Citation Nr: 1314009 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 10-00 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for upper respiratory infections and bronchitis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1986 to June 2007. This matter comes on appeal before the Board of Veterans' Appeals (Board) from October 2007 and February 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which, respectively and in pertinent part, denied service connection for bronchitis and upper respiratory infections. In the July 2008 notice of disagreement, the Veteran appealed service connection for upper respiratory infections, stating that this issue should be tied together with the claim for service connection for bronchitis. Because claimed upper respiratory infections, and bronchitis are manifested by similar symptoms, the Board recharacterized the issue on appeal in a November 2012 decision and remand, and has considered both of these claims together. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran testified at May 2012 Board personal hearing at a VA office in San Antonio, Texas (Travel Board). The hearing transcript has been associated with the claims file. In November 2012, the Board remanded the appeal for service connection for upper respiratory infections and bronchitis for a VA examination. This was accomplished, and the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. Upper respiratory infections and bronchitis treated in service were acute and subsided without residuals. 2. The Veteran does not have a currently diagnosed disability manifested by claimed upper respiratory infections and/or bronchitis. CONCLUSION OF LAW The criteria for service connection for upper respiratory infections and bronchitis are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a July 2007 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection on the merits, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The July 2007 VCAA notice letter included provisions for disability ratings and for the effective date of the claim. During the May 2012 Travel Board hearing, to assist the Veteran, the undersigned informed the Veteran of outstanding elements necessary to substantiate the claim for service connection, including the element of a current diagnosis, which he distinguished from documentation of a symptom or a problem, and suggested that the Veteran could obtain medical evidence with regard to both his current diagnosis and a medical nexus opinion relating the claimed disability to service. The Board finds that these actions fulfilled the duties under 38 C.F.R. § 3.103 (2012). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran was afforded a VA examination in November 2007 to address claimed upper respiratory infections and bronchitis. A medical nexus opinion was not provided in conjunction with this examination; however, the Board finds that there is sufficient competent medical evidence of record, including on the question of current disability, to decide the claim. A December 2012 VA compensation examination report reflects the Veteran does not have current disabilities for the claimed disorders. For this reason, a VA opinion is not necessary because the competent medical evidence that is of record demonstrates that the Veteran does not have a currently diagnosed disability of upper respiratory infection or bronchitis. 38 C.F.R. § 3.159(c)(4) (2012). There is no reasonable possibility that a VA opinion purporting to relate current claimed, but not actual, disability to service could aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board finds that that the RO has complied with the terms of the November 2012 remand order in obtaining a December 2012 VA examination. The claims file was reviewed in conjunction with the examination, and a comprehensive respiratory examination, which included a pulmonary function test and chest x-rays, was completed. The November 2012 remand order provides that the examiner should indicate if the Veteran has a current, chronic disability manifested by upper respiratory infections and/or bronchitis, and if so, to offer an opinion with regard to etiology. The December 2012 VA examiner stated that the Veteran's examination was normal without evidence of a current chronic disability manifested by upper respiratory infections and/or bronchitis. Thus, the Board finds that further medical opinion evidence is not necessary, and that the VA examination substantially complied with the terms of the November 2012 remand order. See Stegall, 11 Vet. App. at 270, (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, VA examinations, post-service private treatment records, and the Veteran's statements and testimony. The Veteran and his representative have not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, upper respiratory infections and bronchitis are not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal the Board must also 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). Competency of evidence differs from weight and credibility. Competency 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"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection Analysis The Veteran contends, in a December 2009 statement, that he was treated for upper respiratory infections and bronchitis on multiple of occasions in service. During a May 2012 Travel Board hearing, the Veteran reported that he suffered from sinusitis and bronchitis chronically. The Board notes that the Veteran is currently service connected for allergic rhinitis and sinusitis, and these issues are no longer a subject of the present appeal. After reviewing all the lay and medical evidence, including the Veteran's statements and testimony, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a currently diagnosed disability manifested by upper respiratory infections or bronchitis. The Board finds that the Veteran is competent to identify treatment for upper respiratory infections and bronchitis in service, and the Board finds that his statements in this regard have been credible. Service treatment records show that the Veteran was treated for upper respiratory infections approximately six times between 1987 and 2000. The Veteran was treated for bronchitis in 1986 and in 1996. On a January 2006 report of medical history, the Veteran identified a past history of asthma or problems with breathing, and a past medical history of bronchitis. While the Veteran was treated for upper respiratory infections and bronchitis in service, the Board finds that upper respiratory infections and episodes of bronchitis were acute and subsided without residuals. In that regard, a February 2007 retirement examination shows that the lungs were normal at separation and no respiratory complaints were indicated at that time. A May 2007 general medical examination and a November 2007 VA examination completed shortly after the Veteran's separation from service do not identify any upper respiratory disorders or bronchitis. A November 2007 VA examiner specifically stated that there was no diagnosed upper respiratory disorder, as there was no pathology to render a diagnosis. Additionally, a December 2012 VA examiner stated, based on a review of the service treatment records, that the Veteran had two episodes of bronchitis in service, treated with an antibiotic with resolution of symptoms. Based on a review of the record, the December 2012 VA examiner stated that each episode appears to have been a self-limited acute infection as there is no documentation of persistent bronchitis symptoms. For these reasons, the Board finds that upper respiratory infections and episodes of bronchitis treated in service were acute and were not persistent. The Board finds that the weight of the evidence demonstrates that the Veteran does not have a currently diagnosed disability manifested by upper respiratory infections or bronchitis. A May 2012 letter from Total Health Primary Care reflects treatment for bronchitis in January 2008, February 2008, and February 2012. An associated February 2012 treatment report reflects a diagnosis of acute bronchitis. In light of the more recent post-service treatment shown for bronchitis in 2008 and 2012, the Board requested a VA examination to help determine whether the Veteran had a current, chronic disability and, if so, whether it was related to claimed bronchitis and upper respiratory infections. The Veteran was afforded a VA respiratory examination in December 2012. The VA examiner reviewed the claims file, interviewed the Veteran, and discussed pertinent findings from the medical record. The examiner specifically noted that the Veteran was treated for two episodes of acute bronchitis in 2008 and one episode in 2012. The VA examiner also noted the Veteran's diagnosis of allergic rhinitis and frequent sinus infections. A physical examination, to include pulmonary function testing, was completed. Chest x-rays were stated to be normal. The VA examiner in December 2012 stated that the Veteran's physical examination was normal. The VA examiner reasoned that there was no ronchi, crackles, or other abnormalities of the lungs indicative of bronchitis, and the Veteran denied symptoms of cough, congestion, wheezing, shortness of breath, or other bronchitis symptoms. The VA examiner stated that there was no subjective or objective evidence of any upper respiration infection, disease, or condition. He stated that chronic bronchitis was defined clinically by a cough productive of sputum for most days, for at least three months over two consecutive years, and the Veteran denied having these protracted symptoms. The VA examiner stated, in summary, that the Veteran's medical history, physical examination, chest x-rays, and pulmonary function tests were all normal without evidence of a current chronic disability manifested by upper respiratory infections and/or bronchitis. The Board finds that the December 2012 VA examiner's assessment was based on a comprehensive respiratory examination, an accurate factual history including as obtained from a review of the claims file, a discussion of pertinent medical evidence of record, and reliance on his own expertise. See Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993) (holding "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches."). For these reasons, the Board finds that the December 2012 VA examination provides competent, credible, and probative evidence showing that the Veteran does not have a currently diagnosed disability manifested by upper respiratory infections or bronchitis. Insomuch as the Veteran asserts that he has suffered from bronchitis chronically, the Board finds that he is not competent to provide a diagnosis of chronic bronchitis absent medical evidence of such, and the Board finds that his lay assertions are of little probative value in light of the December 2012 VA examiner's assessment based on the Veteran's medical history, physical examination, chest x-rays, and pulmonary function tests. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). Absent competent, credible, and probative evidence showing that the Veteran has a current disability related to claimed upper respiratory infections and/or bronchitis, the Board finds that service connection is not warranted. Because the preponderance of the evidence is against the claim for service connection for upper respiratory infections and bronchitis, the claim must be denied, and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for upper respiratory infections and bronchitis is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs