Citation Nr: 1307549 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 08-24 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from July 2000 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board previously remanded this matter in August 2012 to obtain a VA examination. The development requested in the August 2012 remand has been completed to the extent possible, and no further action is necessary to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The weight of the competent, credible, and probative evidence does not demonstrate that a respiratory disorder is related to the Veteran's active military service. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.303(a), (d) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2007. The letter informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. The letter was provided prior to the August 2007 rating decision on appeal. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. The record indicates that the RO obtained all information relevant to the Veteran's claim. The available service treatment records have been obtained, as well as VA treatment records. The record contains a December 2011 Memorandum of the RO indicating that additional service treatment records, including the service separation examination, could not be located. The RO documented the efforts to obtain those records and determined that all efforts had been exhausted and further attempts would be futile. Moreover, the Veteran underwent an adequate and probative VA medical examination for his claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained relevant records, and has provided adequate examinations to the Veteran. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis of Claim Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, __ F.3d __, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). In this case, as is discussed fully below, there is no indication in the record that the claimed condition is bronchiectasis and therefore the provisions of 38 C.F.R. § 3.303(b) are not for application in this case. The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. Compensation may be paid to any Persian Gulf War veteran "suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses)." 38 U.S.C.A. § 1117. These may include, but are not limited to, muscle pain, joint pain, neurologic signs or symptoms, and symptoms involving the respiratory system. See 38 C.F.R. § 3.317(b). The chronic disability must have manifested either during active military, naval, or air service in the Southwest Asia theatre of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome (IBS); or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a)(2)(i). In order to prevail on the issue of service connection on the merits, generally, 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). 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 credibility 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"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). As lay person, the Veteran is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis of a specific disability. Furthermore, the question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA 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 the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran had active duty service from July 2000 to September 2006. Service treatment records show that the Veteran was seen twice in September 2000 for complaints of headache, nasal discharge, sore throat, post nasal drip, cough and shortness of breath. The assessment included upper respiratory infection. He was seen in December 2001 with complaints of a cough for one week and sore throat and headache. The assessment was upper respiratory infection, viral. In June 2002 he was seen again for complaints of upper respiratory symptoms including cough and shortness of breath and the assessment was viral upper respiratory infection. In July 2002 he was seen with a complaint of possible bronchitis and a cough for two weeks. Assessment was bronchiospasm and upper respiratory infection. A post-deployment health assessment dated in February 2003, shows that the Veteran indicated that his health was very good and he denied any medical problems. He indicated that he had not received any treatment for respiratory problems in the last 10 years. A post-deployment health assessment dated in December 2005 reflects that the Veteran denied chronic cough or difficulty breathing. The Veteran reported exposures to vehicle fumes, fuels, industrial pollution and sand and dust. He denied exposure to smoke for oil fire or from burning trash or feces. A copy of a separation examination is not of record. A December 2011 formal finding reflects that the RO determined that the separation examination is not available. The DD Form 214 reflects that the Veteran served in Iraq. The Veteran is competent to report exposure to asbestos, burning trash, exhaust fumes and jet fuel. Layno v. Brown, 6 Vet. App. 465 (1994). In light of the circumstances of the Veteran's service, the Board finds the Veteran credible with regard to his report of such exposures. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). The Veteran had a VA examination in June 2007. The examiner indicated that the claims file and VA treatment records were reviewed. The Veteran reported that he began having problems with his lungs in 2003 when he was in Iraq. He reported that, at that time, he noticed coughing, with associated greenish sputum and some shortness of breath. He reported that he was diagnosed with an upper respiratory infection and was treated with antibiotics. The Veteran reported that his condition had been the same since then. He reported that he had episodic lung problems 6-7 times a year that lasted for 4 to 5 days. The Veteran reported that this condition was not seasonal. The Veteran complained of cough during the flare-ups of his lung condition that usually was associated with some greenish sputum. The Veteran denied hemoptysis. The Veteran reported that he had shortness of breath during these episodes, but mainly related to exercise. Examination showed that the mouth oral mucosa were well hydrated with no exudates seen in the throat. Breath sounds were clear to auscultation bilaterally. There was no wheezing, rhonchi or rales heard. The examiner indicated that pulmonary function test with DLCO was done in February 2007 and was a normal pulmonary function test. It was noted that a February 2006 chest x-ray was normal. The VA examiner noted that a urine drug screen in June 2007 was positive for cannabinoids. The VA examiner diagnosed respiratory problems, most likely secondary to persistent marijuana smoking with secondary bronchial irritation. The Veteran had a VA examination in October 2012. The Veteran reported that his respiratory problems began in 2003 when he was in Iraq. He reported that the atmosphere was dusty, and there was decreased vision down to a yard. The Veteran reported that he endured dust storms every day and developed shortness of breath. He reported that he went to the medics tent, but no help was obtained. The Veteran reported that he was exposed to burning excrement with diesel fuel in 55 gallon drums that were cut in half. He reported that he was exposed to asbestos while sleeping in an aircraft hangar. A September 2007 chest x-ray indicated that the lungs were clear and pulmonary vasculature was normal. The VA examiner opined that the claimed pulmonary condition is less likely than not related to service. It was indicated that lung x-rays were normal and the values in the pulmonary function tests fail to be diagnostic for any lung disease. The VA examiner reasoned that, based upon pulmonary function tests and x-rays dated in September 2012, there is no reason to support the Veteran's claim since no chronic pulmonary disease could be diagnosed. The VA examiner explained that the Veteran might have seasonal allergies, and the use of cannabinoids, as noted in 2007, must have been the cause of his respiratory problems. Without proof of the existence of the disability being claimed, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). A current disability is demonstrated if the condition is shown at any time since submission of the current claim, even though it may have resolved. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this regard, the June 2007 VA examination reflects a diagnosis of respiratory problems. Thus, under McClain, the requirement that the Veteran have a current disability is satisfied. The Board finds that the weight of the competent and probative evidence is against the claim of service connection for a respiratory disorder. The service treatment records show that the Veteran was seen for complaints that includes cough and shortness of breath along with other symptoms. The examiner during service concluded that the Veteran had upper respiratory infections. No respiratory disorder was diagnosed. The Veteran asserts that he has a current respiratory disorder that had its onset in service. The evidence includes that opinions of VA examiner in June 2007 and June 2012. The June 2007 VA physician concluded that respiratory problems were most likely secondary to persistent marijuana smoking with secondary bronchial irritation. The October 2012 VA examiner indicated that pulmonary function tests and x-rays dated in September 2012 were normal and concluded that the Veteran does not have a current pulmonary disease. Both examiners indicated that the claims file was reviewed, discussed the in service history, conducted an examination of the Veteran and both discussed the pertinent findings and test results regarding the claimed condition. The Board affords the VA medical opinions great probative value. Furthermore, while the Veteran has asserted that a causal or etiological relationship between the claimed respiratory disorder and active service exists, as a lay person he lacks the medical training to provide a competent medical opinion regarding the cause or etiology of the claimed respiratory disorder. Therefore, while the Board has considered and weighed the Veteran's statements as to respiratory impairment and symptoms that he experienced in service and since service, of which he is competent to report, the Veteran's assertion of nexus of his currently diagnosed disability to service is afforded no probative value. See Jandreau, 492 F.3d 1372; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). For these reasons, as the preponderance of the evidence weighs against finding that the claimed respiratory disorder is causally or etiologically related to service, service connection must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board finds that the evidence does not support a finding that the Veteran's respiratory complaints are the result of an undiagnosed illness. During service, the Veteran's respiratory complaints were attributed to an upper respiratory infection. The June 2007 VA examination found that the respiratory problems were related to marijuana smoking with secondary bronchial irritation. Accordingly, there is no indication that the Veteran has an undiagnosed illness related to the claimed respiratory disorder. Thus, in summary, the probative and competent medical opinion evidence of record concluded that the claimed respiratory disorder is not related to service. The Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a respiratory disorder, and the claim must be denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER Service connection for a respiratory disorder is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs