Citation Nr: 1304716 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 06-17 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for a chest disability, to include chest pain, gynecomastia, and/or cystic breast masses. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2003 to February 2005. He served in Southwest Asia from September 2003 to September 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for a right ankle injury, hemorrhoids, asthma/shortness of breath, and musculoskeletal chest pains. In August 2005, the Veteran submitted a notice of disagreement with the denials of service connection for hemorrhoids, asthma/shortness of breath, and musculoskeletal chest pains. He subsequently perfected his appeal in May 2006. In a May 2010 decision, the Board denied service connection for hemorrhoids, asthma, and chest pains. The Veteran appealed the Board's denials of service connection for asthma and chest pains to the United States Court of Appeals for Veterans Claims (Court). He did not appeal the denial of service connection for hemorrhoids. In April 2012, the Court issued a memorandum decision, setting aside the May 2010 decision and remanding the issues of entitlement to service connection for asthma and chest pain to the Board. The appeal was returned to the Board for action consistent with the April 2012 Court remand. The issue of a chest disability, to include chest pain, gynecomastia, and/or cystic breast masses, 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. VA will notify the Veteran if further action on his part is required. FINDING OF FACT The Veteran's currently diagnosed asthma is the result of a disease or injury in service. CONCLUSION OF LAW Asthma was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) As to the claim of entitlement to service connection for asthma, this claim has been granted, as discussed below. As such, the Board finds that any error related to the VCAA is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran alleges that he currently suffers from asthma as a result of his active military service. Specifically, he claims that he first experienced shortness of breath in service and that he has experienced intermittent breathing problems since that time. In light of his current diagnosis of asthma, he believes that service connection is warranted. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board notes that the Veteran's claim for service connection for asthma was denied in the Board's prior May 2010 decision on the basis of no current disability. At that time, the Board found that there was no objective evidence showing asthma and, therefore, no definitive asthma diagnosis in the record. Significantly, the Board noted that pulmonary function tests (PFTs) were normal. However, subsequent to the Board's denial, the Veteran was afforded a new VA general medical examination with PFTs in July 2011. At that time, the PFTs showed a minimal obstructive lung defect and the examiner diagnosed the Veteran with asthma. As such, the first element of Hickson is now met for the Veteran's claim for service connection for asthma. The Veteran's service treatment records indicate that he was seen multiple times in service for complaints of shortness of breath with exercise. See service treatment records, December 2004, January 2005. Although baseline spirometry performed in December 2004 was normal, a January 2005 service treatment record noted possible asthma. As there is evidence of respiratory problems in service, the second element of Hickson is met. The remaining question is whether a medical nexus exists between the Veteran's in-service respiratory complaints and his current asthma. Initially the Board notes that the record is negative for an opinion on the etiology of the Veteran's asthma. However, the Veteran is competent to offer a description of symptoms, such as difficulty breathing with exercise, that he experienced in service, and to describe a continuity of such symptoms since service. A layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. See Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has claimed that he has experienced at least intermittent difficulty breathing since service. There is no evidence to contradict this or to otherwise undermine the Veteran's credibility. As the Veteran is both competent and credible to report his in-service and post-service respiratory symptoms, the Board finds that there is sufficient evidence of intermittent difficulty breathing since service. The Board acknowledges that, although the Veteran is competent to report his symptoms such as difficulty breathing, he is not competent to attribute those symptoms to a particular diagnosis such as asthma. However, the July 2011 VA examiner is competent to provide such a diagnosis and has diagnosed him with asthma. The Court has consistently held that credible evidence of continuity of symptomatology is one type of evidence that may indicate a current disability is associated with service. As the Veteran has been found competent and credible to report a history of intermittent difficulty breathing with exercise since service and is currently diagnosed with asthma, the benefit-of-the-doubt will be conferred in his favor and his claim for service connection for asthma is granted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for asthma is granted. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of entitlement to service connection for a chest disability, to include chest pain, gynecomastia, and/or cystic breast masses, consistent with the April 2012 Court remand. As noted above, the Veteran's claim for service connection for a chest disability has been remanded by the Court. The Court's memorandum decision found that the Board's May 2010 decision failed to discuss relevant evidence when denying the claim for service connection for chest pains on the basis of no current disability. Specifically, the Court indicated that the Board failed to discuss a May 2005 private mammogram showing findings consistent with gynecomastia and that this treatment record was relevant because it potentially reflected a diagnosis consistent with complaints of pain in the left breast. Although this private mammogram shows a chest-related diagnosis, it does not provide an opinion on whether this diagnosis is related to the Veteran's military service. Further, there is no other evidence in the claims file to indicate whether the Veteran's gynecomastia, or any other chest disability, is related to his military service. The Veteran has been afforded two VA general medical examinations. The first examination report, dated in May 2005, diagnosed the Veteran with chest pain and shortness of breath of unknown etiology. It also noted that an examination of the breasts showed small cystic masses in both upper outer breasts that were tender to touch. The examiner did not provide an opinion on the etiology of the cystic breast masses or any other chest-related complaints. The Veteran was then examined in July 2011. At that time, the examiner diagnosed him with asthma ("chest pain with shortness of breath"). However, the examiner again failed to provide an opinion on the etiology of any chest disability, including a May 2005 diagnosis of gynecomastia. In light of these deficiencies, the VA general medical examinations of record are inadequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Finally, there is some indication that the Veteran's complaints of chest pain may be related to anxiety, suggesting that these complaints may be symptoms of his service-connected posttraumatic stress disorder (PTSD). See VA treatment records, April 2007, May 2007. Additionally, his service records indicate that he was sometimes exposed to various environmental hazards while deployed in Southwest Asia. Therefore, on remand, the examiner should also provide an opinion on secondary service connection and comment on the Veteran's in-service exposures. As the Court explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its medical findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. In this case, there is no medical evidence to indicate whether the Veteran's gynecomastia or any other chest disability is related to his military service. As such, the Veteran's claim of entitlement to service connection a chest disability, to include chest pain, gynecomastia, and/or cystic breast masses, must be remanded for a new VA examination and opinion. As the case is being remanded, the Board will take the opportunity to obtain any VA treatment records not yet associated with the claims file and to provide the Veteran with all appropriate notice. Accordingly, the case is REMANDED for the following actions: 1. Copies of all outstanding VA treatment records from the Central Alabama Veterans Health Care System, and any other VA facility identified by the Veteran, should be obtained and added to the claims folder. 2. Provide the Veteran with additional notice compliant with the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 3. The Veteran should be afforded an examination with an appropriate examiner in order to determine the nature and etiology of his claimed chest disorder(s). All indicated studies should be performed. The claims folder should be provided to the examiner for review of pertinent documents therein. The examination report should reflect that such a review was conducted. The examiner must identify any current chest disorder and state whether it is at least as likely as not that the Veteran's currently diagnosed gynecomastia and any other identified chest disability were caused or aggravated (permanently increased in severity beyond the natural progression of the disorder) by his military service, to include any exposures to environmental hazards while serving in Southwest Asia, or by a service-connected disability. The examiner should specifically comment on the Veteran's complaints of intermittent chest pain since service, the previous VA examinations, and the April and May 2007 VA treatment records suggesting that the Veteran's respiratory and chest complaints may be anxiety-related. If the examiner does not attribute the Veteran's symptoms of chest pain to a known clinical diagnosis, s/he must state whether his chest pain is a symptom of an undiagnosed illness, to include muscle pain or cardiovascular signs or symptoms. If so, s/he should state whether it is at least as likely as not that these symptoms are the result of any identifiable etiology. Specifically, the examiner should state whether the Veteran's complaints of chest pain are symptoms of his service-connected asthma and/or PTSD. S/he should specifically comment on the April and May 2007 VA treatment records suggesting that the Veteran's respiratory and chest complaints may be anxiety-related. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 4. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to service connection for a chest disability, to include chest pain, gynecomastia, and/or cystic breast masses, should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative, and after they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, and any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his remaining claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that the Veteran's failure to report for any scheduled examination may result in the rating of the claim on the evidence of record if it is an original claim or denial if it is a claim to reopen or for increase. See 38 C.F.R. § 3.655(b) (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs