Citation Nr: 1308564 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 10-08 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a right diaphragm disability, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. By a June 2012 Board decision, the Veteran's claim was reopened and remanded for further evidentiary development. As will be discussed below, a review of the record reflects substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denial in a January 2013 supplemental statement of the case (SSOC). FINDING OF FACT A right diaphragm disability is not attributable to the Veteran's active military service, to include presumed herbicide exposure. CONCLUSION OF LAW The Veteran does not have a right diaphragm disability that is the result of disease or injury incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1116(f), 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 representative 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). The 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the claim on appeal, a pre-decisional notice letter dated in December 2008 complied with VA's duty to notify the Veteran with regard to this issue. The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, in the December 2008 letter, the RO informed the Veteran of its duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon this issue. Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), as well as VA and private treatment records in furtherance of his claim. The record indicates that the Veteran is receiving Social Security (SSA) disability benefits. The Board is aware that VA's duty to assist includes obtaining SSA records when appropriate. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (VA's duty to assist includes obtaining records from SSA and giving appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits). Pursuant to the June 2012 Board Remand, the AMC attempted to obtain the Veteran's SSA records. Nevertheless, these attempts were unsuccessful and the AMC was notified by the SSA that the Veteran's records were unavailable as they had been destroyed. The Veteran was notified of the response from the SSA in a letter dated June 2012. A Formal Finding of Unavailability was issued in July 2012. The Veteran was recently afforded a VA examination in June 2012 as to his claimed right diaphragm disability. The medical opinion reflects that the VA examiner reviewed the Veteran's past medical history, documented his medical conditions, and provided an opinion that appears to be consistent with the remainder of the evidence of record. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the June 2012 VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. Service connection connotes many factors but basically means that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisted such service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for the claimed disorder, generally, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish the elements of service connection 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(6)(iii) (2012). When a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, [see 38 C.F.R. § 3.309(e)], but also must determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 (West 2002) and 38 C.F.R. § 3.303(d) (2012). Here, the Veteran asserts entitlement to service connection for a right diaphragm disability, which he contends is due to his military service, including in-service herbicide exposure. See, e.g., the Veteran's statement dated September 2007. With respect to the claimed herbicide exposure, the Board notes that as the Veteran served in Vietnam, his exposure to Agent Orange is presumed. See 38 U.S.C.A. § 1116(f) (West 2002). To this end, as the Veteran's diagnosed right diaphragm disability is not listed among the Agent Orange-related diseases enumerated in 38 C.F.R. § 3.309(e), nexus may not be presumed as a matter of law. Notwithstanding the inapplicability of the Agent Orange regulations, the Board is obligated to fully consider the Veteran's claim. See Combee, supra; see also Brock v. Brown, 10 Vet. App. 155 (1997) (holding that the rationale employed in Combee also applies to claims based on exposure to Agent Orange). The Veteran has also asserted that his right diaphragm condition began during his military service. See the Veteran's claim dated June 2007. The Board notes that STRs, including the Veteran's July 1969 separation examination, are absent any complaint of or treatment for a right diaphragm condition to include related symptoms such as difficulty breathing. Post-service treatment records dated in January 2001 show that the Veteran was treated for complaints of shortness of breath. In a letter dated January 2001, Dr. M.F. indicated that the Veteran had a left upper lobe lesion that most likely represented an anaerobic abscess versus infiltrate. Private treatment records dated in February 2001 documented a history of "pulmonary abscess probably resulting from aspiration." An April 2001 private treatment record indicated that the Veteran was hospitalized with pneumonia in February 2001. An August 2001 chest x-ray revealed "[n]o evidence of acute cardiopulmonary disease." In March 2002, the Veteran was treated for complaints of shortness of breath for one week and it was further noted that a chest x-ray showed bibasilar atelectasis. The Veteran was diagnosed with bronchitis and "? occult rib fracture" at that time. See the private treatment record dated March 2002. The Veteran's history of smoking two to three packs per day was noted in private treatment records dated in July 2002. He was diagnosed with emphysema and chronic obstructive pulmonary disease (COPD) in January 2003, for which he was prescribed Albuterol and Flovent inhalers. A chest x-ray dated in January 2003 showed an elevation of the right hemidiaphragm. Dyspnea on exertion was noted in private treatment records dated in June 2003. The Veteran was afforded a VA examination in April 2003 that documented his complaints of shortness of breath with exertion of "unclear etiology." The examiner noted that the Veteran "did have a full pulmonary work-up and pulmonary etiology was eliminated...diagnosis of emphysema that the Veteran stated is incorrect. He does not have a diagnosis of emphysema. He is having a cardiac workup right now for this problem." A computerized tomography (CT) scan of the Veteran's chest conducted in March 2007 revealed "persistent elevation at the right base consistent with atelectasis and infiltrate. Fibrosis is present in the left lower lung field. Parenchymal lesion suggestive of tumor is not definitely identified." Chest fluoroscopy dated in May 2007 revealed "limited excursion of the right hemidiaphragm with inspiration and expiration . . . There is right hemidiaphragm paradoxical motion identified at the sniff test. There is right lower lung field atelectasis." A June 2007 private treatment record documented a diagnosis of right hemi-diaphragmatic paresis with decreased spriometry leading to chronic dyspnea on exertion. A pulmonary function test dated in April 2009 revealed a moderate restrictive defect. In a letter dated July 2007, Dr. L.B.P. reported that the Veteran's "paralyzed diaphragm is not due to cigarette smoking." In a letter dated in January 2008, Dr. W.S. reported that the Veteran had been his patient since October 1999 and "[h]e has had breathing difficulty since at least that time." In a statement dated in November 2008, Mr. K.W. stated that he became friends with the Veteran in 1972 and that the Veteran had exhibited trouble getting around as well as lack of stamina since he had known him. Pursuant to the Board remand, the Veteran was afforded a VA examination in June 2012 to address his claimed right diaphragm disability. After interviewing and examining the Veteran and reviewing the claims file, including the Veteran's pertinent treatment records, the examiner diagnosed him with right diaphragm paralysis. He concluded that the Veteran's right diaphragm paralysis "was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner explained that "[t]he paralyzed right diaphragm is not related to the Veteran's military service or Agent Orange exposure. This is a nerve paralysis problem, phrenic nerves (C3, 4, 5). In this case, there is not known etiology." Significantly, the Veteran has not produced a medical opinion to contradict the conclusion set forth by the June 2012 VA examiner concerning the issue of medical nexus. To this end, the Board notes that, in a statement to the RO dated in December 2008, the Veteran commented that his treating physician's, Drs. L.P. and W.S., had concluded that his right diaphragm problem had been present during service and ignored for as long as the Veteran smoked. A review of the Veteran's treatment records from both of these physicians does not reflect any statement from either doctor regarding a connection between the Veteran's diagnosed right diaphragm disability and his period of service. Further, the connection between what a physician said and a layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is too attentuated to constitute competent medical evidence of the type needed to substantiate this claim. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). As was explained in the VCAA section above, the Veteran has been afforded ample opportunity to present competent medical evidence in support of his right diaphragm disability claim. He has not done so. See 38 U.S.C.A. § 5107(a) (West 2002) (it is the claimant's responsibility to support a claim for VA benefits). Thus, the June 2012 VA examiner's opinion stands unchallenged as competent medical evidence on the crucial question of medical nexus. As indicated above, the Veteran has submitted his own statements to support his claim of service connection. As a lay person, the Veteran is competent to testify to observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability); see also Barr, supra; Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to provide medical conclusions as to whether a disability is due to his military service. See Buchanan v. Nicholson, 451 F.3d 1331-37 (Fed. Cir. 2006); see also Miller v. Derwinski, 3 Vet. App. 201, 204 (1992). Therefore, to the extent that the Veteran is now claiming that his right diaphragm disability is the result of his military service, a layperson without medical training, such as the Veteran, is not competent to comment on medical matters. See 38 C.F.R. § 3.159(a)(1) (2012). The Board further observes that the Veteran's contentions in support of service connection including continuing post-service symptomatology are contradicted by the findings of the June 2012 VA examiner who specifically considered the Veteran's lay assertions and any such inferences contained in the record in rendering the negative nexus opinion. The Board has considered the Veteran's assertions that he has had right diaphragm disability since his active service. Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board, however, finds that the reported history of continued symptoms dating from his period of active service from December 1967 to July 1969 is inconsistent with the clinical evidence of record, which shows an absence of complaint of or treatment for any respiratory disability for decades after this period of military service. More importantly, the June 2012 VA examiners' opinion, which was based in part on the Veteran's history, is more persuasive as to whether disability is attributable to military service than the Veteran's account of when it began. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the overall evidence, including the post-service medical evidence, the uncontradicted VA medical opinion, and the lay evidence presented by the Veteran, the Board finds that, for the reasons set forth above, the negative evidence is more persuasive. In conclusion, the preponderance of the evidence is against the claim that current right diaphragm disability is related to active military service. Thus, the benefit-of-the-doubt rule is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for right diaphragm disability is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs