Citation Nr: 1209497 Decision Date: 03/14/12 Archive Date: 03/28/12 DOCKET NO. 08-12 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for residuals of a right knee injury, to include arthritis. 2. Entitlement to service connection for a lung disorder, to include chronic bronchitis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. R. Bodger, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to July 1965 in the Air Force. He also served in the Naval Reserves and had active duty for training (ACDUTRA) from March 22, 1964 to April 4, 1964, from May 31, 1964 to June 13, 1964, and from December 21, 1964 to January 2, 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. It is noted that two formal RO hearings were conducted in February 2008 and February 2009. During the February 2008 hearing, the Veteran clarified that he was not seeking service connection for his sinusitis but instead was specifically limiting his claim of service connection to his bronchitis and asserted that his in-service diagnosis and treatment for pneumonia has caused his chronic bronchitis. As such, the Board has limited its scope of review solely to the Veteran's diagnosis of bronchitis and will not address the Veteran's pre-existing sinusitis. The issue of service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's lung disability is not related to an in-service disease or injury. CONCLUSION OF LAW The lung disability was not incurred in service. 38 U.S.C.A. § 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Prior to initial adjudication of the Veteran's lung disorder claim, a letter dated in September 2005 satisfied the second and third elements of the notification provisions. Quartuccio, 16 Vet. App. at 187; Dingess, 19 Vet. App. 473. Letters dated in March 2006, July 2006, September 2006, and October 2009 satisfied the first element under the duty to notification provisions. Id. While this notice was not sent prior to initial adjudication, the Veteran has not been prejudiced as he was provided adequate notice, given additional time to submit additional evidence and argument, and the claim was readjudicated thereafter. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Records associated with his disability benefits with the Social Security Administration (SSA) have also been associated with the claims file. During the February 2009 formal RO hearing, the Veteran testified that he was hospitalized at the hospital in Lackland Air Force Base in Texas in July 1965 for about one week for pneumonia. The RO attempted to obtain the treatment records from the Lackland Air Force Base. However, in a memorandum, the RO determined that these records were unavailable. Specifically, in April 2009, the RO requested them from the National Personnel Records Center (NPRC) via a PIES request. In September 2009, NRPC provided a negative response. The Veteran was notified that these records were not available in a September 2009 letter. Further, the Veteran submitted a signed form authorizing VA to obtain private medical records from a Dr. A. The RO attempted to obtain these records in September 2005 and February 2006, but to no avail. The Veteran was notified of these failed attempts. The Board finds that further attempts to obtain these records would be futile. The Veteran has not submitted additional, competent evidence for which further searches are warranted. As such, VA has satisfied its duty to assist. The duty to assist also includes providing a VA examination or obtaining a medical opinion, when the law so provides. The Veteran was afforded a VA respiratory examination in February 2008 to determine the nature and etiology of his lung disorder, to include chronic bronchitis. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nichols, 21 Vet. App. 303, 312 (2007). The VA examination is adequate as the examiner reviewed the claims file, was provided with the relevant information, articulated it in the examination report, and provided reasoning for his medical opinion. Id., see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. Newhouse v. Nicholson, 497 F.3d 1298 (2007). II. Service Connection The Veteran contends that his lung disorder resulted from service. For the reasons that follow, the Board concludes that service connection is not warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, 21 Vet. App. at 309. Post-service treatment records indicate that the Veteran has been diagnosed with chronic bronchitis. The Veteran has a current disability and the Board turns to the issues of in-service incurrence and nexus. See Davidson, 581 F.3d 1313. The Veteran's service treatment records indicate that his lungs were found to be clinically normal during the May 1965 enlistment examination and he was found to be qualified for enlistment. The May 1965 Report of Medical History noted a history of hay fever and allergy to grass and pollen. A May 1965 Request for Medical Data from the Veteran's private physician establishes that the Veteran had hay fever and was treated for sore throat and moderate nasal congestion. A May 1965 ENT consultation record provides that the Veteran had subsiding rhino-sinusitis and mild vasomotor rhinitis. In June 1965, the Veteran sought treatment for complaints of a cough, chest pain, and chills. A chest x-ray report dated in June1965 showed a diffuse increase in pulmonary markings consistent with chronic bronchitis, which was most marked in the basilar segments of the left lower lobe and possibly represented early pneumonia. Follow-up treatment notes also dated in June 1965 indicate that the Veteran had bronchopneumonia for which he was prescribed medication and bed rest. A June 22, 1965 ENT consultation sheet provides that the Veteran's pneumonia was resolving and that his pre-existing hay fever symptoms, to include post nasal drip and tenderness, were worse during his service than they were prior to service enlistment. In a June 24, 1965, the Veteran filed an Application for Discharge. The June 24, 1965 Medical Board Report established a diagnosis of chronic sinusitis manifested by postnasal drip and pain and indicated that it existed prior to service. The report also approved the Veteran's application for discharge. In the June 1965 separation examination, the Veteran's sinuses were found to be clinically abnormal but his lungs were found to be normal at that time. Private treatment notes dated in September 1999 indicate that the Veteran suffered from an upper respiratory infection and private treatment notes dated in November 1999 and December 1999 show diagnoses of COPD and bronchitis. VA physical examination reports dated in December 2004 and December 2005 indicate that the Veteran denied any chest pain, shortness of breath, or dyspnea on exertion. He was found to have good air entry bilaterally with no rales, rhonchi, or wheezing. In a January 2005 emergency room treatment note, the Veteran complained of fever, cough, and shortness of breath with activity. He was diagnosed with bronchitis and sinusitis. In April 2005, the Veteran was diagnosed with acute bronchitis, sinusitis, and seasonal allergies. In September 2005, the Veteran was again treated for bronchitis. The Veteran was afforded a VA respiratory examination in February 2008 where the examiner indicated a review of the claims file. Chest x-rays taken in association with the VA examination showed no acute process. The February 2008 pulmonary function test indicated borderline normal spirometry with moderately reduced diffusing capacity. The Veteran was diagnosed with chronic bronchitis and the examiner opined that the Veteran's chronic bronchitis was not caused by or a result of the in-service pneumonia. The examiner reasoned that the February 2008 chest x-rays did not reveal any scarring of the lungs from the pneumonia. The examiner also provided that the Veteran's smoking history (approximately 80 packs per year) was likely the cause of the Veteran's chronic bronchitis. In this case, the Veteran testified during two formal RO hearings in February 2008 and February 2009 where he asserted that he has suffered from intermittent lung problems since service discharge and that his lung condition, to include his chronic bronchitis, was caused by his in-service pneumonia. He indicated at the time of these hearings that a VA physician noted scarring of the lungs due to his pneumonia which caused his bronchitis. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Barr, 21 Vet App 303; Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran is competent to report his in-service and post-service symptoms. But unlike the varicose veins in Barr or dislocated shoulder in Jandreau, lung disorders, to include bronchitis, are not conditions that can be causally related to military service. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d at 1377. As such, the Veteran is not competent to proffer a diagnosis or provide an opinion as the etiology of his disability. The Veteran is also competent to describe conversations with treating physicians. However, his statements regarding these physician's medical opinions are too attenuated to constitute competent medical nexus evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The Board sympathizes with the Veteran and acknowledges that his chronic bronchitis likely causes a significant impact on his daily life. However, the weight of the evidence is against a finding that the lung disability was incurred in or related to service. Again, post-service medical records show that the Veteran did not start seeking treatment for any lung problems until 1999, over thirty years after service discharge. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fec. Cir. 2000)(It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). The Board finds that the medical evidence discounting a link to service outweighs the Veteran's statements offered many years after service. The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a lung disorder. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. ORDER Entitlement to service connection for a lung disorder, to include chronic bronchitis, is denied. (Continued on next page) REMAND Reason for Remand: To obtain a VA examination The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. An examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the Veteran's claim for a right knee disorder, to include arthritis, the Veteran's medical records indicate that he has a current diagnosis of osteoarthritis of the right knee. His service treatment records indicate that he injured his right knee and was treated with a whirlpool and ace bandage. In a March 1964 treatment note there is an indication that the Veteran had torn ligaments. Post-service treatment records, dated in May 1998, show complaints of right knee pain for which he was diagnosed with osteoarthritis. In a June 1998 x-ray, the Veteran's bilateral knees were shown to be normal. In a July 2005 decision of the Social Security Administration (SSA), it is noted that the Veteran suffered from rheumatoid arthritis for his he was diagnosed in November 2004 although he was having pain and limitation of motion prior to his diagnosis. VA treatment records provide that the Veteran submitted to a physical in December 2004 where he denied any history of osteoarthritis and all his joints had normal ranges of motion with no crepitus, effusion, and joint swelling. In March 2005, the Veteran reported to the emergency room at the Northern Indiana VA Medical Center with complaints of "arthritis pain all over." In a separate March 2005 VA treatment note, the Veteran indicated that his left ankle was swollen, the joints in his arms, hands, knees, ankles and hips were painful, and that he had suffered from this pain for five to ten years. He was given a diagnosis of arthritis pain. In a March 2005 addendum note, it was noted that the Veteran had arthritis, not rheumatoid arthritis. In an April 2005 treatment note, the Veteran again complained of joint pain and was diagnosed with osteoarthritis of the knee. In a separate April 2005 physical therapy consult note, the Veteran was fitted for bilateral knee braces. In a May 2005 vocational rehabilitation note, the Veteran again complained of bilateral knee pain for which he was using a cane and wearing knee braces. During formal RO hearings in February 2008 and February 2009, the Veteran testified that he injured his right knee in February 1964 during basic training for the Naval Reserves. He testified to seeking treatment for his knee through whirlpool therapy and ace bandage wraps. The Veteran also indicated that since his in-service injury he suffered from consistent right knee pain. Again, a veteran, as a layperson, is competent to report symptoms that he/she experiences. See Jandreau, 492 F.3d at 1376-77. The Veteran is competent to report his symptoms. The evidence establishes a possible relationship between his current disability and service. Importantly, however, the Veteran has not been provided a VA examination in connection with this claim. In light of this fact, as well as the evidentiary posture as discussed herein, the Board concludes that an examination is warranted pursuant to VA's duty to assist. See McLendon, 20 Vet. App. 79. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of her claim, of failing to so report. See 38 C.F.R. § 3.655 (2011). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of right knee disability. The claims folder must be made available to and be reviewed by the examiners in conjunction with the examination. All indicated studies or testing should be conducted. All pertinent pathology should be noted in the examination reports. The examiner should express opinions as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's right knee disorder, to include arthritis, had its clinical onset in service or are otherwise related to active duty. The examiner should clarify whether the Veteran has a diagnosis of arthritis and, if so, whether it is related to service. A complete rationale should be given for all opinions expressed. The Veteran has asserted that he injured his knee during service and that he has continued to have knee pain since service separation. He is competent to attest to factual matters of which he had first-hand knowledge as well as to the fact that his symptoms of knee pain started during service and have continued since service separation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2011), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. Notify the Veteran that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 3. Then, readjudicate the claim for service connection. If the decision remains adverse to the Veteran and his representative should be provided with a supplemental statement of the case and given an appropriate period of time to respond. The Veteran 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs