Citation Nr: 1320167 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-33 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a respiratory disability, claimed as chronic bronchitis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to March 1992. The Veteran served with the Air Force Reserves from March 2000 to November 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Board remanded this matter in April 2011 and November 2011 for further development. After completing the requested actions to the extent possible, the Appeals Management Center (AMC) continued the denial of the claim as reflected in the February 2013 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. FINDINGS OF FACT The preponderance of the evidence shows that the Veteran's current chronic bronchitis is not etiologically related to active military service. CONCLUSION OF LAW The criteria for service connection for a respiratory disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the duty to notify was satisfied through a letter dated in April 2006, which preceded the rating action on appeal. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, reserve treatment records, reserve personnel records, VA treatment records, a VA examination dated in February 2012 and lay statements from the Veteran. The February 2012 VA examination report reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and evaluating the Veteran. The examiner discussed the relevant evidence of record. Following the above, the examiner provided a diagnosis and a nexus opinion, which appears to be based on the evidence of record and medical knowledge. Accordingly, the Board finds the February 2012 VA examination is adequate for adjudication purposes. In addition, as noted in the Introduction, this issue was previously remanded in April 2011 in order to have the RO review new evidence associated with the claims file since the July 2009 statement of the case. The RO reviewed all of the evidence of record and issued a supplemental statement of the case in July 2011. The Board remanded the claim again in November 2011 to verify the dates and type of service in the Air Force Reserves, obtain complete treatment records from the VA Pacific Islands Health Care System, complete treatment records from the Naval Hospital in Guam to include all pulmonary function tests and to schedule the Veteran for a VA examination. The Board observes that the record indicates that all of the Veteran's reserve treatment and personnel records available have been obtained and associated with the file. With respect to verifying the dates and types of reserve service, the reserve personnel records document the dates of entrance and discharge from the Air Force reserves. Although the record does not contain specific dates of active duty for training (ACDUTRA) during the reserves, the Board notes that the Veteran has not alleged that his chronic bronchitis began during a period of ACDUTRA or that he received treatment for chronic bronchitis during a period of ACDUTRA. Thus, the specific dates for ACDUTRA are not relevant to the Veteran's current claim. It also appears that the record contains the Veteran's complete treatment records from the U.S. Naval Hospital to include the results of a pulmonary function test and complete VA treatment records. The Veteran was provided with a VA examination in January 2012 that addresses the issue raised in the November 2011 remand and includes a supporting explanation. Accordingly, the Board finds that there has been substantial compliance with the April 2011 and November 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claim for Service Connection The Veteran contends that he has chronic bronchitis related to his active duty service. Specifically, he asserts that his chronic bronchitis is due to exposure to aircraft brake components and hazardous fluids to include jet fuel, hydraulic fluids, engine oil, methyl ethyl ketone (MEK), liquid cooling system fluid while working as an avionics specialist while on active duty. The Veteran also claims that he has had chronic bronchitis since active duty service. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted above, in order for the Veteran to be entitled to service connection for a respiratory disability, the medical evidence must show a diagnosis of the claimed disability. A VA treatment record dated in May 2011 shows that the Veteran was diagnosed with chronic bronchitis. Thus, the Veteran has a current diagnosis of the claimed disability. The Veteran's service treatment records from his period of active duty show that he was seen with complaints of respiratory problems on several occasions. Specifically, a January 1983 treatment record shows that the Veteran was treated for a viral upper respiratory infection. He was also treated for an upper respiratory infection in November 1983. The Veteran complained of chest congestion productive of green sputum and occasionally bloody streaks in December 1986 and he was diagnosed with a respiratory tract infection with bronchitis. He was treated for influenza in October 1987. The Veteran denied having a respiratory problem to include pain or pressure in his chest, chronic cough, shortness of breath or asthma in the Report of Medical History as part of his separation from active duty in January 1992. The separation examination dated in January 1992 reveals that the Veteran's lungs and chest were evaluated as normal. The Veteran's June 1999 reserve enlistment examination shows that the Veteran's lungs and chest were normal. The Veteran's lungs were also evaluated as normal in a November 2000 periodic examination. The Veteran has not indicated and the evidence does not show that he sought treatment for or received a diagnosis of chronic bronchitis during his Reserve service to include during a period of ACDUTRA. See June 1999, April 2000 and October 2001 Reports of Medical History (denied respiratory problems); a December 2008 Adult Screening and Immunization Form (denied currently having a respiratory illness and denied having lung disease or asthma); and a September 2009 Adult Screening and Immunization Documentation Form (denied having lung disease or asthma). The first evidence of complaints of or experiencing symptoms of chronic bronchitis after active duty military service was the Veteran's claim for benefits in April 2006, approximately fourteen years after discharge from active duty military service and the first medical evidence of a diagnosis of chronic bronchitis was in May 2011, approximately nineteen years after discharge from active duty service. The Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a Veteran's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board recognizes that the Veteran contends that he has had a continuity of symptomatology of chronic bronchitis since active duty military service. However, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in section 3.303(b) restricts itself to chronic diseases found in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1331. (3.303(b) "is only available to establish service connection for the specific chronic diseases listed in § 3.309(a)"). Chronic bronchitis is not a chronic disease under section 3.309(a) and therefore, the Veteran may not establish continuity of symptomatology under 38 C.F.R. § 3.303(b) in lieu of medical nexus. Based on the foregoing, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current chronic bronchitis and his active duty service. The record contains a negative VA medical opinion dated in February 2012. After obtaining an oral history of the disability from the Veteran, reviewing the claims file, and conducting a physical examination, the VA examiner determined that the Veteran's chronic bronchitis was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that a review of the claims file and service treatment record notes that during active duty service, the Veteran had self-limited viral infections and one documented episode of bronchitis. The viral infections and bronchitis that the Veteran had in service were self-limited illnesses without any residual sequelae. The examiner determined that there is no evidence that the Veteran had chronic bronchitis in service; it was not until his Gulf War examination in May 2011 that he was diagnosed with chronic bronchitis and treated with an albuterol inhaler. A review of the medical literature notes that chronic bronchitis is a type of chronic obstructive pulmonary disease where the inflamed bronchi produces a lot of mucus which leads to cough and difficulty getting air in and out of the lungs and cigarette smoking is the most common caused for this condition. The examiner, therefore, concluded that the Veteran's chronic bronchitis is more likely related to his history of smoking and less likely to other causes that he claims; the chronic bronchitis, as well, as the self-limited illnesses he suffered during active duty service. The Board finds that the February 2012 VA opinion is highly persuasive and probative as the examiner reviewed the record and provided a clear explanation for his opinion based on the evidence of record, his medical expertise and medical literature. The Board also finds it probative that the record does not contain any medical opinion indicating that the Veteran's chronic bronchitis is related to active military service. The Board acknowledges that the Veteran provided a lay opinion that his chronic bronchitis is related his active military service. While he is competent to report observable symptoms such as coughing, the diagnosis of chronic bronchitis, and the etiology thereof, requires medical expertise. This disorder is simply not the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Moreover, the Veteran's lay contentions of a causal relationship between a current respiratory disability and active service are outweighed by the more probative VA opinion that was provided in February 2012. In conclusion, the evidence of record shows the probative medical opinion provides evidence against the claim that his current chronic bronchitis is related to active military service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for chronic bronchitis and therefore, service connection for a respiratory disability is not warranted. ORDER Entitlement to service connection for a respiratory disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs