Citation Nr: 1306908 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 09-29 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a respiratory disability, to include asthma. WITNESS AT HEARING ON APPEAL Veteran REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from November 2003 to April 2004 and from October 2004 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). FINDING OF FACT The probative evidence of record does not show that the Veteran's current respiratory disorder, to include asthma, is related to his active duty service. CONCLUSION OF LAW A respiratory disorder, to include asthma, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim for entitlement to service connection for a respiratory disorder, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Prior to the initial adjudication of the Veteran's claim, a letter dated in December 2007 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, with the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). The Board finds that the notice requirements that VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and VA treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Although a June 2009 DA Form 3349, Physical Profile, reflects that the Veteran was pending a Military Evaluation Board (MEB), the RO was unable to locate any records from a MEB despite several attempts. Additionally, in February 2012, the RO contacted the Veteran to determine if he underwent a MEB or Physical Evaluation Board (PEB), and the Veteran responded that he did not, and indicated that he was given a medical discharge before the evaluation. Accordingly, further attempts to obtain MEB or PEB records would be futile. Id. VA is required to provide the Veteran with a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The Veteran underwent VA examinations in September 2010 and January 2012 with regard to his respiratory disorder. He has not indicated that he found the VA examinations provided to be inadequate. Moreover, the Board finds that the VA examinations and opinions provided are adequate, as they are based on a thorough review of the evidence in the Veteran's claims file and provide supporting explanation and rationale for the conclusions reached. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service connection may be granted for a 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(a). In addition, service connection may 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). Pursuant to 38 C.F.R. § 3.303(b), VA may award service connection where a claimant can demonstrate "(1) that a condition was 'noted' during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. A claimant may rely on lay evidence "to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007) (footnote omitted). "[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331, and 1336-37 (Fed. Cir. 2006). The Veteran's service treatment records do not show any complaints of or treatment for asthma or a respiratory disorder. A May 2003 examination reveals that the Veteran's lungs and chest were normal. In a report of medical history, completed at that time, the Veteran reported a history of upper respiratory infection and cough at age seven, but denied wheezing, asthma, shortness of breath, and bronchitis. The records also show that the Veteran sustained a chest injury in May 2005 when a drive shaft fell on his chest. Service treatment records from June 2005 and July 2005 note continued complaints of chest pain following his injury with one report of a dry cough. In a January 2008 statement, the Veteran described his in-service chest injury. He indicated that a drive shaft fell on his chest causing pain and shortness of breath the following day. He reported that he was given a breathing test in January 2006, and was diagnosed with asthma. A January 2008 statement from K.W., who served with the Veteran, reveals that he observed the Veteran's chest injury during service when a drive shaft fell on him. He noted that the Veteran complained that he could not breathe very well without pain, and that the residuals of his chest injury were a problem for the rest of his deployment. VA treatment records from January 2006 through January 2010 show diagnoses of and treatment for asthma. A January 2006 chest x-ray was normal. A January 2006 x-ray of the ribs showed no evidence of fracture or pneumothorax on the right, but there was a metallic foreign body found, probably in the anterior soft tissues. A January 2006 treatment record reveals that the Veteran complained of pain along the right ribs with exertion. A March 2006 record notes the Veteran's complaints of chest pain following a crush injury during service. The Veteran denied any associated symptoms, and there was no evidence of cough, congestion, dyspnea, or hemoptysis. The Veteran reported that he smoked one pack of cigarettes per day for the prior 8 years. On physical examination, the lungs were clear to auscultation, bilaterally. There were no wheezes, rhonchi, or rales. He noted pleuritic chest pain when taking a deep breath or when moving or stretching. Another March 2006 record notes the Veteran's reports of chest pain in the sternum which radiated to the lower rib cage with shortness of breath. A March 2006 VA psychiatry note reflects the opinion of a psychiatrist that the etiology of the Veteran's pain was unclear, but that she (the psychiatrist) suspected it might be pleural or parenchyma related to significant dust and possible chemical exposure in Iraq. A March 2006 computed tomography (CT) scan of the chest showed no acute cardiopulmonary process. Chest x-rays revealed no significant interval change from January 2006 and no acute cardiopulmonary process. Pulmonary function tests were conducted in May 2006, which showed that lung volumes were within normal limits. The FEV1/VC ration was reduced, suggesting a moderate obstructive ventilator impairment. There was significant increase in FEV1 or VC post-bronchodilator. Diffusing capacity for carbon monoxide was within normal limits. In June 2006, the Veteran reported chest pain with deep breathing and exertion. Pulmonary function tests showed that his FEV1/VC ratio was reduced, suggesting a moderate obstructive ventilator impairment. Another June 2006 record notes the Veteran's complaints of shortness of breath and cough, which started on active duty in Iraq. He stated that he was a smoker for the prior 10 years with no history of emphysema or chronic obstructive pulmonary disease (COPD) in his family. He indicated that he had a brother with asthma. The VA physician stated that, statistically, the Veteran's symptoms were more likely to be asthma than COPD. He noted daily symptoms and frequent nocturnal symptoms. Pulmonary function tests placed him in the moderate persistent category. The Veteran was started on a medium dose inhaled steroid and bronchodilator. A January 2010 note reflects that the Veteran was doing well on his regimen of Advair and Albuterol. PFT's, conducted in January 2010, showed that the FEV1/FVC ratio was reduced, which suggested a moderate obstructive ventilator defect. During a December 2009 hearing before the Board, the Veteran testified that he injured his chest during active duty service, which caused him to have tightness in his chest and difficulty breathing at that time. He noted that he was diagnosed with asthma in 2006. In September 2010, the Veteran underwent a VA respiratory examination. The Veteran stated that he developed chest pain and difficulty breathing while stationed in Iraq in 2005 after a drive shaft dropped on his chest. He indicated that he has been having problems since then. He reported occasional cough and shortness of breath with activities. He was asthmatic and reported that he smoked one pack of cigarettes per day. Physical examination revealed the lungs to be clear to auscultation. There were no rales, rhonchi, or wheezing. There was no kyphoscoliosis or pectus excavatum that interfered with breathing. S1 and S2 were normal with no murmurs. There was no edema of the bilateral lower extremities. Peripheral arterial pulsations were intact, bilaterally. A September 2010 chest x-ray was normal. The diagnosis was asthma. The examiner opined that it was "less likely than not" that the Veteran's asthma was caused by his in-service chest injury and that it would "be pure speculation" to state whether the asthma was related to possible dust or chemical exposure in Iraq. In a March 2011 addendum, the VA examiner explained that musculoskeletal conditions have "no direct etiology related to [or] causing respiratory illnesses such as asthma." In January 2012, the Veteran underwent a new VA examination to determine the etiology of his asthma. The Veteran stated that, after his chest injury during service, he had chest pain and pain while breathing. He noted that, after three months, his symptoms were improved, but not gone, and they remained at that level for the remainder of his military service. He indicated that his breathing was impaired at that time, and he could not run 1/2 mile. He stated that he now finds it hard to breathe and exercise due primarily to dyspnea, rather than pain and that only when he pushes himself beyond the onset of dyspnea does pain recur. The Veteran described the dyspnea as not being present at rest, and occurring sporadically at night, mainly with heat and high humidity. He also noted dyspnea with exertion, intermittent cough, and wheezing in the same pattern as dyspnea. Physical examination revealed the lungs to be clear to percussion and auscultation. PFT's were completed, which showed normal spirometry with no change after bronchodilators and normal total lung capacity but increased residual volume. Diffusing capacity of the lung for carbon monoxide was at the very low end of the normal range. A chest x-ray revealed no significant change in the normal appearance of the lungs, heart, mediastinum, or bony thorax. After reviewing the Veteran's claims file, performing a physical examination, and conducting an interview, the VA examiner opined that it was very unlikely that the Veteran had a chronic respiratory disability due to cigarette smoking and that it is less likely than not that the Veteran's current asthma is related to any exposure to dust or other toxins in Iraq. With regard to the first opinion, the examiner explained that the relatively low amount of smoking that he had prior to military service (about 10 years), the absence of bullous disease on all chest x-rays, and the normalization of his spirometric values on his current PFT's suggested that he had asthma rather than COPD, and therefore, he did not have a smoking-related respiratory disease. With regard to the second opinion, the examiner first noted that the Veteran's respiratory condition was highly likely to be asthma, but indicated that it was less clear when the asthma actually started. The examiner indicated that the Veteran reported that his dyspnea started during military service and persisted since then, but the military records do not document any complaints of dyspnea, the initial evaluation in January 2006 did not mention dyspnea, and a March 2006 evaluation specifically stated that the Veteran did not have dyspnea, cough, or congestion. The medical records do not show complaints of dyspnea until June 2006, which was five to six months after military service. Based on this, the examiner concluded that it was less likely than not that the Veteran had asthma during service, and therefore it is less likely than not that the Veteran's current asthma is a continuation of a respiratory ailment that started during service. The examiner also opined that, with the delayed onset of the asthma after service discharge, it was not likely that his asthma was caused by exposure to dust or other toxins during service. The examiner explained that, usually when an asthma exacerbation occurs from some sort of exposure, there is a relatively short time (a few days at most) between the exposure to the offending agent and the asthma exacerbation. He noted that the 1991 Persian Gulf War was marked by a large number of oil well fires which were linked to an increase in asthma, but that the Veteran was in the Persian Gulf at a much later date when those oil fires were not prevalent. The examiner was not aware of any associations between service in the Persian Gulf during the 2004 to 2005 time frame and asthma, and he was unaware of any specific information of increased levels of toxins or dust in the environment during that time period. After a thorough review of the evidence of record, the Board concludes that service connection for a respiratory disorder, to include asthma, is not warranted. A current diagnosis of asthma is of record. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). There is no evidence of asthma or any other respiratory disorder during service, but there is evidence that the Veteran suffered a chest injury when a drive shaft fell on him. The remaining evidence of record does not support a nexus between the Veteran's active duty service, to include an in-service chest injury or exposure to dust or other toxins, and his current asthma. The only two medical opinions of record addressing the etiology of the Veteran's asthma are the September 2010 VA examination and addendum and the January 2012 VA examination. The September 2010 VA examiner concluded that the Veteran's asthma was not caused by an in-service chest injury, because musculoskeletal conditions do not cause respiratory illnesses. The January 2012 VA examiner found that the Veteran's asthma was not related to in-service exposure to dust or other toxins because of the time period between any potential exposure during service and the onset of the Veteran's first reported dyspnea after service as well as the fact that he was not aware of any associations between service in the Persian Gulf in 2004 to 2005 and any increased levels of toxins or dust. Thus, the only medical evidence of record addressing the etiology of the Veteran's respiratory disorder indicates that his current respiratory disorder was not caused or aggravated by active duty service. The Board acknowledges the Veteran's lay statements that he had difficulty breathing during service and has had trouble breathing continuously since that time. However, the record reveals that the Veteran has provided inconsistent statements with regard to the onset of his dyspnea. In that regard, while the Veteran reported chest pain in his initial consultation with VA in January 2006, he did not mention any associated shortness of breath or difficulty breathing. Although the Veteran did note shortness of breath in a March 2006 VA nursing note, the VA treatment record from that day reveals that the Veteran specifically denied any symptoms associated with his chest pain, including cough, congestion, dyspnea, and hemoptysis. A June 2006 record indicates that he reported shortness of breath starting during active duty service. During a December 2009 hearing before the Board, the Veteran stated that he had symptoms of difficulty breathing after the in-service drive shaft injury and was found to have asthma in 2006, he did not contend that he has had symptoms of difficulty breathing continuously since service discharge. Accordingly, although the Veteran provided lay statements that he had difficulty breathing continuously since service discharge, and his statements are competent evidence of those symptoms, the Board does not find these statements to be credible in light of the inconsistent statements and the objective medical evidence which fails to show that the Veteran has reported symptoms of difficulty breathing continuously since service discharge. See Buchanan, 451 F.3d at 1336-37 (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). Thus, as there is no competent, credible, and probative lay or medical evidence linking the Veteran's current respiratory disorder, to include asthma, to his active duty service, service connection for a respiratory disorder, to include asthma, is not warranted. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). ORDER Service connection for a respiratory disorder, to include asthma, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs