Citation Nr: 1301964 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 05-28 792A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for emphysema. REPRESENTATION Veteran represented by: Fleet Reserve Association ATTORNEY FOR THE BOARD Jennifer R. White, Associate Counsel INTRODUCTION The Veteran had active military duty from April 1979 to April 1999, when she retired. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St Petersburg, Florida. In pertinent part, in that rating decision the RO denied service connection for emphysema. In May 2010 and August 2011, the Board remanded this matter for additional development. The case has been returned to the Board for further appellate review. In September 2009, the Veteran requested her Travel Board hearing be rescheduled as she could not appear at that time. The Veteran failed to report for the rescheduled Travel Board hearing in November 2009. She has not requested that the hearing be rescheduled. Accordingly, her request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). FINDING OF FACT Resolving all doubt in the Veteran's favor, emphysema had its onset during active service. CONCLUSION OF LAW Emphysema was incurred in active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) 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 and 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in December 2003 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. In the instant case, the Veteran was never informed of how VA determines disability ratings and effective dates with respect to the claim considered herein. However, as the instant decision denies service connection, no disability rating or effective date will be assigned. Accordingly, any absence of Dingess notice is moot. Therefore, no further development is required regarding the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and 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 appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, 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). Regulations and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also 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). In general, direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In evaluating the claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). However, in certain instances, 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, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that she suffered from breathing disorders while on active duty, which is now manifested by her claimed emphysema. Service treatment records reveal that the Veteran was seen in July 1997 with a five-day history of chest tightness. The assessment was rule out exercise and occasional reactive airway disease. Her treatment plan included an albuterol inhaler, one to two puffs as required. At a July 1997 follow-up visit the Veteran reported that she only has symptoms with exercise. The assessment was rule out exercise induced asthma. In August 1997 the Veteran was seen with complaints of exercise induced reactive airway disease. The impression was questionable chronic obstructive pulmonary disease (COPD)/restrictive airway disease. A pulmonary function test (PFT) was conducted in August 1997. The results were that there was no evidence of obstruction or restriction by flow volume loop and lung volumes. Diffusion capacity of carbon monoxide, single breath was mildly reduced. It was noted that the isolated finding may be indicative of pulmonary vascular or interstitial lung disease. In November 1997 the Veteran had a physical readiness test (PRT) screen. She requested a PRT waiver because of questionable asthma-like symptoms for the past two years which she stated had worsened. She reported that symptoms were mostly exercise-induced and unaided by inhalers. The Veteran also reported her concerns that the symptoms were occurring after less exercise than before. She stated that she did not think she could complete PRT before the onset of symptoms and felt that she "can't get any air." The Veteran's discharge Report of Medical History dated October 1998 indicates that the Veteran had shortness of breath and pain/pressure in her chest. The physician's summary indicates that these symptoms had been evaluated by internal medicine. There is no indication of a diagnosis at discharge. The Veteran was afforded a general VA examination in October 1999. The Veteran reported that she smoked less than one pack of cigarettes a day for the prior 22 years. The examiner indicated that the Veteran's lungs were clear to auscultation bilaterally with coarse breath sounds. The examiner noted that the Veteran had shortness of breath on and off but did not appear to have chronic obstructive pulmonary disease. A December 2001 private radiological record indicates that the Veteran had a large lung volume which was suggestive of emphysema. A November 2002 note from a private physician indicates that a chest x-ray showed emphysema and the Veteran said that she would cut down on her smoking. The Veteran submitted a claim dated November 2003 which indicates that she had recently been diagnosed with emphysema. A July 2005 VA radiological report indicates that the Veteran had a normal chest x-ray with clear lungs. A July 2006 VA treatment note indicates that the Veteran denied dyspnea on exertion, wheezing, coughing, hemoptysis, shortness of breath or orthopnea. She had intermittent chest discomfort with questionable costrochondritis. The Veteran had a March 2007 VA pulmonary consult. The Veteran wanted a sleep study screening because she believed she had sleep apnea. She denied wheezing or shortness of breath. The Veteran was afforded a VA examination in July 2010. She indicated that she could not take a full breath and any pressure on her chest caused her to have trouble breathing. She indicated that she had shortness of breath with exertion and when she rushed to do anything. She also had shortness of breath when she felt anxious. The Veteran indicated that taking albuterol helped. The examiner noted that the Veteran's VA prescriptions did not indicate a prescription for albuterol and there were no complaints or treatment for lung conditions noted in VA treatment records since 2002. The Veteran indicated that she taken albuterol since 1995. The examiner indicated that the Veteran had mild COPD with no evidence of asthma based on PFT testing. The examiner indicated that the Veteran's lung condition was less likely than not related to active service as there was no documented chronicity of the disability. The Veteran was seen in service one time for non-specific tightness of the chest and was given albuterol for unknown reasons. Additionally, there was no chronicity of problems from the time of service. The examiner also indicated that the Veteran's respiratory condition is most likely related to chronic persistent cigarette abuse. A May 2011 addendum indicated that the examiner had reviewed the claims file in conjunction with the July 2010 examination. While the medical opinion weighs against the Veteran's claim, the record reflects that she was seen for suspected lung disease in service. She has claimed pulmonary problems since service. She had twenty years of active service prior to her retirement and less than 3 years later the presence of chronic emphysema was confirmed on x-ray studies. While not conclusive, the favorable evidence in the claim is in equipoise with the negative evidence. In that case, doubt should be resolved in the Veteran's favor. Accordingly, service connection is for application. ORDER Entitlement to service connection for emphysema is allowed. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs