Citation Nr: 1316937 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 07-21 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a respiratory disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active service from January 1981 to January 1985. 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 Indianapolis, Indiana. In May 2008, the Veteran presented testimony at a personal hearing conducted at the Detroit RO before a Decision Review Officer (DRO). A transcript of this hearing has been associated with the Veteran's claims file. This matter was previously before the Board in March 2011, at which time the Board remanded it for additional development. For the reasons discussed below, the Board finds that the RO substantially complied with the mandates of the March 2011 remand and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is 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 (2002). FINDING OF FACT There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has a respiratory disorder that is related to service. CONCLUSION OF LAW A respiratory disorder was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Veteran was provided notice required under VCAA in correspondence mailed in March 2005 and May 2005, both prior to the initial August 2005 rating decision. However, he was not provided with information that a disability rating and an effective date for the award of benefits would be assigned if service connection was awarded until correspondence dated in July 2007, after the initial rating decision. However, the claim was thereafter readjudicated in a February 2012 statement of the case. Therefore, there was no prejudcice to the Veteran in this regard. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of private treatment and VA examinations. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded VA examinations in July 2005, September 2008, and May 2011 in conjunction with the claim on appeal. The Board finds that the May 2011 examination is adequate to evaluate the Veteran's service-connection claim, as it includes an interview with the Veteran, a review of the record, a full physical examination, and an etiological opinion supported by rationale. Therefore, the Board finds that the examination report of record is adequate to adjudicate the Veteran's claim and no further examination is necessary. The Veteran was also provided an opportunity to set forth his contentions during a Decision Review Officer (DRO) hearing in May 2008. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the May 2008 hearing, the DRO indicated the issue on appeal. Also, information was solicited regarding the nature and history of the Veteran's respiratory disability. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been obtained. Therefore, the Board finds that the DRO complied with the requirements of Bryant. The case was remanded in March 2011 in order to provide the Veteran a VA examination to determine whether he had a current respiratory disability, to include chronic bronchiolitis and/or mixed type obstructive and restrictive lung disease, that was related to service, to include due to exposure to chemicals as an aircraft mechanic. The Veteran was afforded such an examination in May 2011. Therefore, the Board finds that there has been substantial compliance with the March 2011 remand orders. Substantial, rather than absolute or strict, remand compliance is the appropriate standard for determining remand compliance under Stegall v. West, 11 Vet. App. 268 (1998)); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic disabilities, such as bronchiectasis, if manifest to a compensable degree within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran contends that he is entitled to service connection for a respiratory disorder. Specifically, he argues that he has a respiratory disability as a result of daily exposure to heat, chemicals, exhaust, and fumes in confined spaces when he worked as a tactical aircraft maintenance specialist on Luke Air Force Base in Glendale, Arizona. The Veteran alleges that he went to sick call numerous times after being exposed to fumes and chemicals. For the reasons that follow, the Board finds that service connection is not warranted. Post-service treatment records have diagnosed the Veteran as having chronic bronchiolitis, moderate obstructive and pulmonary defect, and combined restrictive and obstructive lung disease. Thus, the Veteran has a current disability, satisfying the first element of service connection. Review of the Veteran's service treatment records does not reveal complaints of or treatment for a chronic respiratory disorder. In April 1982, the Veteran complained of a sore throat, sneezing, and congestion, and he was diagnosed as having nasopharyngitis and bronchitis. In August 1982, he complained of congestion and a sore throat for four days. In September 1982, he reported a persistent, nonproductive cough for two weeks. In October 1983, the Veteran complained of nausea and vomiting after inhaling engine cleaner fumes; however, he felt better by the time he sought treatment. In November 1983, he complained of chest congestion, head congestion, and a cough; he was diagnosed as having an upper respiratory infection. However, treatment for these in-service complaints was sporadic, and the symptoms appeared to be acute and transitory rather than chronic in nature. The Veteran has contended that during service he suffered from a lack of stamina due to breathing difficulty. The Veteran is competent to report symptoms such as fatigue and breathing difficulty. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In correspondence received in May 2008, the Veteran's spouse indicated that the Veteran would complain of heat and exposure to engine pollutants while in service, and also complain of chest pain, coughing, and lack of stamina due to breathing problems. In correspondence also received in May 2008, the Veteran's father indicated that the Veteran would complain about the heat and fumes to which he was exposed in service, and that they would irritate his breathing. Post-service treatment records reveal a diagnosis of bronchitis in February 2002. At that time, the Veteran reported chest tightness and tenderness when coughing, which had its onset the prior day. The Veteran was afforded a VA respiratory examination in July 2005, at which time the examiner diagnosed him as having a history of childhood asthma. His lungs were clear throughout the examination, with no wheezing noted. A pulmonary function test (PFT) performed in August 2005 revealed a moderate, obstructive defect with hyperinflation and borderline response to bronchodilators. Chest X-rays were normal. Finding that a diagnosis of "history of childhood asthma" was insufficient, the RO ordered a new VA examination be conducted. The Veteran was afforded another VA respiratory examination in September 2008, at which time he was diagnosed as having moderate obstructive and restrictive pulmonary defect. However, the examiner explained that a computer tomography (CT) scan of the thorax, which resulted in a essentially normal examination using both high-resolution technique and routine post-contrast technique, did not reveal the defect's etiology. With respect to the questions of whether the abnormalities found on the PFTs were sufficient to support a diagnosis of a chronic lung condition, and whether that lung condition could be associated with in-service inhalation/ingestion of toxic chemicals, the examiner indicated that these issues could not be resolved without resort to mere speculation. The examiner explained that review of the medical documentation and testing showed that the cause of the restrictive and obstructive defect was not certain, and that the CT scan did not provide evidence to suggest a cause for the PFT abnormalities. The examiner emphasized that obstructive defect found on a PFT was not a diagnosis, but rather a physical finding, as there were many conditions that could cause a restrictive and/or obstructive lung condition. The examiner explained that it would be possible that invasive testing such as bronchoscopy or pleural biopsy would be needed to confirm a diagnosis, but that these tests were beyond the scope of his clinic. An October 2009 private treatment record reflected that the Veteran had mixed type obstructive and restrictive lung disease. A December 2009 private treatment record indicated the Veteran had a surgical biopsy, showing mild cellular chronic bronchiolitis. In its March 2011 remand, the Board found that a new VA clinical opinion was necessary to determine whether the Veteran's current respiratory disability was related to his exposure to chemicals in service., in light of evidence indicating that the Veteran had a chronic respiratory disability as well as the September 2008 VA examiner basing his rationale on the fact that the Veteran did not have a specific diagnosis of a respiratory disability. As such, the Veteran was afforded his most recent VA respiratory examination in May 2011, at which time he was diagnosed as having chronic bronchiolitis as well as chronic restrictive and obstructive lung disease. However, the examiner opined that the Veteran's diagnosed respiratory disabilities were less likely as not caused by or a result of exposure to chemicals as an aircraft mechanic. In support of this conclusion, the examiner emphasized that the service treatment records did not support an ongoing problem with the Veteran's lungs while in service, and that even following service no obvious lung problems manifested until approximately 2005 when the Veteran had abnormal PFTs. The Veteran separated from service in 1985, and the examiner noted that there was a 20-year time period following service in which the Veteran could have acquired a lung disability. The Veteran's diagnosed bronchiolitis could be associated with a number of causes, including adenovirus, rhinovirus, influenza, varicella, cytomegalovirus, mycoplasma, legionella, rheumatoid arthritis, lupus, polymyositis, drug reactions, inhalational injuries, hypersensitivity pneumonitis, grain or mineral dusts, or cigarette smoke. The precise etiology of his bronchiolitis was unknown, however. In addition, the Veteran had findings of obstructive lung disease with a history of tobacco use and asthma, and it was possible that his obstructive lung disease could be explained by those entities. Although the precise etiology of the Veteran's restrictive lung disease was unknown, it could have been associated with a number of causes, to include obesity, kyphosis, and any number of interstitial lung diseases. As such, it was less likely as not that the Veteran's current lung conditions were caused by exposure to chemicals for 4 years during a period of military service which ended in 1985. The Veteran and his family have contended that his lung disabilities are related to service. Although a lay person may be competent to report the etiology of a disability, chronic bronchiolitis and chronic restrictive and obstructive lung disease are not the types of disorder which are susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds that the probative value of any such opinion is outweighed by that of the May 2011 VA examiner, who has education, training and experience in evaluating the etiology of these respiratory disabilities. There is no indication the Veteran, his spouse, or his father has any such training or expertise. The VA examiner reviewed the Veteran's claims file and opined that the his various respiratory disabilities were less likely as not incurred or caused by his in-service exposure to heat and chemicals. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). However, the Federal Circuit has held that § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran's diagnosed respiratory conditions have not been recognized as chronic under 38 C.F.R. § 3.309(a). Moreover, there is no credible evidence of continuity of symptomatology since service. As discussed above, the Veteran separated from service in January 1985; however, he was not diagnosed as having a diagnosis of bronchitis until February 2002, and PFTs did not reveal moderate, obstructive defect with hyperinflation until August 2005. In sum, the Board finds that the evidence is against the Veteran's claim for service connection for a respiratory disability. Although the Veteran is presumed to have been exposed to heat and chemicals consistent with his position as a tactical aircraft maintenance specialist in service, there is no indication that the Veteran had a chronic respiratory disability in service. Moreover, the May 2011 VA examiner found that the Veteran's currently-diagnosed respiratory disabilities were less likely as not incurred or caused by any in-service event. The VA examiner provided a thorough rationale for her opinion and the Board finds the opinion to be highly probative. Although the Veteran contends that his respiratory disabilities are related to service, he is not competent to provide an opinion as to the etiology of the conditions. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a respiratory disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs