Citation Nr: 1126982 Decision Date: 07/20/11 Archive Date: 07/29/11 DOCKET NO. 07-37 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include asthma and chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for a heart condition, to include an enlarged heart. 3. Entitlement to service connection for a spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to July 1984. This matter came to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. In light of the recent holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled), the Board has recharacterized the issue of entitlement to service connection for a respiratory disorder, previously addressed as separate claims for service connection for asthma and COPD. The Veteran requested a hearing before a Veterans Law Judge in the November 2007 VA 9 form. However, in an October 2010 communication, the Veteran clarified that she no longer desires a hearing on appeal. Therefore, her request has been withdrawn. 38 C.F.R. § 20.702(e) (2010). In a November 2009 communication, the Veteran indicated that she was seeking increased ratings for posttraumatic stress disorder, headaches, and seizures. Those claims have not been adjudicated by the RO and are not on appeal. Those claims are referred to the RO for appropriate action. The issue of entitlement to service connection for a spine disability is REMANDED to the RO via the Appeals Management Center, in Washington, D.C. FINDINGS OF FACT 1. A respiratory disorder diagnosed as asthma and COPD, was not shown to have had onset during service; and a respiratory disorder, first documented after service, is not shown to be related to an injury, disease, or event of service origin. 2. A heart condition was not shown to have had onset during service; a cardiac disorder was not manifest to a compensable degree within one year of separation from service; and there competent medical evidence does not show that the Veteran has a current diagnosis of a heart condition that is etiologically related to a disease, injury, or event of service origin. CONCLUSIONS OF LAW 1. A respiratory disorder, to include asthma and COPD, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). 2. A heart condition was not incurred in or aggravated by active service, nor may it be presumed to have been incurred during service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to notify and to assist Upon receipt of a complete or substantially complete application, VA must provide notice to the claimant that: (1) informs the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informs the claimant about the information and evidence that VA will seek to provide; and (3) informs the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); 73 Fed. Reg. 23,353 (Apr. 30, 2008). The RO sent correspondence in September 2006, a rating decision in January 2007, and a statement of the case in November 2007. Those documents discussed specific evidence, particular legal requirements applicable to the claims, evidence considered, pertinent laws and regulations, and reasons for the decision. VA made all efforts to notify and to assist the Veteran with evidence obtained, the evidence needed, and the responsibilities of the parties in obtaining the evidence. The Board finds that any defect of timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to the claimant's receipt of compliant notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the final adjudication in the September 2008 supplemental statement of the case. A statement of the case or supplemental statement of the case can constitute a readjudication decision that complies with all applicable due process and notification requirements if adequate notice is provided prior to that adjudication. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The provision of adequate notice prior to a readjudication, including in a statement of the case or supplemental statement of the case, cures any timing defect associated with inadequate notice or the lack of notice prior to the initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370 (2006). In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran's complete service medical records are not available in this case. In correspondence in November 2007, January 2008, and March 2008, the RO informed the Veteran that her service medical records were unavailable. The Veteran has had an opportunity to submit any records in her possession. Under such circumstances, there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully whether reasonable doubt exists to resolve in favor of the Veteran. Cuevas v. Principi, 3 Vet. App. 542 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Because those records, if they existed, remain absent from the file, the Board's analysis has been undertaken with the heightened obligation in mind. The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, the Board finds it unnecessary to schedule the Veteran for VA examinations to adjudicate the claims of service connection for a respiratory condition or an enlarged heart because there is no competent medical evidence of record of a current diagnosis of a heart condition or a respiratory disability associated with any event, injury, or disease in service, nor is there any medical evidence that etiologically links those claimed disabilities to service. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4) (2010). Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Furthermore, the Board finds that if there is any deficiency in the notice to the Veteran or the timing of the notice it is harmless error because the appellant had a meaningful opportunity to participate effectively in the processing of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Board erred in relying on various post-decisional documents for concluding adequate notice was provided, but the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of her claim, and therefore the error was harmless). Service Connection The Veteran asserts that she developed a respiratory disorder, to include asthma and COPD, in service. She also claims entitlement to service connection for a heart disability. Service connection may be established for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303, 3.304 (2010). Disability which is proximately due to or the result of a disease or injury incurred in or aggravated by service will also be service-connected. 38 C.F.R. § 3.310 (2010). 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 pre-existing such service, was aggravated by service. That may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a) (2010). Service connection may also be warranted 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) (2010). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2010). Certain chronic diseases, such as cardiovascular-renal disease, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. § 3.309(a) (2010). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The available service medical records do not reveal findings, treatment, or diagnosis of any respiratory disorder or a heart disorder. After service, VA hospitalization records from November 2000 to June 2001, show treatment for chest pain with nitroglycerin. Additionally, the Veteran reported being diagnosed with asthma in 1982. Asthma was effectively controlled with inhalers. The Veteran also related a history of smoking tobacco. A December 2000 chest X-ray revealed mild chronic bronchitis. A June 2006 medical treatment note showed a history of COPD shown by chest X-rays in June 2005. The Veteran's history was significant for cigarette smoking for over 25 years. It was noted that the Veteran used an inhaler for breathing problems four times a day. A June 2006 EKG revealed abnormal T-wave and left ventricular hypertrophy. On examination, the Veteran had regular heart rate and rhythm with no murmurs, rubs, or gallops. A finding of irregular heart rate was recorded in June 2007. In this case, the Board finds that the Veteran is credible and competent to report that she has experienced respiratory problems since service. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). Although the Veteran is shown to have current diagnoses of asthma and COPD, and there is evidence of left ventricular hypertrophy, along with other cardiological findings, the evidence of record does not indicate that either condition was incurred in service, nor does the medical evidence otherwise link either condition to any disease, injury, or event of service origin. Although the Veteran's complete service medical records are not in the claims file, there is no evidence contemporaneous with service from any other source to affirmatively show that a respiratory disorder or a heart disability was present during service. Thus the Board finds that chronicity of a respiratory disorder or a heart condition in service is not established in this case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Accordingly, the Board has carefully considered the Veteran's contentions that she suffered from a heart condition or a respiratory disorder during service. However, the Board finds that the Veteran's statements alone are not sufficient to prove that those conditions were treated in service because none of the evidence of record corroborates these statements, nor is there any evidence contemporaneous with service of a respiratory disorder or a heart condition during service. With regard to a respiratory disorder, the earliest documented evidence of asthma or COPD is in VA treatment records in 2000 and 2006, respectively. That evidence is indicative of a period of more than 15 years after service discharge without treatment, which weighs heavily against the claim. 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). To the extent that VA hospitalization records from November 2000 to June 2001, noted that the Veteran's report of a diagnosis of asthma in 1982, a bare transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional be a VA or private physician. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Accordingly, this report is of little probative value and the Board finds that the competent evidence does not show a continuity of symptomatology. Similarly, while the medical evidence of record shows complaints of chest pain, and that the Veteran has undergone procedures in light of cardiac symptoms and to detect any cardiac diagnosis, there medical evidence of record does not suggest that any cardiac disability initially manifested during her period of active service, or within a year of separation of service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38C.F.R. §§ 3.307, 3.309 (2010). Treatment records on file shows that the Veteran's complaints of chest pain were initially documented after 2000. The lack of any evidence of a cardiac disability, or even symptoms, for over 15 years between separation and the initial findings or documented complaints of a heart disability weighs against the claim. Again, a prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. To the extent that the Veteran may believe that her respiratory disorder and heart condition originated during service, the Board notes that she is not competent to provide medical opinions regarding causation. The Board acknowledges that the Veteran is competent to give evidence about what she experienced. For example, she is competent to report that she experiences certain symptoms. Washington v. Nicholson, 19 Vet. App. 362 (2005). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The Veteran is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because she does not have the requisite medical knowledge or training. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this case, no medical professional has established a relationship between any heart condition or respiratory disorder, to include asthma and COPD, and the Veteran's active service. The Board has considered the Veteran's statements asserting a nexus between her currently-diagnosed respiratory disorder, and active duty service. However, the Board emphasizes that asthma, COPD, and a heart condition, to include clinical findings of left ventricular hypertrophy, are not the types of disorders that a lay person can provide competent evidence on questions of etiology or diagnosis. 38 C.F.R. § 3.159(a)(2) (2010). 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. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (lay evidence can be competent and sufficient to establish a diagnosis when a lay person is competent to identify the medical condition; layperson would be competent to identify a condition such as a broken leg, but would not be competent to identify a form of cancer). Accordingly, absent competent evidence demonstrating that the Veteran's disabilities had onset in service and competent medical evidence indicating a relationship between the disabilities and service, the Board finds that service connection for a heart condition and a respiratory disorder, to include asthma and COPD, is not warranted. While the Veteran has claimed a continuity of symptomatology, the Board finds the lack of medical evidence of complaint or treatment for many years after service to be more persuasive. To the extent that a diagnosis of COPD has been attributed to smoking tobacco, as the claim of service connection for a respiratory condition was received after June 1998, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to the Veteran's use of tobacco products during service. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2010). Accordingly, the Board finds that the evidence does not support a grant of service connection for a heart condition or a respiratory disorder because neither disability is shown to have been present during service; cardiovascular-renal disease is not shown to have manifested to a compensable degree within one year following separation from service; and the heart and respiratory disability first shown many years after separation from service are not shown by competent evidence of record to be related to any disease, event, or injury during service. As the preponderance of the evidence is against the award of service connection, the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). ORDER Service connection for a respiratory disorder, to include asthma and chronic obstructive pulmonary disease, is denied. Service connection for a heart condition, to include an enlarged heart, is denied. REMAND Although the Board regrets the additional delay, the Veteran's claim for service connection for a spine disability must be remanded for additional development. A remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010); Robinette v. Brown, 8 Vet. App. 69 (1995). The Veteran asserts that she developed a spine condition in service. Although the available service medical records do not show treatment for a spine disability, the records document that the Veteran incurred head trauma when she was sexually assaulted in June 1980. After service, VA treatment records show degenerative spondylosis with spurs at C6-C7. An August 2010 neck CT scan revealed moderate degenerative disc and spondylosis from C5-C7 with marginal spurs and degenerative facet joints C2-C4 on the right and C2-C3, C5-C7 on the left. Although the Veteran is competent to report the onset of a spine disability during her service, she is not competent to diagnose or to relate any current spine disability to active service. In this case, the Veteran has not yet been afforded a VA examination. Accordingly, the Board finds that a VA examination is necessary in order to fairly decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Associated with the claims file are VA treatment reports dated through December 2007. Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claim, an attempt to obtain any records dated after December 2007 should be made. 38 C.F.R. § 3.159(c)(2) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any VA outpatient treatment reports dated since December 2007. If the Veteran identifies any other relevant medical records, those records should also be obtained. 2. After completing the above development, schedule the Veteran for a VA orthopedic examination to determine the etiology of any spine disorder. Any indicated tests should be accomplished. A complete rationale for all opinions must be provided. The examiner should review the claims file and should note that review in the report. The examiner should consider the Veteran's treatment for a traumatic head injury in service, for which she has already established service connection for seizures, headaches, and posttraumatic stress disorder, and her report of a continuity of symptomatology since service. The examiner is asked to determine whether it is it at least as likely as not (50 percent or greater probability) that any spine disability that is currently present was incurred in or aggravated during the Veteran's active service. The examiner should consider and discuss the available service medical records that document a traumatic head injury during service, and the post-service medical findings pertaining to the cervical spine, to include the August 2010 neck CT scan. 3. Then, readjudicate the claim. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs