Citation Nr: 1314784 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 08-07 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a disability manifested by upper respiratory infections (URIs). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran had active service from March 1956 to March 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the September 2006 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Houston, Texas. In that decision, the RO denied a claim for service connection for "upper respiratory conditions." In September 2010, the Veteran testified at a videoconference hearing conducted before the undersigned. A transcript of the testimony is in the file. This claim was remanded in a November 2010, August 2011, and December 2012; as explained further below, the Board finds there has been substantial compliance with the last Board remand. In August 2012, the RO granted a claim for service connection for allergic rhinitis; that claim is no longer on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT A disability manifested by manifested by URIs did not have its onset during active service. CONCLUSION OF LAW Service connection is not warranted for a disability manifested by URIs. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. In the present case, the Veteran was provided with 38 U.S.C.A. § 5103(a)-compliant notice in January and March 2006 communications; the latter provided notice as to the information and evidence necessary to substantiate an increased rating and the effective date to be assigned in the event his service-connection claim was successful. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was readjudicated several times; including in a March 2013 supplemental statement of the case, thereby curing any deficiency in the timing of notice. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, the Board finds that VA met its obligation to notify the Veteran with respect to his claim on appeal and no further notice is needed. With respect to VA's duty to assist the Veteran, the Board notes that pertinent records from all relevant sources identified by him and for which he authorized VA to request, were obtained by the RO or provided by the Veteran himself. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In this regard the record reflects that in January 2007 the Veteran stated he was receiving disability benefits from the Social Security Administration (SSA) due to his bilateral hearing loss and tinnitus disability. Although SSA records are not on file, and as the evidence of record does not indicate that respiratory problems were a consideration, the Board finds that any records for the Veteran in the possession of the SSA are not relevant, and need not be obtained. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The record also reflects that the Veteran was afforded VA examinations in connection with his appeal in December 2010 and September 2011. The Board has reviewed both examination reports, and finds that when read together, they are adequate for the purpose of adjudicating this appeal as they were based upon a review of the record and the Veteran's competent statements. As stated, the Board finds there has been substantial compliance with the December 2012 remand; private records requested by the Veteran are in the file. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Consequently, the Board now turns to the merits of the Veteran's claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing service connection generally requires (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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a) and a disability manifested by URIs is not listed. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). This avenue of entitlement is not available in this case. In adjudicating this case, the Board must discuss competency and credibility. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. 38 C.F.R. § 3.159(a)(2) (2012). Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Id. In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For example, in the Jandreau case, the Federal Circuit stated that a layperson can identify a simple condition like a broken leg, but not a form of cancer. 492 F.3d at 1377, Footnote 4. It is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited within). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Due consideration shall be given to the places, types, and circumstances of a veteran's service as shown by such veteran's service record, the official history of each organization in which a veteran served, a veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a)(1) (West 2002 and Supp. 2012). When the claim is in equipoise, the reasonable doubt rule is for application. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The Veteran contended in his January 2006 claim that he had an URI beginning in 1957 and was treated from 1989 to present. At the September 2010 Board hearing, the Veteran clarified that he was requesting service connection for breathing or respiratory problems (Transcript, p 4). He worked as an electrician and on the flight line in service (Transcript, p 5). His symptoms for allergies included coughing, shortness of breath and trouble breathing (Transcript, p 6). He had allergy symptoms since service (Transcript, p 7). The Veteran asserted he had a current diagnosis of silicosis which was due to exposure to silica dust (Transcript, p 10). He said that while on the flight line there was a lot of dust, sand and particles blowing around and he did not have any dust mask for protection. Id. The Veteran was diagnosed with this by X-ray at "a private company." (Transcript, p 11.) He said he would provide documentation (Transcript, p 12). There was no real treatment for silicosis but he was taking albuterol (Transcript, p 13). (In March 2008, he stated he was taking albuterol for allergic rhinitis.) He did some construction work after service, but his primary occupation for the past 44 years had been that of a barber (Transcript, p 14). He started to feel bad about twenty years ago with symptoms of coughing and breathing problems (Transcript, p 15). The Veteran's wife noted he had problems breathing and a hacking cough (Transcript, p 17). She has been married to the Veteran for 27 years (Transcript, p 18). Service treatment records show the Veteran was treated for colds (see January 1957 and November 1959), URIs (see 1957 and January 1960 records), a sore throat (February 1958 record) and pharyngitis (January 1959 record). However, the March 1960 report of medical examination showed a chest X-ray was negative and the lungs and chest were negative upon clinical evaluation. Similarly, the report of medical history showed the Veteran denied asthma, shortness of breath, pain or pressure in chest, and chronic cough. Post-service records do show occasional respiratory symptoms, but often the review of the respiratory system was normal. For example, in May 2003, a VA record showed the Veteran had an occasional cough with post-nasal drip, but it was nonproductive and only occasional with no shortness of breath. Atypical chest pain was noted in problem list during this time period. However, in October 2004, the Veteran presented to VA for a check up to renew his barber's license. He had no cough, no shortness of breath, and denied pulmonary symptoms. In June 2005, a VA record showed normal respiratory effort of the chest. At an August 2006 VA examination, he complained mostly of sinus problems although he did have shortness of breath. Some nasal obstruction was noted but the lungs were normal and he was diagnosed with seasonal allergies. Similarly, in December 2009, a VA record showed no shortness of breath or cough and a November 2012 record from Dr. R.H. showed the chest and lungs were totally normal. Additionally, the Veteran was service-connected for allergic rhinitis in August 2012; some symptoms of a URI might overlap with allergic rhinitis. Regarding silicosis, a January 2005 urology record noted that he stated he was recently diagnosed with pulmonary silicosis and follow up was needed before prostate surgery was to be performed. A VA pulmonary function test (PFT) was given the same month, noting a preliminary diagnosis of pulmonary silicosis. The PFT showed the predictions of forced expiratory volume in one second and forced vital capacity were over 100 percent predicted; the result was normal. An X-ray from January 2005 showed an impression of no acute cardiopulmonary disease. The Veteran went on to have his prostate surgery; a February 2007 VA record showed a review of systems was negative after the prostate surgery. Many other records support that the Veteran's respiratory system is normal (see February 2008 Dr. C.M. record). For example, in March and April 2008, his treating VA physician stated it sounded like he had a cold. However, later his chest was normal (see June 2008 VA record) and at other times he reported no cough or shortness of breath (see June 2009 VA record). The Veteran's respiratory system has been evaluated several times. One July 2009 VA computed tomography record of the chest showed he had small, sub-centimeter pulmonary nodules, one of which was calcified and the other with a benign morphology. No further follow up was required. A September 2010 VA traumatic brain injury (TBI) consultation showed that the respiratory system was normal and urology also showed normal respiratory effort. A December 2010 VA examination report noted that review of service treatment records showed that the Veteran had some symptoms that were upper respiratory in nature. The examiner stated that as a Board-certified otolaryngologist, these visits appear to be within what would be considered normal acute illnesses for an average person. There was no clear medical evidence to demonstrate chronicity of any upper respiratory condition. The lack of chronicity of any specific URI was also reflected in the service treatment records. He noted there were no respiratory disabilities on the problem list. As a result, there was no current diagnosis of an upper respiratory condition. As the Board found the December 2010 opinion did not adequately address prior findings of URIs and the claim was remanded for a new opinion in August 2011. Meanwhile, May 2011 records from Dr. R.H. showed the Veteran gave a history of a lung cancer diagnosis in 2005, despite the fact that such a diagnosis was not supported in any of his ongoing treatment records. He also reported he smoked two packs a month for twenty years. Initially, he complained of shortness of breath and wheezing and a review of systems noted these systems, but later in May a chest and lung examination was totally normal. In September 2011, a VA examination report shows that the claims file and medical records were reviewed. The Veteran asserted he had intermittent URIs with remissions since the 1950s. He had episodes that lasted seven to ten days. A chest X-ray showed no acute findings. The diagnosis was recurrent URIs with no symptoms or signs of pathology upon examination. The examiner noted the Veteran was diagnosed with colds in service upon review of the service treatment records. There was no documentation regarding treatment for a chronic respiratory condition. From listening to the Veteran, the examiner stated he had about two to three URIs a year. Citing to medical literature, the examiner stated that URIs are caused by viral infections and are self-limited; they do not result in chronic respiratory illness. The infections are due to exposure to viruses in daily life and are not specifically related to military service. There is no connection between individual episodes, each which may be caused by a different virus. Therefore, it was less likely than not that URIs the Veteran currently has are related to the URIs in service. The Board finds the Veteran is competent to report the symptoms of URIs because shortness of breath and coughing are within one's own personal experience. See 38 C.F.R. § 3.159(a)(2). His wife is also competent to report what she observed regarding the onset of his symptoms. Id. As for credibility, the Board notes the Veteran denied having respiratory symptoms at separation and now claims he has had URI symptoms intermittently since service. The Board finds him to be inconsistent in his report of symptoms when reviewing the entire file as well. He also reported a diagnosis of silicosis at the Board hearing and lung cancer in May 2011 while receiving private treatment; such assertions were not borne out via the comprehensive ongoing treatment records. His statements are assigned less weight, although the Board can see he has had some symptoms and URIs over time. Caluza, 7 Vet. App. at 511. The Veteran's wife appears to have been consistent on her observation of symptoms. To that extent, her statements are assigned some weight. Id. Ultimately, the Board finds that the diagnosis of a chronic respiratory disability requires clinical consideration by a medical expert because it is not a problem that is readily observable like a broken leg. See Jandreau, 492 F.3d at 1377, Footnote 4. The Board has considered all of the medical evidence and finds that a definitive diagnosis of a disability manifested by URIs is lacking, although the Veteran does have recurrent and separate, unrelated URIs. There is medical and lay evidence of in-service incurrence of colds and URIs in service. However, no nexus has been demonstrated between any particular URI or the collection of URIs and service; two elements of Shedden, 381 F.3d at 1167 have not been met. In coming to the determination that service connection is not warranted, the Board relies on the September 2011 VA examination report. This examination report shows the Veteran was interviewed, examined, and the claims file was thoroughly reviewed. The examiner cited to medical literature and provided clear reasons for the opinion given. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009). The Board finds the September 2011 opinion fully supported by all the evidence and assigns it great weight. The claim is not in equipoise, and the reasonable doubt rule is not for application. See, 38 U.S.C.A. §§ 1154(a), 5107(b); 38 C.F.R. § 3.102. (CONTINUED ON THE NEXT PAGE) ORDER Service connection for a disability manifested by upper respiratory infections is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs