Dr. C. also does not identify the environmental stimuli that he believes lead to the onset of the Veteran's COPD. He also asserts that "documentation" exists to demonstrate the Veteran has had problems immediately after service, but as noted, the documentation was destroyed many years ago. Again, it appears he relied upon what the Veteran has told him as opposed to what is contained in the medical documentation. For the above reasons, in balancing the weight of the opinions, the Board places greater weight on the unfavorable nexus opinion, which is that it is less likely than not that the Veteran's current respiratory disorder is related to service. As the preponderance of the evidence is against the claim for the reasons articulated, the benefit of-the-doubt standard of proof does not apply. 38 C.F.R. § 3.303(d); 38 U.S.C.A. § 5107(b). ORDER Service connection for a respiratory disorder is denied. ____________________________________________ M. Mac Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs