Citation Nr: 1310643 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 07-07 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a respiratory disorder. 2. Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1975 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefits sought on appeal. The Veteran appealed that decision to the Board and the case was referred to the Board for appellate review. These matters were previously before the Board in November 2010, when the Board remanded the case for additional development of the medical evidence of record. As an initial matter, the Board notes that when its remand orders are not complied with, it errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the instant case, the Board remanded the Veteran's claims in order to provide him with VA examinations addressing the nature and etiology of his conditions. The Veteran was provided with VA examinations of his respiratory condition and back condition in December 2010. The Board finds that there has been effective compliance with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) The Board's November 2010 Remand also remanded claims for service connection for right ear hearing loss and residuals of a stab wound to the chest. While on remand, an October 2011 rating decision of the VA Appeals Management Center granted service connection for both of these claims. When an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In other words, a grant of service connection during the pendency of an appeal extinguishes the issue before the Board; therefore service connection for right ear hearing loss and residuals of a stab wound to the chest are no longer in appellate status before the Board. FINDINGS OF FACT 1. The competent evidence of record does not support a finding that a relationship exists between the Veteran's currently-diagnosed respiratory disorder and his military service. 2. The competent evidence of record does not support a finding that a relationship exists between the Veteran's currently-diagnosed back disorder and his military service. CONCLUSIONS OF LAW 1. The Veteran's respiratory disorder was not incurred or aggravated by the Veteran's active duty military service. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309 (2012). 2. The Veteran's back disorder was not incurred or aggravated by the Veteran's active duty military service, and arthritis may not be presumed to have been incurred therein. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VCAA also defines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the veteran of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the veteran is expected to provide. See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) (noting that a letter from VA to the veteran that described evidence potentially helpful to the veteran but that did not specify the party responsible for obtaining such evidence did not meet the standard set forth in the VCAA). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2002), 5106, 5107; 38 C.F.R. §§ 3.159, 3.326 (2012); Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Prior to the initial adjudication of the Veteran's claims, a letter dated May 2004 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter informed the Veteran of the information and evidence necessary to substantiate the claims, information and evidence that VA would seek to provide, and information and evidence that the Veteran was expected to provide. The letter also asked the Veteran to identify evidence in support of his claim. The letter did not address the rating criteria and effective date provisions relevant to the Veteran's claim, nor was subsequent Dingess notice provided to the Veteran. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that such error is harmless because this decision denies service connection, and hence no rating or effective date will be assigned to the Veteran's claimed disabilities. As there is no indication that VA's failure 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, 20 Vet. App. 537 (2006); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board further notes that the Veteran's representative has not alleged that the Veteran has received inadequate VCAA notice. There is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case; therefore no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (finding that VCAA notice is not required where there is no reasonable possibility that additional development will aid the veteran). The Veteran was provided with VA examinations of his respiratory condition and back condition in December 2010. Upon review of these examination reports, the Board observes that the examiners reviewed the Veteran's claim file, past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The examination reports are therefore adequate for the purpose of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran declined the opportunity to present testimony before a Veterans Law Judge. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Presumption of Soundness There is some suggestion in the medical evidence of record that the Veteran's respiratory condition may have pre-existed service. The Board will therefore discuss the presumption of soundness with respect to this issue. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. See 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-03 (July 16, 2003). Only such conditions as are recorded in examination reports are to be considered as "noted." See 38 U.S.C.A. § 1132 (West 2002); 38 C.F.R. § 3.304(b) (2012). A history of pre-service existence of conditions recorded at the time of examination does not constitute a "notation" of such conditions. See 38 C.F.R. § 3.304(b)(1) (2012). Indeed, while a history of the pre-service existence of conditions recorded at the time of examination does not constitute a "notation" of such condition, such history is to be considered with all other material evidence when determining whether a condition pre-existed active duty service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Turning to whether the Veteran was in sound condition at service entrance, the Board observes that the Veteran did not self-report any respiratory problems at service entrance. For example, in his October 1975 enlistment examination ,the Veteran checked "no" to the questions whether he had ever coughed up blood, experienced ear, nose, or throat trouble, experienced chronic or frequent colds, experienced asthma, shortness of breath, or chronic cough. The Veteran's October 1975 Report of Medical Examination indicates that the Veteran had "normal" lungs and chest. Thus, upon review of the evidence of record, the presumption of soundness on induction attaches. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). The Board acknowledges that the Veteran has alleged at least once, for example in June 2007, that he had a history of asthma since he was a child. Despite this allegation, with no medical evidence of record demonstrating treatment for a lung condition before military service, the Board concludes that there is insufficient medical evidence indicating that a disability pre-existed the Veteran's period of service, and it finds that the presumption of soundness has not been rebutted. Service Connection With the Veteran presumed to be in sound condition at induction, the Board's analysis turns to whether the Veteran suffers from an acquired respiratory or back disorder as a result of active duty military service. See Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (indicating that, in cases in which the presumption of soundness cannot be rebutted, a claim for service connection based on aggravation is converted into a claim for service connection based on service incurrence); VAOPGCPREC 3-03 (July 16, 2003). The Veteran contends that he is entitled to service connection for a respiratory condition and a back condition. The Board will analyze both of these claims together because they involve a similar application of laws and regulations to facts. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disorder, 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) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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." For certain chronic diseases set forth in 38 C.F.R. § 3.309, a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (noting that a "continuity of symptomatology" as specified in 38 C.F.R. § 3.303(b) affords an alternative route to service connection only for specific chronic diseases). In the instant case, the Veteran's claimed respiratory condition is not among the chronic diseases set forth in 38 C.F.R. § 3.309, and therefore service connection cannot be established based on continuity of symptomatology for this condition. See Walker. With respect to the Veteran's claimed back condition, to the extent that this may represent a degenerative or arthritic process, arthritis is among the chronic diseases set forth in 38 C.F.R. § 3.309, and it therefore may be established based on a continuity of symptomatology. See Walker. With regard to the first Hickson element, medical evidence of a current disability, the December 2010 VA examination demonstrates that the Veteran suffers from chronic obstructive pulmonary disease (COPD), chronic bronchitis, and mild degenerative disc disease of the lumbar spine. The first Hickson element, medical evidence of a current disability, is met with respect to both of the Veteran's claims. With respect to the second Hickson element, in-service disease or injury, the Veteran was treated for flu-like symptoms several times in service; for example, in November 1975, the Veteran was treated for acute respiratory disease. In April 1978, the Veteran complained that he injured his back during physical training, and he was treated for an abrasion. Affording the Veteran the benefit of the doubt, the second Hickson element is met as to an in-service injury with respect to both of the Veteran's claims. Regarding the third Hickson element, medical evidence of nexus, the determination of the relationship, if any, between the Veteran's current disability and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Turning to the facts in the instant case, in May 2004, the Veteran complained of experiencing pain across his lower back. In September 2004, the Veteran complained of experiencing back pain for the previous two months. The Veteran indicated that he had otherwise experienced lower back pain "on and off" for the past six years. In March 2007, the Veteran stated that he injured his back six years ago when he was working in construction. The Veteran denied any specific injury to the back, but instead indicated that his back condition was the result of the accumulation of the heavy lifting and labor that he was performing. The Veteran received a VA examination of his back in December 2010. The examiner considered the Veteran's contentions that his low back pain started during service, and the Veteran's indication that no single injury caused the Veteran's back pain. Upon examination of the Veteran, review of the medical records, and consideration of the Veteran's current contentions, the examiner found that the Veteran had mild degenerative disc disease of the lumbar spine. The examiner noted, however, that the Veteran's service treatment records revealed no treatment for chronic back pain in service, and that the Veteran's symptoms started many years after service. Taking all of these facts into consideration, the examiner opined that the Veteran's back condition was less likely than not related to service. The Veteran received a VA examination of his respiratory condition in December 2010. The examiner reviewed the Veteran's claims file, including the Veteran's breathing problems in-service and his complaints of asthma-like symptoms. The examiner noted that the Veteran had smoked one pack of cigarettes daily for the past 30 years. The examiner considered the Veteran's statement that he experienced shortness of breath daily. Upon review of the Veteran's medical record, the examiner indicated that the Veteran had COPD with chronic bronchitis. In rendering this diagnosis, the examiner noted that the Veteran's last pulmonary function test did not reveal the sort of disease that one would expect to see in asthma. The examiner noted that the Veteran was not diagnosed with COPD during service, and he noted that the Veteran had smoked one pack of cigarettes daily for all of his adult life. The examiner noted that the most common cause of COPD is smoking. Taking all of these facts into consideration, the examiner opined that the Veteran's respiratory condition was less likely than not related to service. The Board has also considered the lay evidence of record. For example, in May 2005, a friend of the Veteran's stated that the Veteran's "health was in good condition until he went into the service"; other statements suggested broadly that the Veteran's back and breathing problems began after he returned from the service. To the extent that the Veteran believes that his back condition and respiratory condition are related to his military service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (that is, experiencing physical symptoms such as pain and shortness of breath). See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, VA provided the Veteran with examinations based on the competency of these observations. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, namely, the etiology of a back condition and a respiratory condition, the issue of causation of such medical conditions is a medical determination outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, although the Board has carefully considered the lay contentions of record both from the Veteran and from others suggesting that the Veteran's conditions are related to his military service, the Board ultimately affords the objective medical evidence of record, which fails to find a connection between the Veteran's conditions and his military service, with greater probative weight than these lay opinions. As noted above, pursuant to 38 C.F.R. § 3.309, the Board has also considered whether the Veteran has presented a continuity of symptomatology associated with his back symptoms, and it finds that he has not done so. There is no competent medical evidence indicating that the Veteran was treated for back pain until 2004, or approximately 26 years after separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Furthermore, at the time of his treatment for back pain in 2004, the Veteran stated that he had experienced back pain periodically for the last six years, or since approximately 1998 (or 20 years after separation from active duty service). In a March 2007 treatment record for back pain, the Veteran stated that he had first injured his back six years before the examination, or in approximately 2001. Thus, while the Board has considered the lay contentions of the Veteran and others that the Veteran experienced back problems after military service, the Board finds that the weight of the evidence, including the Veteran's own contention to VA care providers, does not support a finding of continuous symptoms since active duty. Thus, the medical nexus element of Hickson cannot be met via continuity of symptomatology with regard to the Veteran's claimed back condition. 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, however, is not applicable in this case because the preponderance of the evidence is against the claims. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the competent and probative evidence of record indicates that the Veteran's respiratory disorder and back disorder are not related to his military service. Accordingly, the third Hickson element, competent evidence of nexus, has not been satisfied. The benefit sought on appeal is accordingly denied. ORDER Service connection for a respiratory disorder is denied. Service connection for a back disorder is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs