Citation Nr: 1301008 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 10-40 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1987 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT The preponderance of the competent and credible evidence does not show that the Veteran has asthma related to his military service. CONCLUSION OF LAW The criteria for an award of service connection for asthma have not been met. 38 U.S.C.A. §§ 1110, 1112, 1117, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2009. In the letter, the RO informed the Veteran of what evidence was required to substantiate the claim for service connection for asthma and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of relevant records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be necessary to decide the claim. 38 C.F.R. § 3.159(c)(4) . The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records and private treatment records identified by the Veteran. The Veteran also submitted lay statements. Neither the Veteran nor his representative has 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. The Veteran was afforded VA medical examinations in May 2009 and July 2010. The opinions were rendered by medical professionals following a physical examination, interview of the Veteran, and review of the claims file. The examiner obtained an accurate history and listened to the Veteran's assertions. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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, 16 Vet. App. 183. II. Service Connection The Veteran is seeking service connection for asthma, which he contends is the result of his exposure to desert sand, heat, and oil fires while he was on active duty in Saudi Arabia and Kuwait. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. See 38 U.S.C.A. § 1110, 1121 (West 2002); 38 C.F.R. § 3.303(a) (2012). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. 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) (2012). 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) (2012). For certain chronic qualifying disabilities, including undiagnosed illnesses, service connection may also be established for a Persian Gulf veteran if the disease becomes manifest during active duty in the Southwest Asia theater of operations during the Persian Gulf War or within the specified presumptive period after service. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). 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 the claimant. In this case, the Veteran's service treatment records include no complaints of asthma or related symptoms such as trouble breathing. On his separation examination in November 1992 he denied a history of ashma, shortness of breath, chronic cough, and pain or pressure in the chest. His clinical evaluation noted no respiratory condition. His post-service private treatment records show he had been diagnosed with and was being treated for asthma by November 2001, nine years after service. His asthma was described as being exercise-induced and he was prescribed medication. The Veteran underwent VA examinations in May 2009 and July 2010. He related during the examinations that he experienced an onset of shortness of breath and wheezing while in service in southwest Asia. He reported experiencing breathing problems after aerobic or strenuous activities. He also reported experiencing breathing problems after exposure to burning oil fields, sand, or heat while in service, although in 2009 he stated he was unsure whether the symptoms started immediately after exposure. He also reported difficulty breathing at night. On one occasion he stated that he used his roommate's inhaler during service and felt relief from his wheezing. Both examiners diagnosed the Veteran with ashma and opined that his asthma did not as least as likely as not start while in service. The 2009 VA examiner explained that if environmental exposures in service had caused his asthma, she would have expected that it would have been severe enough that he would have had symptoms and sought treatment in service. The 2010 examiner similarily opined and added that asthma is not: (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or (3) a diagnosable chronic multisymptom illness with a partially explained etiology. Several lay statements were also submitted into evidence. One February 2009 statement from the Veteran's roommate in service in 1992 related a time that the two had completed a three-mile run together when the roommate saw the Veteran having trouble breathing and wheezing. The roommate stated that for the remainder of his enlistment he saw the Veteran have similar symptoms after running. A February 2009 statement from another marine who served with the Veteran related that when they returned from Saudia Arabia, the marine noticed the Veteran having trouble catching his breath after physical activities. Both men related that the culture of the Marines and the Veteran's attitude likely kept him from reporting his breathing troubles while in service. The Veteran's wife also submitted a statement saying that she had seen the Veteran experience trouble breathing after exercising while he was in service. She related that his breathing seemed worse after he spent time in Tonga in August 1992. She also explained that the Veteran did not report his symptoms while in service because he did not want to look weak. The Board has considered all of the evidence in this matter, to include the lay statements that the Veteran first began experiencing breathing difficulty in service. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). In this case, the Veteran is competent to report an onset of trouble breathing and wheezing while in service as he has personal knowledge of that fact. The marines he worked with and his wife also are competent to report that they witnessed the Veteran's breathing troubles after exercise. However, it is notable that the Veteran's service records do not reflect he sought treatment for breathing troubles in service although he sought treatment for other ailments, including a sprained ankle, knee pain, a rash on his arms, and sore throats. The Veteran also denied ashma, shortness of breath, chronic cough, and pain or pressure in the chest in his November 1992 separation examination and his clinical evaluation noted no respiratory condition. Further, the earliest treatment records in evidence discussing the Veteran's post-service diagnosis of asthma are from 2001, nine years after service. Although he is competent to report his symptoms of trouble breathing and wheezing, the Veteran is not competent to opine as to the etiology of his currently diagnosed asthma as such an opinion requires more than simple lay observation. Nor is there any evidence the Veteran's fellow marines or wife have the necessary medical background to opine as to the etiology of the Veteran's asthma. The Veteran is also not competent to diagnose or to relate his current asthma disability to his active service. The only competent etiology opinions in this case are those of the two VA medical examiners, both of whom opined that asthma due to the Veteran's environmental exposures would have manifest itself in service and prompted him to seek medical attention. Thus, both examiners concluded that the Veteran's currently diagnosed asthma is not as least as likely as not related to his environmental exposures in service. Further, there is no competent medical opinion that the symptoms the Veteran described in service were in fact a manifestation of undiagnosed asthma so as to establish his disability had its onset in service. Service connection may also be established for a Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses that became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a specified presumption period following service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. A "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome). 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). Both the Veteran's private physician and the examiners who conducted his VA examinations diagnosed the Veteran with asthma. The examiner at the Veteran's 2010 VA examination stated that asthma has known etiologies and pathophysiologies and is not : (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or (3) a diagnosable chronic multisymptom illness with a partially explained etiology. Therefore, service connection for the Veteran's asthma disability may not be established under 38 U.S.C.A. § 1117. Overall, the preponderance of the evidence is against the Veteran's claim for service connection for asthma. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for asthma is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs