Citation Nr: 1218924 Decision Date: 05/29/12 Archive Date: 06/07/12 DOCKET NO. 09-09 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for any acquired respiratory disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran performed active military service from June 1974 to March 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that determined that new and material evidence had not been submitted to reopen a claim for service connection for a respiratory condition. In May 2011, the Board determined that new and material evidence had been submitted to reopen the claim, and then remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. The Veteran testified before the undersigned at a January 2011 Travel Board hearing. The hearing transcript is of record. FINDING OF FACT A respiratory disability was not present in service or until years thereafter and is not etiologically related to service. CONCLUSION OF LAW A respiratory disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009). "[L]ay 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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 opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran contends that he has a current respiratory disability related to his active military service. Specifically, he reported that while serving in the Army in 1974, he was hospitalized for a week with pneumonia, and after recovering from the pneumonia, he was diagnosed with chronic bronchitis, which he has suffered with since that time. See January 2009 notice of disagreement. He also reported that he was treated for a lung condition during military service and that he was hospitalized for ten days at Fort Jackson in South Carolina. See August 2008 claim to reopen. During his January 2011 Board hearing, the Veteran testified that he started experiencing breathing problems at the beginning of his basic training. He also testified that he was treated for seven days in service for breathing problems and was sent home for two weeks to recover after his discharge from the hospital. He reported further that when he returned to active duty after his two-week recuperation period, he was given a physical profile for his breathing problems that restricted him from running jumping, squatting, and participating in strenuous exercise. The Veteran also reported that he sought treatment for his respiratory problems very soon after his discharge at Grady Memorial Hospital, and that he sought treatment at the VA Hospital in Decatur, Georgia in 1985 or 1986. See January 2011 Travel Board hearing transcript. Service treatment records reflect that the Veteran's respiratory system was normal at enlistment and at the time of his discharge examination in 1975, and there is no evidence of any period of hospitalization for any reason. Service records are also void of any evidence of the Veteran taking a leave of absence from active duty, or receiving a physical profile of any kind. Treatment records from Grady Hospital show that the Veteran was admitted in August 1991, for complaints of sudden onset chest pains with nausea and shortness of breath. Coronary artery disease and hypertension were found and cardiac vasospasm was suspected, although a myocardial infarction could not be confirmed. The lungs were clear to auscultation. Outpatient treatment records from the VA Medical Center Gainesville, Florida reflect treatment for various conditions during the early 2000s. An October 2005 VA primary care physical examination report notes bronchitis, tobacco use disorder, nicotine dependence, and old myocardial infarction, among other health concerns. There are no records of treatment in the 1980's. In a January 2011 statement, VA physician, JB, MD appears to relate asthma to the Veteran's active military service. However, the examiner did not indicate that he had reviewed the Veteran's claims file prior to rendering his opinion; the opinion is not supported by any specific clinical findings; and the examiner did not provide a rationale for his opinion. Accordingly, the Board finds that the statement lacks probative value. The Veteran was afforded a VA examination in June 2011, in response to his claim. The examiner diagnosed mild obstructive sleep apnea and chronic obstructive asthma. He also indicated that he was unable to opine whether or not the Veteran's currently demonstrated respiratory disorders (mild obstructive sleep apnea and chronic obstructive asthma) were caused or aggravated by his military service without resorting to mere speculation. However, in rendering his conclusion, he noted that he had reviewed the January 2006 and December 2008 RO decisions; that service treatment records, including the separation examination in February 1975, which showed a normal lung examination, were silent for any evidence of respiratory symptoms, treatment or diagnoses; and that there was no current objective evidence showing that either of the Veteran's respiratory conditions were caused or aggravated to any degree by his military service. The Veteran is competent to report respiratory problems in service and a continuity of symptoms since. Such symptoms are "observable" symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, his reports must be weighed against the contemporaneous record. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). As noted above, there is no record of treatment in service for a respiratory condition, and at the time of his separation examination in February 1975, the Veteran's respiratory system was evaluated as normal. The first contemporaneous evidence of a respiratory disability consists of the aforementioned August 1991 private treatment records, showing that more than 16 years after his discharge, the Veteran complained of chest pains and shortness of breath. Notably, on examination at that time, his lungs were clear to auscultation and he was diagnosed with cardiac-related diseases at that time, but no diagnosis of any respiratory disorder was made. The Board also notes that there is no record of the alleged one week hospitalization for pneumonia or seven or ten-day hospitalization for a lung disorder during military service. Nor is there any evidence of any two-week leave of absence from active duty for respiratory problems, or assignment of a physical profile for breathing problems. Furthermore, the evidence of record shows that, in contradiction to his reports, the Veteran did not seek treatment at Grady Memorial Hospital until 1991, more than sixteen years after service, and he was not treated at the Decatur, Georgia VA Medical Center until 2000. The Veteran's reports of respiratory problems in service and private and VA treatment very soon after his discharge are not supported by any documentary evidence. The Board also notes that although the Veteran reported that he was diagnosed with chronic bronchitis in service, there is no objective medical evidence of such a diagnosis in the post-service treatment records. Instead, he has been noted during VA outpatient treatment to have a history of bronchitis, but only found on examination to have asthma and sleep apnea. Accordingly, the Board finds that the Veteran's reports of respiratory problems in service, and a continuity of symptoms since are not credible. Moreover, as noted above, the June 2011 VA examiner concluded that he could not say that the Veteran's currently diagnosed respiratory disorders were caused or aggravated by his military service. His rationale was that there was no evidence of a respiratory disorder in service, and no current objective evidence showing that the Veteran's current respiratory conditions were caused or aggravated to any degree by his military service. The Board finds that the June 2011 VA examiner's opinion is more probative than the opinion of the VA physician in January 2011, for the reasons discussed above. The Veteran is competent to report the symptoms of his disability; however, it would require medical expertise to say that the current respiratory disorders, identified long after service, are the result of a disease or injury in service. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his respiratory disabilities. 38 C.F.R. § 3.159(a)(1),(2) (2011). The Board finds that the weight of the evidence is against finding a continuity of a respiratory disability since service. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). 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) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice 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. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran was informed of the requirements needed to establish service connection. Notice letters submitted in July 2007, May 2011 and April 2012, and the March 2009 Statement of the Case informed him that his claim had been denied and that he needed to submit evidence showing that a chronic respiratory condition began during active military service, or was the result of an injury or disease in service. In accordance with the requirements of VCAA, the May 2011 and April 2012 Duty to Assist letters informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Neither the Veteran nor his representative have asserted, even during his Board hearing in January 2011, that the Veteran has not received proper notice. Thus, the duty to notify has been satisfied. The Board also notes that although the Veteran has not been provided notice of the type of evidence necessary to establish a disability rating or an effective date for service connection for a respiratory disability, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that service connection for a respiratory disability is not warranted. Consequently, no disability rating or effective date will be assigned, so the failure to provide notice with respect to those elements of the claim was no more than harmless error. Similarly, although adequate VCAA notice was not provided before the initial adjudication of the claim, the Board also finds that the Veteran was not prejudiced as a result of this. In this regard, the Board notes that no additional evidence was submitted or identified in response to the notice provided in the Statement of the Case. Therefore, there is no reason to believe that the ultimate decision of the originating agency would have been different had adequate VCAA notice been provided at an earlier time. The Board notes that all pertinent evidence has been obtained in this case and the Veteran was given an appropriate VA examination in June 2011. In this regard, the Veteran reported that he was hospitalized at Grady Memorial Hospital and treated at the VA Medical Center in Decatur, Georgia within one year of his discharge. The AMC attempted to obtain records of the reported treatment in the 1970's from both facilities, but none were available. In fact, The AMC issued a Formal Finding of Unavailability in April 2012, indicating that records from the Decatur, Georgia VA Medical Center dated from the 1970's were not available. Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the denied claim. The Board is also unaware of any such evidence. In November 2010, the Board remanded the claim to afford the Veteran another VA examination to determine the etiology of any currently demonstrated respiratory disability. The Veteran was afforded a VA examination in June 2011. The examination provided an adequate opinion on the etiology of the Veteran's diagnosed respiratory disabilities, as was requested in the remand. The remand instructions were thereby complied with. Stegall v. West, 11 Vet. App. 268 (1998). In sum, the Board concludes that any errors in the notice and the development of the claims by the originating agency were not prejudicial to the Veteran. ORDER Service connection for a respiratory disability is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs