Citation Nr: 1306058 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 00-05 651 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a respiratory disorder. 2. Entitlement to service connection for an innocently acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to an initial rating in excess of 30 percent for the service-connected acne vulgaris. 4. Entitlement to an effective date earlier than May 8, 1998 for the grant of service connection for acne vulgaris. REPRESENTATION Appellant represented by: Jeffrey E. Marion, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from November 1976 to February 1977 and from March 1980 to June 1980. This case initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the RO. The claims of service connection for a respiratory disorder and for a psychiatric condition were previously remanded by the Board for additional development of the record. The claims for an increased rating for the service-connected acne vulgaris and an earlier effective date for the grant of service connection for the acne vulgaris are on appeal from an October 2011 rating decision by the RO. The Veteran testified at a hearing that was held at the RO in April 2000 in support of his claim of service connection for a psychiatric disorder. The issues of service connection for an innocently acquired psychiatric disorder, an increased rating for the service-connected acne vulgaris, and an earlier effective date for the grant of service connection for acne vulgaris are being remanded to the RO. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints of findings of chronic obstructive pulmonary disease, chronic bronchitis or asthma in service or for many years thereafter. 2. The currently demonstrated respiratory disorder including chronic obstructive pulmonary disease, chronic bronchitis and asthma is not shown to be due to an event or incident of the Veteran's period of active service. CONCLUSION OF LAW The Veteran's respiratory disability including chronic obstructive pulmonary disease, chronic bronchitis and asthma is not shown to be due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in April 2004 which explained how VA could assist him with developing evidence in support of his claim and what needed to be shown in order to substantiate a service connection claim. A letter in January 2006 also provided this information. Another letter containing this information was sent to the Veteran in January 2010; this letter also explained how ratings and effective dates are assigned for service connected disabilities. The Veteran's claim for service connection for a respiratory disorder was most recently adjudicated in October 2012. VA also must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, private treatment records, VA treatment records, and Social Security Administration (SSA) disability records. There is also testimony and written statements that the Veteran submitted in connection with his claim for service connection for a psychiatric disorder. The Veteran was afforded appropriate VA examinations, including an October 2010 respiratory examination. For these reasons, the Board concludes that the requirements of VCAA have been met. Service connection The Veteran contends that he has a respiratory disorder that is related to his military service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A the time of his service entrance examination in October 1976, the Veteran reported having shortness of breathing and dyspnea after running 1-2 miles. The service treatment records show that the Veteran was treated for an upper respiratory infection in December 1976 during his initial period of active service and an episode of having a dry cough accompanied by other symptoms such as nasal congestion in April 1980 during his second period of active service. An August 1997 private treatment record shows that the Veteran had had dyspnea on exertion and recurrent bronchitis for the past several years. It was noted that the Veteran continued to smoke despite these symptoms. The pulmonary function testing report in October 1997 noted a 5 year history of chronic bronchitis, cough, and a 25 year history of smoking. At that time, the Veteran was found to have a severe obstructive defect. A November 1997 treatment note showed that the Veteran had asthma and used an inhaler. The VA treatment records from the late 1990's also showed diagnoses of chronic obstructive pulmonary disease (COPD)/chronic bronchitis and asthma. An undated treatment record noted that a chest x-ray study in 1998 showed some pleural thickening. A follow up chest x-ray study was noted to have been normal. A February 1999 treatment note indicated that the Veteran had had shortness of breath since he was 15 years old with no prior history of asthma. A July 1999 treatment record added that he had severe COPD, but continued to smoke. Later treatment records continue to show that the Veteran had COPD. The Veteran was afforded a VA respiratory examination in October 2010. The examiner noted that the Veteran had a single episode of cough with shortness of breath in service, which resolved, and thereafter, was fine without recurrent respiratory symptoms. The Veteran was noted to have been a chronic smoker and to have smoked up to a pack and a half of cigarettes daily. Progressively, he had developed symptoms of COPD. At present, his respiratory symptoms were quite disabling in that he developed shortness of breath even on minimal exertion. The pulmonary function testing was noted to show severe respiratory impairment. The examiner noted that the Veteran was in the service for a short period of time, when he had one episode of upper respiratory infection and did not have a diagnosis of COPD or emphysema in the service. It was noted that he was significant smoker and that this caused his present condition. The examiner opined that it was less likely than not that his symptoms in service were the same as his present condition. The examiner added that the evidence did not show that it was at least as likely as not that the Veteran's current respiratory problems were due to his military service. The Veteran did not have COPD in service or any chronic respiratory problems in service. Rather, many years after service, the Veteran was noted to have progressively developed COPD as a result of his history of smoking. There was no evidence, other than the Veteran's bare contentions, that this was related to service. After a careful review of the record, the Board finds that the service treatment records referable to the Veteran's two brief periods of active service are negative for any complaints or findings referable to COPD, chronic bronchitis or asthma. Moreover, the medical records show that he was initially treated for these conditions beginning many years after service. The initial treatment records in 1997 noted that the Veteran had a long history of smoking and reported that he had experienced chronic bronchitis and coughing for previous five years. In 1999, he was noted to have severe COPD that was related to his smoking habit. The VA examination in October 2010 related the COPD to the Veteran's progressive smoking, the examiner opined that it was less likely than not that the Veteran's current respiratory disability was related to any event or incident of either brief period of active service. To the extent the Veteran has not specifically articulated why he believed that his current COPD was related to service, the Board finds the Veteran's lay assertion to be of limited credibility for the purpose of establishing a continuity of symptomatology referable to COPD or other chronic lung disease beginning in service. Moreover, the more reliable medical history provided by the Veteran himself in connection treatment after service does not serve to relate the onset of his respiratory conditions to the time he was in service. Hence, on this record, the Board finds that the claim of service connection for a respiratory disorder must be denied. 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 is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Service connection for a respiratory disorder is denied. REMAND With regard to the claimed psychiatric disorder, earlier in the course of this appeal the Veteran asserted that his psychiatric disorder was the result of an incident in service when reportedly was choked by another service member or was due to reported generalized harassment in service. However, in a letter received in April 2012, the Veteran's attorney asserted that the Veteran was a victim of a sexual assault during service. To the extent that this is the first report of such an event, this matter must now be clarified and, if indicated, addressed in light of the procedures used in consideration of sexual assault cases. With regard to the claim for increase, the Veteran is shown to have been last examined in April 2011 and appears to be asserting that the service-connected acne vulgaris had worsened since that time. Therefore, the Board finds that he should be afforded another examination to determine the current severity of the service-connected disability. With regards to the claim for an earlier effective date, the Veteran's attorney appears to assert that the effective date should be in September 1986, when the Veteran filed his original claim of service connection for a skin disorder. However, in addressing an earlier effective date, the Board notes that the RO had previously denied the Veteran's original claim of service connection for acne vulgaris in a December 1986 rating decision. As of yet, neither the Veteran nor his attorney has asserted with specificity an argument of CUE or any other theory entitlement with respect to that earlier rating decision. Hence, this matter must be referred back to the RO so that the Veteran can be afforded an opportunity to address the question of CUE in the December 1986 rating decision or another theory of entitlement. Accordingly, these remaining matters are REMANDED to the RO for the following action: 1. In accordance with 38 C.F.R. § 3.304(f)(5), the RO should take all indicated action in order to send the Veteran an appropriate stressor development notice for PTSD based on a personal assault as identified by his attorney. He must be notified that his claimed personal assault in service may be corroborated by evidence from sources other than his service records, as defined in this regulation. All specific examples of alternative sources of evidence listed in 38 C.F.R. § 3.304(f)(5) must be included in the notification letter, and the Veteran must be given an opportunity to submit any type of alternative supporting evidence. The notice must include a VA Form 21-0781a, Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Trauma for the Veteran to complete with respect to the recently identified incident of sexual assault noted by his attorney. 2. The RO then should take all indicated action in order to obtain all needed development in support of any identified claim that he was sexually assaulted in service, including obtaining relevant records and examinations, if necessary. 3. The RO then should have the Veteran scheduled for a VA examination in order to ascertain the current severity of the service-connected acne vulgaris. The examiner should review the claims file in conjunction with the examination. The examiner should fully document all of the manifestation of the service-connected acne vulgaris. 4. The RO also should take all indicated steps to contact the Veteran and his attorney so that they can identify with specificity any instance of CUE involving the rating decision that denied his original claim of service connection for a skin condition in September 1986 or address any other theory of entitlement. 5. After completing all indicated development, the RO should readjudicate the Veteran's claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEPHEN L.WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs