Citation Nr: 1312464	
Decision Date: 04/15/13    Archive Date: 05/02/13

DOCKET NO. 09-01 546	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Roanoke, Virginia


THE ISSUE

Entitlement to service connection for a disability manifested by shortness of breath and a dry cough, claimed as scars on the lungs and variously diagnosed as including pulmonary hypertension.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

D. Bredehorst



INTRODUCTION

The Veteran served on active duty from September 1968 to June 1971 and he had subsequent service in the Army National Guard from February 1987 to July 2004.

In June and December 2011, the matter was remanded for additional development. In November 2012, the matter was again remanded pursuant to Clemons v. Shinseki, 23 Vet.App. 1 (2009) (observing that when determining the scope of a claim, the Board must consider the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim). Specifically, the RO through the Appeals Management Office (AMC) was instructed to contact the Veteran, solicit information and if appropriate undertake development of a new theory of entitlement and consider the claim on this basis. Given the Veteran's lack of response to the RO/AMC's efforts, the Board will decide the appeal. 

The Board has reviewed the contents of the Veteran's electronic ("Virtual VA") file and found additional medical evidence that is not in the claims file but that has been considered in the September 2012 supplemental statement of the case (SSOC).


FINDING OF FACT

1. There is no competent evidence to show that the Veteran has a diagnosis of a lung or respiratory disorder.

2. The Veteran did not identify or present any evidence in support of the alternate theory of entitlement involving service connection for pulmonary hypertension.

3. Pulmonary hypertension is a heart disorder that was not manifested until many years after service and there is no probative evidence that links the disability to the Veteran's military service.


CONCLUSION OF LAW

The criteria for a grant of service connection for a disability manifested by shortness of breath and a dry cough, claimed as scars on the lungs and variously diagnosed as including pulmonary hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDINGAND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 



Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant 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 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. 38 C.F.R. § 3.159(b)(1) (including as amended effective on May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)).

VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

A March 2008 pre-decisional letter informed the Veteran of the evidence and information necessary to substantiate his claims the information required of him to enable VA to obtain evidence, and the assistance that VA would provide. He was also given notice of disability ratings and the effective dates of awards.

VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). The Veteran's service treatment records are not associated with his claims file and despite efforts to locate them or obtain copies from the Veteran VA's efforts have been unsuccessful. A formal finding was made in March 2010 that states the Veteran's service treatment records for his period of active duty from September 1968 to June 1971 are unavailable and it documents the action taken to secure these records. Thus, any further attempts to obtain the records would be futile. 

VA has obtained all pertinent/identified records that could be obtained. All evidence constructively of record has been secured. Repeated efforts to obtain 1971 treatment records from a Salem VA Medical Center (VAMC) were unsuccessful - in April 2012, the facility reported that it had no records pertaining to the Veteran as claimed. A June 2012 formal finding is of record that documents action taken to secure these records. Furthermore, an August 2012 record indicates that an employee of the Salem VAMC spoke to the Veteran and was informed by him that he was not seen at that facility for treatment. Instead, he indicated that his separation examination was conducted there. The VAMC employee stated that those records are not maintained at their facility and indicated that they would be with his claims file or military records.

The Veteran was also provided a VA examination in May 2012. The examination was adequate because it was thorough and provided necessary information to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Although the claim was thereafter remanded in November 2012 for additional development, the Veteran did not provide any of the requested information, therefore, no further examinations were necessary. The Board finds that all action and development directed in the November 2012 remand has been substantially completed. Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet. App. 97 (2008) (substantial compliance, not strict compliance, is required under Stegall). 

As there is no indication of any outstanding and pertinent evidence, the Board may proceed with the consideration of the appeal. 


Merits of the 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. 

Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 

Under the law, active service includes (1) active duty, (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a). In other words, service connection is available for injuries and/or diseases incurred during active duty or active duty for training but (except for the exceptions listed in this paragraph) only for injuries, and not diseases, sustained on inactive duty for training. Brooks v. Brown, 5 Vet. App. 484 (1994). 

Certain evidentiary presumptions--such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service--are provided by law to assist Veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309. However, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve Veteran status for purposes of that claim."). 

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 diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). To establish service connection based on continuity of symptomatology, the claimant must have one of the chronic diseases enumerated at 38 C.F.R. § 3.303(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

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). 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, 21 Vet. App. at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

      (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, supra., see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Specifically, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr (concerning varicose veins); Jandreau (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). However, laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2012).

After determining the competency and credibility of evidence, the Board must weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza, 7 Vet. App. at 511-512. 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert, supra. The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Veteran contends he has a disorder, which he identified as scars on the lungs, that is manifested by respiratory symptoms and is related to his active duty service. The Board finds that since a preponderance of the evidence is against the claim, service connection must be denied.

The Veteran's service treatment records from his active duty service are not available. Due to the loss of these records, VA's duty to explain its findings and conclusion is heightened. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). 

Despite the fact that the service treatment records from the Veteran's military service from September 1968 to June 1971 are not available, there is nothing in the record to suggest that the claimed disability was either diagnosed or manifested during that time. Subsequent to active duty, the Veteran served in the Army National Guard from February 1987 to July 2004 and while these records are associated with the claims file, there is no evidence of either a lung or heart disorder. The enlistment examination in February 1987 shows that his lungs, chest, and heart were normal. The associated medical history shows the Veteran had no complaints regarding asthma, shortness of breath, pain or pressure in the chest, chronic cough, or heart. Thus, 16 years after he separated from service, there no evidence of a diagnosis, complaints, or findings associated with the claimed disability. Periodic examinations and medical history reports in September 1990, June 1994, and February 1996 contain similar information. 

The Veteran reported having shortness of breath in November 1997 and July 2002 in the context of his medical history for cardiovascular risk assessments. These records also note that his shortness of breath occurred when he exercised hard and that he regularly ran 1 1/2 miles (in November 1997) and 5 miles (in July 2002). Furthermore, physical examinations in November 1997 and July 2002 showed that his lungs and heart were normal. In addition, ECGs in February 1998 and July 2002 were normal. The Veteran also completed a medical history report in July 2002 in which he provided positive responses to shortness of breath and pain or pressure in his chest. However, the examiner explained that the Veteran only had chest pain with GI symptoms and stress. However, other records indicate that the Veteran is a long-time, long-distance and marathon runner.

VA treatment records from January 2005 to September 2012, which include Virtual treatment records, are also silent for respiratory complaints, findings, or diagnosis. The Veteran did complain of a persistent cough in May 2011 and bronchitis was suspected, however, a review of his pulmonary system was normal. Furthermore, chest X-rays revealed no evidence of infiltrates or effusion. The only positive finding was with the pulmonary arteries, and it was noted that this may be related to pulmonary hypertension. A pulmonary consultation and PFTs were recommended, but the subsequent treatment records do not show any additional testing or pulmonary consultation.

The Veteran was afforded VA examinations of the heart and respiratory system in May 2012 that included a review of the claims file. The Veteran reported symptoms that included shortness of breath, left-sided chest pain, and a dry cough that worsened with running. The examiner indicated that the Veteran did not currently have nor had he ever had been diagnosed with a respiratory condition, to specifically include the disability claimed by the Veteran. The examiner opined that the claimed disability was less likely than not caused by service based on the absence of evidence of a respiratory disorder or pathology for a diagnosis. The examiner also noted that the record shows the Veteran was an avid runner who ran marathons and that he was required to meet strenuous physical fitness and testing standards in the National Guard. The heart examination noted that the Veteran had a diagnosis of pulmonary hypertension of unknown etiology. The Veteran reported having a history of shortness of breath, left-sided chest pain, and dry cough, but he was unable to identify the time period in which his symptoms began. The examiner noted that the disorder did not qualify within the generally accepted medical definition of ischemic heart disease. 

To the extent that the claimed disability includes respiratory complaints and was initially claimed as a lung disorder, there is no diagnosis of a lung disorder at any time during the appeal. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Hence, there is no basis to grant service connection for the claimed disability on the basis that the respiratory complaints are related to a lung or respiratory disorder.

As mentioned previously, a second theory of entitlement was introduced that must also be addressed. In Roebuck v. Nicholson, 20 Vet. App. 307 (2007), the Court held that separate theories in support of a claim for benefits for a particular disability do not equate to separate claims for benefits for that disability. Although there may be multiple theories or means of establishing entitlement to service connection, if the theories all pertain to the same benefit for the same disability, they constitute the same claim. See id; see also Robinson v. Mansfield, 21 Vet. App. 545 (2008). 

As noted, the claim was remanded in November 2012 to development the claim. At that point, the Veteran was diagnosed with pulmonary hypertension of unknown etiology. Therefore, to fully develop the claim, the Veteran was asked to identify his treatment providers for pulmonary hypertension and medical records associated with his employment with the Danville Sheriff's Department. The Veteran did not respond to the request for additional records and his representative's response was to the effect that no further evidence or information would be submitted. Due to his failure to cooperate with the development of the claim, no additional evidence was added to the record.

Since there is no competent (credible and probative) evidence of record to support this theory of entitlement, the claim is also denied on the basis of a heart disorder.

A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C.A. § 5107(a). While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (the Veteran cannot passively wait for help from VA).

Although the service treatment records are not available, post-service treatment record, including those from his 17 years of National Guard service, are of record. These records indicate that complaints of shortness of breath were noted in 1997 and a diagnosis of pulmonary hypertension was made in 2011. Although not dispositive, a lengthy period without complaint or treatment is considered probative evidence and weighs against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

It is also noteworthy that the shortness of breath noted in his National Guard records only occurred when the Veteran exercised hard and that he is shown to be a long-time, long distance marathon runner. There is no evidence to support a finding that this symptom is at least as likely related to pulmonary hypertension. Although the record contains a diagnosis of pulmonary hypertension, the etiology of the disorder is undetermined. Thus, there is no evidence of record that links the claimed disability to military service to include periods of ACDUTRA. 

Based on the foregoing, the preponderance of the evidence is against the claim, and service connection is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for a disability manifested by shortness of breath and a dry cough, claimed as scars on the lungs and variously diagnosed as including pulmonary hypertension is denied. 



____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs