Citation Nr: 1302230 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 10-37 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a respiratory disability. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from October 1956 to October 1958. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2). 38 U.S.C.A. § 7107(a)(2) (West 2002).) During the current appeal, and specifically in November 2011, the Veteran testified at a videoconference hearing conducted before the undersigned Veterans Law Judge (VLJ). 38 U.S.C.A. § 7107 (c) (West 2002 & Supp. 2011). A transcript of the testimony has been associated with the Veteran's claims file. In February 2012, the Board remanded the Veteran's claim for further evidentiary development. Specifically, the Board requested that the Agency of Original Jurisdiction (AOJ) (1) contact the Veteran and ask him to (a) identify all sources of treatment for his respiratory problems, (b) obtain from him the appropriate release of information forms, and (c) secure copies of any private medical records issued by the identified treatment providers; and (2) schedule the Veteran for a VA examination to determine the nature and etiology of his respiratory disorder(s). In February 2012, the Appeals Management Center (AMC) sent the Veteran a letter and asked that he complete the necessary authorization and release forms. The AMC also initiated a request to have the Veteran scheduled for a VA examination for his respiratory condition. The examination was completed in March 2012, and a copy of the VA examination report has been associated with the Veteran's claims file. However, the AOJ did not attempt to obtain the Veteran's private treatment records as requested in the remand directives, even after receipt of the necessary medical release forms. As such, the Veteran's claim was remanded again in June 2012, and the Board specifically instructed the AMC to obtain any pertinent treatment records issued by Veteran's private physicians, F.H, M.D., and T.G., M.D. Requests were sent to both physicians, and private treatment records issued by Dr. F.H. have since been obtained and associated with the claims file. The AMC subsequently readjudicated the claim in the December 2012 Supplemental Statement of the case (SSOC). Thus, the AOJ has complied with all of the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDING OF FACT The Veteran's currently diagnosed respiratory disorder was first identified many years after service and is not shown to be related to his military service. CONCLUSION OF LAW The Veteran does not have a respiratory disorder that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board will address the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2011). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)(2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. In this respect, through a November 2009 notice letter, the Veteran received notice of the information and evidence needed to substantiate his claim. Thereafter, he was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board finds that the November 2009 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned November 2009 letter. Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the November 2009 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 472 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the notice requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claims on appeal. Review of the Veteran's claims file reflects that a response to the RO's request for records stated that the Veteran's service treatment records were "fire-related." In other words, they were involved in a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri, and are unavailable. When a claimant's treatment records are lost or destroyed, the VA has a "heightened" duty to assist in the development of the claims. See Washington v. Nicholson, 19 Vet. App. 362. 369-70 (2005). See also 38 C.F.R. § 3.159(c). An April 2004 Request for Information under the Personnel Information Exchange System (PIES) returned no service treatment records, but did retrieve copies of the Veteran's applicable sick and/or morning reports. To help assist the Veteran in reconstructing the remainder of his medical records, the RO, in the November 2009 notice letter, asked the Veteran to complete a VA NA Form 13055, and, in so doing, identify the name of the organization and unit he served in during his period of active duty, the dates of his treatment, and the name and location of the hospital/dispensary where he was treated. The Veteran completed the designated NA Form 13055 in November 2009 and December 2009. Specifically, the Veteran provided the name of the organization to which he was assigned in service, the location of the medical facility where he received treatment for his claimed disorder, and the years he received treatment for his claimed disorder. In a December 2009 letter, the RO asked that the Veteran provide a more specific date range of treatment in order to help narrow its search for his records. In a December 2009 statement, the Veteran stated that he was treated for breathing problems at the base hospital in Germany in the spring of 1958. In January 2010, the RO narrowed its search and made a formal request for the Veteran's medical/dental and Surgeon General Office (SGO) records pertaining to treatment for respiratory problems while serving with the "Co. C 35th Tank Battalion, 3rd Armor Division" from January 1958 to April 1958. This request for information returned no records and the response further indicated that there were no army reports created after March 1953. In a letter dated in February 2010, the RO discussed the various attempts made to retrieve the Veteran's outstanding service treatment records, and asked that the Veteran provide any alternate source from which the RO could obtain his service treatment records. It does not appear that the Veteran provided any additional evidence or information in support of his claim. In March 2010, the RO issued a Formal Finding on the Unavailability of Service Treatment Records, listing the various attempts made to locate the Veteran's records. According to the memorandum, all procedures to obtain records pertaining to the Veteran had been correctly followed, all efforts to obtain the needed information had been exhausted, and any further attempts were futile. The Board finds that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. All identified and available private and VA treatment records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the service connection claims adjudicated herein. Pursuant to the June 2012 remand directives, the AMC attempted to obtain any additional treatment records issued by the Veteran's private physicians, Drs. T.G. and F.H., respectively. In letters dated in June 2012, the AMC requested any treatment records pertaining to the Veteran's respiratory condition dated either from January 2000 to the present time (from Dr. T.G.), or December 2009 to the present time (from Dr. F.H.). Treatment records issued by Dr. F.H. have since been obtained and associated with the claims file. In a July 2012 letter, the AMC informed the Veteran that they had requested his treatment records from Dr. T.G., but had been unsuccessful in retrieving these records. The Veteran was asked to contact the AMC or send any additional information within ten days. In a statement, date stamped as received in July 2012, the Veteran stated that he had submitted any and all evidence possible and reiterated his previous assertions In addition, records of the Veteran's post-service treatment at the VA Medical Center (VAMC) in Oklahoma City, Oklahoma have been associated with the claims file and were reviewed by the RO in connection with the Veteran's claim. Additionally, the Veteran has submitted written statements and has testified before the undersigned VLJ in support of his appeal. Neither the Veteran, nor his representative, have otherwise alleged that there are any outstanding medical records probative of the claim that need to be obtained. Pursuant to the February 2012 remand, the Veteran also underwent a VA examination in connection with his claimed disorder in March 2012; the report of which is of record. 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. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board finds that the VA examination obtained in this case is adequate, as it was predicated on a physical evaluation as well as consideration of the medical records in the Veteran's claims file and the Veteran's reported history. The opinion considers all of the pertinent evidence of record, to include statements given by the Veteran at the time of the VA examination, and provides a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met. 38 C.F.R. § 3.159(c)(4). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury to disease occurred in service; there must be chronic disability resulting from that injury to disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Certain chronic diseases, may be presumed to have been incurred during service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). The Veteran maintains his respiratory disability was incurred during his period of active service. Specifically, the Veteran contends that he was exposed to lead-based paint and exhaust fumes while serving as a vehicle mechanic in service. During his November 2011 hearing, the Veteran described some of his military responsibilities and stated that one of his duties involved painting armored vehicles. According to the Veteran, he was not provided with any protective breathing equipment while conducting these duties, and as a result, was exposed to the paint and exhaust fumes associated with this task. The Veteran claims that he began developing breathing problems soon thereafter and relates his current respiratory disorder to this in-service exposure. See November 2011 Hearing Transcript, pp. 3-4, 7, 12. The Veteran also submitted three statements from his fellow servicemen, all of which attest to the fact that the Veteran was responsible for spray painting a number of armored tanks, a tank retriever, and a personnel carrier in service. According to the Veteran's fellow servicemen, the Veteran was not provided with any form of breathing protection while fulfilling these duties, and began developing respiratory problems as a result of his exposure to the lead-based paint fumes, as well as the exhaust fumes associated with the tanks. In statements submitted by J.S. and C.W., it was noted that the Veteran was in fact hospitalized for his breathing problems in the spring of 1958. See June 2010 Statements of J.S., C.W., and D.P. As previously discussed above, the Veteran's service treatment records are not available and are presumed destroyed. Extensive efforts were made by VA to obtain these records, with no success. The Board notes that VA has heightened duties when the Veteran's service treatment records have been destroyed. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, the case law does not establish a heightened benefit-of-the-doubt standard, only a heightened duty of the Board to consider applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). However, even accepting as true the statements made by the Veteran, the evidence does not show that the Veteran sought post-service treatment for his respiratory condition until many years after service. Indeed, the Board observes that the post-service record on appeal is absent any notations, complaints or findings of a respiratory disorder for many years after his separation from military service. Moreover, the medical evidence does not show that the Veteran sought treatment for any health related issues, to include symptoms that may have been early manifestations of a respiratory disorder, immediately following his separation from service or for many years thereafter. In fact, the first post-service records potentially pertaining to the Veteran's respiratory condition are progress notes dated in January 2007, which reflect the Veteran's complaints of cold symptoms as well as an assessment of sinusitis. A May 2007 VA primary care note reflects the Veteran's complaints of chronic obstructive pulmonary disease (COPD), as well as an assessment of COPD. A December 2007 letter addressed to the Veteran's physician, Dr. F.H., and possibly issued by the Veteran's insurance provider, noted that the Veteran had a diagnosis of chronic bronchitis, and asked Dr. F.H. to make certain whether he authorized the Veteran's home medical equipment for his respiratory problems. In the January 2008 Confirmation Order, Dr. F.H. confirmed the Veteran's diagnosis of chronic bronchitis and authorized the use of the overnight oximetry test for the Veteran. A May 2009 office report issued by the Veteran's physician, Dr. T.G., reflected a diagnosis of COPD, and progress notes issued by the Veteran's health care provider S.F., D.O., and dated in January 2009, reflect an assessment of upper respiratory infection. VA treatment records dated from October 2008 to March 2010 reflect ongoing complaints of, and treatment for, COPD. Pursuant to the February 2012 Board remand, the Veteran was afforded a VA examination in March 2012, at which time the examiner interviewed the Veteran regarding his medical history, reviewed the Veteran's claims file, and conducted a physical evaluation of the Veteran's respiratory and nasal system. During the examination, the Veteran described his military responsibilities and stated that he began experiencing breathing problems as a result of his exposure to paint fumes while performing his military duties in service. He further added that he was hospitalized for these breathing problems for a period of two weeks in the spring of 1958. According to the Veteran, he has continued to experience breathing problems since his in-service exposure, and his respiratory problems have worsened throughout the years. The Veteran also described a history of nasal obstruction and post-nasal drainage and claims to have visited with an ear, nose and throat (ENT) specialist a year prior wherein he underwent a computed tomography (CT) of his sinus cavity, the results of which were shown to be normal. The Veteran attributes his sinus problems to his in-service exposure to paint and exhaust fumes while fulfilling his military duties. When providing his post-service occupational history, the Veteran denied a history of smoking, and noted that he worked as a farmer from 1958 to 1995. According to the Veteran, working as a dairy farmer for most of his life exposed him to certain levels of dust and grass pollen. With respect to his current symptoms, the Veteran reported to experience shortness of breath with exertion, wheezing and cough. Based on her review of the claims file, as well as her discussion with, and evaluation of the Veteran, the examiner diagnosed the Veteran with COPD and allergic rhinitis and determined that said disorders were less likely than not related to his military service. With respect to the allergic rhinitis, the examiner acknowledged the Veteran's post-service occupational history working as a dairy farmer, as well as his complaints that the dust and grass pollen bothered him a lot, and attributed this nasal disorder to this exposure. With respect to the Veteran's respiratory condition, she (the examiner) based her conclusion on the fact that there was no documented evidence that the Veteran's in-service exposure to tank exhaust and spray paint caused a chronic lung condition in the years following his discharge. According to the examiner, there was no documented evidence reflecting any hospitalization for a respiratory condition after service. The examiner also relied on the Veteran's post-service occupational history and his exposure to dust and grass pollen while working as a dairy farmer, and noted that the Veteran was first diagnosed with COPD in 2007, forty-nine years after service. According to the examiner, "[t]here is over 40 years of gap in the medical reports regarding treatment for a respiratory condition after military." Based on the reasoning provided, the examiner further determined that it is less likely than not that the Veteran's previously diagnosed bronchitis and upper respiratory infection are related to the Veteran's military service. The Board notes that the objective medical evidence reflects that the Veteran has a respiratory disorder. As noted above, the Veteran's service treatment records are unavailable. However, the Board has accepted the Veteran's statements regarding the occurrence of an in-service injury as true. The remaining question, therefore, is whether there is medical evidence of a relationship between the current disability and military service. Based on the evidence of record, the Board finds the March 2012 VA medical opinion to be highly probative, as it is based on a discussion with the Veteran regarding his medical history and current condition, a review of the medical records, and a complete physical examination. In addition, the examiner offered a thorough rationale for the opinion reached that is supported by the evidence of record. Further, in reviewing the Veteran's medical records, the examiner specifically noted that the Veteran did not have a diagnosed respiratory disability until 2007, forty-nine years after the Veteran's discharge. Even taking into consideration the Veteran's reported claim that he was exposed to exhaust and paint fumes in service, the examiner still determined that the Veteran's current respiratory disability was not related to service, noting his post-service medical records that were clear for any findings of a respiratory disability until many years after service. Furthermore, the VA examiner took note of the Veteran's post-service exposure to dust and pollen while working as a dairy farmer for thirty-seven years after service when reaching her conclusion. Thus, the Board finds that the March 2012 VA medical opinion is entitled to more weight than the Veteran's assertion that his current respiratory problems arose in service. In reaching this determination, the Board has also considered the lay statements of record. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997), Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991)("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, however, although the Veteran is competent to describe symptoms congruent to a respiratory problem, he is not competent to comment on the etiology of such a disorder. While a layperson can provide evidence as to some questions of etiology or diagnosis, the question of a medical relationship between a respiratory condition and service, which would require more than direct observation to resolve, is not in the category of questions that lend themselves to resolution by lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), Barr v. Nicholson, 21 Vet. App. 303, 309 (2007), Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Here, the Veteran is competent to report symptoms of a respiratory condition because such actions come to him through his senses and, as such, require only personal knowledge rather than medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran is not competent to opine on the question of etiology and, therefore, his statements asserting a relationship between his respiratory condition and service do not constitute competent medical evidence on which the Board can make a service connection determination. In Savage v. Gober, 10 Vet. App. 488 (1997), the Court noted that, while the concept of continuity of symptomatology focuses on continuity of symptoms, not treatment, in a merits context, the lack of evidence of treatment may bear upon the credibility of the evidence of continuity. The Board notes that it may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints of or treatment for the relevant condition or symptoms. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37. Notwithstanding that fact, the lack of contemporaneous medical records is something that the Board can consider and weigh against a Veteran's lay evidence. Id. Even if the Veteran's contentions could be read as claiming continuity of symptomatology since service, the medical evidence of record discloses forty-nine years from the time the Veteran separated from service and the first evidence of record indicating treatment for and a diagnosis of a respiratory disorder. While the Veteran is competent to report what he observed, the Board does not find his recollections to be reliable in view of the absence of evidence supporting his contentions, and in light of the competent medical evidence of record. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Even assuming, arguendo, that the Veteran has suffered from respiratory problems since service, the earliest medical records associated with the claims file are VA treatment records dated in June 2001. Furthermore, VA treatment records dated from June 2001 to December 2005 reflect the Veteran's complaints of, and treatment provided for various health concerns, but are absent any mention, complaints, notations or treatment of respiratory problems. It should be noted that a missed opportunity to report and seek treatment for his respiratory problems weighs against the Veteran's current assertions. In the absence of any objective evidence to support his complaints of continuity of symptomatology in the years since service, the initial demonstration of the disability at issue forty-nine years after service is too remote from service to be reasonably related to service and diminishes the reliability of the Veteran's recollections. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). While the Board does not doubt the sincerity of the Veteran's current recollections that his symptoms of respiratory problems have been present and have continued to worsen since his years in service, as discussed previously, the record discloses a forty-nine year gap without any clinical evidence to support any claim of in-service respiratory problems with continuity of symptomatology thereafter. The fact that the VA treatment records do not provide subjective or objective evidence that support the Veteran's recollections of continuous symptomatology since service weighs against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991); see Savage, supra. The examiner's assessment that the Veteran's respiratory disability was consistent with his post-service occupational exposure to pollen and dust particles also supports the finding that there was no continuity of symptoms since service. Therefore, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a respiratory disability. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision does not help the Veteran. See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for a respiratory disability is not warranted. ORDER Entitlement to service connection for a respiratory disability is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs