Citation Nr: 1307152 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 07-08 884 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a claimed sinus disorder. 2. Entitlement to service connection for a respiratory disorder, claimed as pneumonia and bronchitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from March 1954 to February 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2006 rating decision by the RO. In May 2009, the Veteran presented testimony before a Veterans Law Judge who has since retired. The transcript is of record. The Veteran accepted the offer of another hearing. However, in correspondence received in August 2010, the Veteran indicated that he no longer wished to appear for a hearing. The Veteran's claims were most recently remanded in July 2012 for further development. The case has since been returned to the Board for the purpose of appellate review. A review of the Virtual VA paperless claims processing system includes VA progress notes from 2010 to 2012. Other documents in the Virtual VA paperless claims processing system are either duplicative of the evidence of record or are not pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is not shown to have a chronic sinus disorder that is due to an event or incident of his period of active service. 2. The currently demonstrated respiratory disability manifested by chronic obstructive pulmonary disease, restrictive disease and bronchitis is shown as likely as not to be due to pathology that had its clinical onset during the Veteran's period of active service. CONCLUSIONS OF LAW 1. The Veteran does not have a sinus disability due to disease or injury that was incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. By extending the benefit of the doubt to the Veteran, his respiratory disability manifested by chronic obstructive pulmonary disease, restrictive disease and bronchitis is 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. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided pre-adjudication VCAA notice by letters dated in January 2006 and in March 2006. The Veteran was notified of the evidence needed to substantiate the claim of service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. The available service treatment records, VA medical records, private medical records, lay statements, and the Veteran's May 2008 Board hearing transcript have been associated with the record. The Veteran was provided with forms to help reconstruct his service treatment records in January 2006 along with his VCAA notice letter. In October 2006, the National Personnel Records Center (NPRC) certified that the Veteran's service treatment records were destroyed by fire and only one auxiliary medical record was being mailed. In August 2007, there was a documented formal finding of unavailability of service treatment records. The Veteran was afforded VA examinations in August 2012 for his respiratory and sinus disorders. Addendum opinions were provided in January 2013. The examinations are fully adequate as the examiners reviewed the Veteran's claims file and provided medical opinions with a supporting rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007). There also has been provided a medical opinion in support of the Veteran's claim. Thus, with respect to the Veteran's claims, there is no additional evidence which needs to be obtained. Governing Laws and Regulations A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Analysis As the NPRC has certified that the status of the Veteran's service treatment records is fire related in that they appear to have been destroyed by the fire at the storage facility, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt standard of proof. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (where service records are missing and presumed destroyed in a fire in 1973 at the Federal Records Center, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt standard of proof). The analysis has been undertaken with this heightened duty, but the legal standard for proving a claim of service connection does not change. See Russo v. Brown, 9 Vet. App. 46, 51 (1996) (citing O'Hare, the caselaw does not lower the standard for proving a claim of service connection). The analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. In this case, the Veteran contends that he suffers from sinus and respiratory disorders that are related to service. In May 2008, he testified that, during service, he started to have sinus problems right after being hospitalized for pneumonia and bronchitis for two weeks during basic training. He also reported having an operation for a deviated nasal septum in the 1960's. He testified that, since being hospitalized for pneumonia during service, he had respiratory problems, to include bronchitis every year. The available service treatment records show that, in April 1954, the Veteran was treated for pharyngitis, which was acute, due to an undetermined organism, and was treated and cured. The medical records first show treatment for a sinus disorder in March 2005, whereby the Veteran went to the VA Medical Center emergency room with a two week history of nasal congestion, runny nose and cough. He was diagnosed with sinusitis. On VA examination in July 2009, the Veteran reported having chronic postnasal drip, described as mucus. He denied having nasal stuffiness or treatment for a sinus infection. He reported undergoing a septorhinoplasty in 1962. The examiner stated that he could not resolve the issue of whether the Veteran's deviated septum had an affect upon his upper and lower respiratory condition during service without resorting to speculation. On VA examination in August 2012, the examiner reviewed the claims folder and noted that the Veteran reported having an episode of pneumonia and pharyngitis during basic training and being hospitalized for two weeks in service and experiencing nasal symptoms and frequent respiratory infections since that time. His symptoms included runny nose and post nasal drip, worse in the spring and fall. The examiner indicated that the Veteran had sinusitis and rhinitis. A CT scan showed that frontal, maxillary and sphenoid sinuses, and ethmoid air cells were clear, as were the drainage pathways. The examiner concluded that the Veteran had chronic rhinitis, which was likely allergic, and noted that the symptoms and examination did not substantiate a diagnosis of chronic sinusitis. She was of the opinion that the rhinitis was not associated with the past diagnosis of pneumonia or pharyngitis and was less likely than not service related. In an addendum opinion in January 2013, the examiner reiterated her opinion that chronic rhinitis was not associated with the past diagnosis of pneumonia or pharyngitis. Her rationale was that, to the extent that the Veteran was hospitalized once on active duty for pneumonia, such an episode would not cause allergic rhinitis and that rhinitis was less likely than not related to service. The Board finds this examiner's opinion to be highly probative as it was based on a thorough review of the entire medical record and consideration of the Veteran's lay assertions. As for the claimed respiratory disorder, the medical records first showed findings of bronchitis in April 2000. The private pulmonary function tests in December 2002 were noted to shown minimal obstructive ventilatory impairment at the baseline and normal lung volumes. The private medical records in June 2000 showed mild chronic obstructive pulmonary disease and questionable asthma in December 2002. Subsequent records showed continued treatment for respiratory problems. The VA records in January 2003 and in January 2005 documented the presence of chronic obstructive pulmonary disease. In March 2005, the records showed that the Veteran had a past history of smoking a half to one pack of cigarettes per day for many years and stopping several years earlier (private medical records in January 2006 show the Veteran quit smoking in 1974). In March 2005, the Veteran was treated for bronchitis. A private chest x-ray study in September 2005 showed no pathology. On VA examination in July 2009, the examiner reviewed the claims folder, examined the Veteran and rendered diagnoses and chronic obstructive lung disease with mild restrictive lung disease and bronchitis. The examiner was of the opinion that these disorders were not caused by or the result of pneumonia in basic training. In June 2011, VA records showed that the Veteran's chronic obstructive pulmonary disease was improving. On VA examination in August 2012, the examiner indicated that the Veteran had chronic obstructive pulmonary disease. After reviewing the claims folder and examining the Veteran, the examiner concluded that the Veteran's reported pneumonia during service had less likely than not caused his chronic obstructive pulmonary disease. The examiner's rationale was that the Veteran had reported having one episode of pneumonia and that pneumonia in the 1950's did not cause his current chronic obstructive pulmonary disease because he had a history of smoking cigarettes. Accompanying pulmonary function tests were noted to be normal. The Board finds this opinion to be significantly probative as the examiner carefully reviewed the Veteran's entire medical history, considered the Veteran's reported in-service hospitalization for pneumonia and commented with an appropriate rationale as to why the Veteran did not have a chronic respiratory disorder related to service. The VA examiner who provided a January 2013 addendum opinion reiterated the August 2012 VA examiner's opinion that the lung disease was less likely than not related to service because as a former smoker, one episode of pneumonia during service did not increase the likelihood of his developing chronic obstructive pulmonary disease later in life. In a letter in June 2008, a private doctor stated that the Veteran frequently had recurrent respiratory infections due to upper respiratory infections, sinusitis, bronchitis and a history of asthma. He noted that the Veteran had heavy bronchial mucous production suggestive of bronchiectasis and was of the opinion that all these symptoms "appear[ed] to have started and progressed from an episode of pneumonia for which the Veteran was hospitalized for two weeks while in basic training, indicating the possibly significant amount of respiratory damage at that time." As presented, a review of the record shows that there are medical opinions which are favorable and not favorable to the claims on appeal. With regard to medical opinions, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one opinion over another depending on factors such as reasoning employed and whether the examiner was informed of the relevant facts. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Considering the relative merits of the analytical findings and the details of the differing opinions, the Board finds the medical evidence to be in relative equipoise in showing that the current respiratory disability as likely as not was due to lung pathology that had its clinical onset during service. Under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a general matter, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau; lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology). The Board has considered the Veteran's lay statements and acknowledges that the Veteran is competent to give evidence about what he has experienced or observed. Layno v. Brown, 6 Vet. App. 465 (1994). In this regard the Veteran's statements that he has experienced continuing respiratory symptoms since the episode in service are found to be credible. The Veteran is not shown to have a sinus disorder that is included among the chronic diseases under 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a), therefore consideration of continuity of symptomatology under 38 C.F.R. § 3.303(b) is not applicable. See Walker v. Shinseki No. 2011-7184, 2013 WL 628429 (Fed. Cir. February 21, 2013). As for the respiratory disorder, the private examiner in June 2008 noted that the Veteran had symptoms of suggestive of bronchiectasis. Bronchiectasis is included among the chronic diseases under 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Thus, the Veteran's credible assertions serve to establish a continuity of symptomatology pertaining to ongoing chronic respiratory disability since service. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claims of service connection for a sinus disorder, the doctrine is not applicable. 38 U.S.C.A. § 5107(b). In resolving all reasonable doubt in the Veteran's favor, service connection for chronic respiratory disability is warranted. ORDER Service connection for a sinus disorder is denied. Service connection for a respiratory disability manifested by chronic obstructive pulmonary disease, restrictive disease and bronchitis is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs