Citation Nr: 1127470 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 05-40 167 ) 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 respiratory disorder. REPRESENTATION Appellant represented by: Kathy A. Lieberman ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which reopened the Veteran's claim, and denied entitlement to service connection on the merits. The claim was first reviewed by the Board in February 2008, at which time the claim was remanded for further development. The claim was again reviewed by the Board in September 2008, at which time the claim was denied. The Veteran subsequently submitted a Notice of Appeal to the United States Court of Appeals for Veterans Claims (Court), indicating his disagreement with the denial of his claim of service connection for a respiratory disorder. The Secretary contended that the Board correctly applied the presumptions of soundness and aggravation. Additionally, the Secretary argued that the 2008 VA medical examination was adequate. However, the Court issued a December 2010 Order vacating the September 2008 Board decision and remanding the appeal for readjudication consistent with the parties' Joint Motion for Remand (JMR). In accordance with the JMR, the Board translated all of the Spanish documents in the claims folder. After translation, the documents were not found to relevant to the Veteran's claim on appeal. The documents discussed the state of the Veteran's mental health condition, which is not currently on appeal before the Board. FINDINGS OF FACT 1. The credible medical evidence establishes that bronchial asthma existed prior to service and was not aggravated by service. 2. Chronic obstructive pulmonary disorder was first manifested many years after the Veteran's service and is not medically related to his service. CONCLUSIONS OF LAW Chronic obstructive pulmonary disorder and bronchial asthma were not incurred or aggravated in the Veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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; 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). Proper notice from VA must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in July 2005 and March 2008. Specifically, the 2005 notice informed the Veteran of information and evidence necessary to substantiate the claim for service connection and also the relative burdens of VA and the Veteran, relating the information and evidence that VA would seek to provide and that which he was expected to provide. The subsequent 2008 notice informed the Veteran of information and evidence that governs the initial assignment of a disability evaluation and the regulations regarding the effective date of the establishment of service connection. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although this last notice was delivered after the initial denial of the claim, the AOJ subsequently readjudicated the claim based on all the evidence in the May 2008 supplemental statement of the case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the Veteran was not precluded from participating effectively in the processing of his claim and the late notice did not affect the essential fairness of the decision. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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). The Veteran submitted written statements. Additionally, the RO has obtained the Veteran's service treatment records, VA outpatient treatment records, and private medical records. Furthermore, the Veteran was afforded a respiratory VA examination in April 2008. Significantly, the Veteran has not 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 to the Veteran is required to fulfill VA's duty to assist the Veteran 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). II. Service Connection Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease 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 (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). However, the absence of a documented disability while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2010). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service." A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2010). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. The Veteran seeks service connection for a respiratory disorder. Specifically, the Veteran contends that his respiratory condition initially manifested in service. In this case, the Veteran's April 1968 induction examination does not note a respiratory disorder of any kind. However, a December 1968 consultation revealed that the Veteran reported a history of bronchial asthma. Specifically, he reported that he had been hospitalized for three to four months during the past few years for the condition, and that he had received intermittent adrenaline injections in the emergency room prior to service. This constitutes clear and unmistakable evidence that asthma existed prior to service. As will be discussed below, recently obtained evidence, specifically an April 2008VA examination report, indicates clearly and unmistakably, that the Veteran's asthma was not aggravated by his service. The Board has carefully considered the Veteran's assertions that his respiratory condition is related to his active service. However, as a layperson, he is not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition. See Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the Veteran is competent to give evidence about the symptoms that he has experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency must be distinguished, however, from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, VA may consider inconsistent statements, internal inconsistency and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995). Although the Veteran now claims, more than thirty five years later, that he had no pre-service history of a respiratory disorder, the Board finds that the statements he made concurrently with treatment in 1968 are more credible than those made long after the fact, in conjunction with his claim. The fact that he has submitted a physician's statement, reiterating his allegation that he had no respiratory disorder prior to service is of no consequence. The mere transcription of the Veteran's stated medical history in a medical report does not make it medical fact. When that history is not supported by the record, as here, it will be discredited. In view of the patent inconsistencies between the Veteran's statements regarding the onset of his respiratory condition, and the lack of any objective evidence supporting those contentions, the Board finds that his allegations overall are not credible, and thus carry little probative weight. Caluza v. Brown, 7 Vet. App. 498 (1995). The question, therefore, is whether there is also clear and unmistakable evidence that the respiratory disorder was not aggravated by such service. As previously stated, pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2010); Green v. Derwinski, 1 Vet. App. 320 (1991). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2010). The Veteran was afforded an April 2008 respiratory VA examination in order for a determination to be made as to aggravation. After a review of the file, including the Veteran's service treatment records, the physician concluded that the Veteran's preexisting respiratory disorder did not permanently worsen during his five months of service. This conclusion is supported by the record, which includes a December 1970 VA general medical examination, showing that the Veteran had not had an asthma attack since he was discharged from service. Subsequent outpatient clinical records, dated from December 1975 to November 1979, are devoid of complaint, treatment, or diagnosis of any respiratory problems, as are VA examination reports dated in June 1980, June 1997, and June 1999. Because the Veteran's medical records immediately following service show no treatment for asthma, the April 2008 medical opinion finding no evidence of a permanent worsening of his preexisting disease is found to be credible. As such, the clear and unmistakable evidence demonstrates both that bronchial asthma existed before acceptance and enrollment, and that it was not aggravated by such service. Regarding the Veteran's other diagnosis of chronic obstructive pulmonary disorder (COPD), the record shows that the first documented diagnosis is in January 2003, in the context of a sleep study. Primary care visits thereafter, in November 2004 and April 2005, show that the Veteran remained largely asymptomatic. At his April 2008 VA examination, however, the Veteran reported asthma attacks twice per week, wheezing weekly, and difficulty breathing on moderate and severe exertion only. After a review of the file, the examining physician concluded that there was no evidence that the Veteran's COPD was at all related to his five months of service, primarily because he was not diagnosed with the disorder until long after his separation, and after a long period of no respiratory complaints. This opinion is fully supported by the record as described above, which is devoid of respiratory complaints from 1968 to 2003. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (2000). This opinion is the sole etiological opinion of record relating to the Veteran's diagnosis of COPD. Absent evidence to the contrary, the Board is not in a position to further question the opinion. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In sum, the preponderance of the evidence is found to be against the Veteran's claim; therefore, the benefit of the doubt provision does not apply. Therefore, service connection for a respiratory disorder is not warranted. ORDER Entitlement to service connection for a respiratory disorder, including chronic obstructive pulmonary disease and bronchial asthma, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs