Citation Nr: 1322923 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 08-14 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for an upper respiratory disability, to include asthma. 2. Entitlement to service connection for sores of the mouth and throat. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from August 1963 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. Thereafter, the Newark, New Jersey RO assumed jurisdiction. The Veteran provided testimony at a hearing conducted via videoconference before the undersigned Acting Veterans Law Judge in April 2009. The Veteran accepted such hearing in lieu of a hearing in person. A transcript of the hearing is of record. Following the hearing, the Board remanded this matter in May 2009. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. The issue of entitlement to service connection for sores of the throat and mouth is remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. A current upper respiratory disability, to include asthma, did not begin in service. 2. A current upper respiratory disability, to include asthma, is not etiologically related to service. CONCLUSION OF LAW An upper respiratory disability, to include asthma, was not incurred in service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 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. 2012); 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 Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). 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. The Board observes that, in March 2006 and July 2009 letters, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate the claim herein decided. The letters also informed him of the evidence that he was responsible for obtaining and the evidence VA would undertake to obtain on his behalf. The letters further informed him to submit relevant evidence in his possession. March 2006 and July 2009 letters also provided the Veteran with notice as to the disability rating and effective date elements of the claim. The Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, private treatment records, VA examination reports, and lay evidence, to include hearing testimony. No additional pertinent evidence has been identified by the claimant. As to any outstanding Social Security Administration (SSA) records, the Board notes that, in accordance with the May 2009 Board remand, an attempt was made to obtain treatment records that were used to award the Veteran Social Security Disability benefits. The SSA records were found to be unavailable and the Veteran was notified of this in a July 2009 letter. The Board further notes that, as it relates to the claim of service connection for an upper respiratory disability, pursuant to the May 2009 Board remand, the Veteran was afforded a VA examination in August 2009 to determine the nature and etiology of any upper respiratory disability. At the time of the examination, the examiner rendered opinions as to the relationship between the claimed disorders and the Veteran's period of service and provided rationale to support the opinions. As such, the Board finds that an additional VA examination is not warranted as there is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Veteran also appeared at a videoconference hearing before the undersigned Veterans Law Judge in April 2009 in support of his claim. At the time of the hearing, the Veterans Law Judge set forth the issues on appeal. Furthermore, information was obtained regarding the symptoms related to the Veteran's claimed 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. Moreover, following the hearing, the Veteran was afforded the opportunity to submit additional evidence and was scheduled for VA examinations. The Board finds compliance with the duties set forth in 38 C.F.R.§ 3.103(c)(2). The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative. As noted above, he also appeared at a videoconference hearing before the undersigned Veterans Law Judge in April 2009. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Service Connection 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; 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). An upper respiratory infection/upper respiratory disorder, to include asthma is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply to the non-chronic disease. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). A review of the Veteran's service treatment records reveals that he was hospitalized in September 1963 with a 102.8 fever and an upper respiratory infection. He was also found to have hypertrophied tonsils. A September 30, 1963 hospitalization entry report indicated that the Veteran had a small white lesion on the left tonsil and several lesions on the lip. The Veteran remained hospitalized for one week and improved. A final diagnosis of probable dermatitis herpetiform was rendered. The Veteran was seen in September 1965 complaining of having had a cold for two days. A diagnosis of nasopharyngitis was rendered. The Veteran was prescribed Actifed at that time. No further complaints or findings of upper respiratory infections/disorders were noted in service. At the time of the Veteran's August 1966 service separation examination, normal findings were reported for the lungs and chest. On his August 1966 service separation report of medical history, the Veteran checked the "no" boxes when asked if he had asthma; shortness of breath; pain or pressure in chest; chronic cough; or chronic or frequent colds. There is also no evidence of treatment for upper respiratory disorders or upper respiratory infections in the years immediately following service. Treatment records which have been associated with the claims folder reveal that the Veteran was seen and treated for asthma in 1998. In a September 1998 hospitalization report, the Veteran was noted to have a past medical history of asthma and had previously been admitted and intubated for an exacerbation in 1992. At his April 2009 hearing, the Veteran testified that he was hospitalized in service for sores on his throat which turned into viral and upper respiratory infections. The Veteran stated that he was treated throughout his period of service with inhalers for wheezing. He indicated that he was using an inhaler at the time of the hearing. The Veteran stated that that he went on Social Security Disability as a result of his asthma problems at around the age of 57. He reported that he had previously done construction work and that he had not been able to work for the past 16 or 17 years. As noted above, the Board remanded this matter in May 2009 for additional development, to include scheduling the Veteran for VA examinations to determine the nature and etiology of any present respiratory, lung, or breathing condition. At the time of an August 2009 VA respiratory examination, the Veteran gave a history of shortness of breath, cough, and expectoration. The examiner noted that the medical record, which dated back to 1998, showed that the Veteran had asthma. The examiner noted that the Veteran reported that he was hospitalized in 1963 and had shortness of breath, a fever, and a sore throat. He was treated with antibiotics and some inhalers. Spirometry performed at the time of the examination revealed a severe obstructive lung disorder. The examiner rendered a diagnosis of asthma. The examiner indicated that he had reviewed the claims folder and the service treatment records. He noted that the Veteran was hospitalized in 1963 as a result of an upper respiratory infection. He observed that there was no mention of asthma or any allergy in his service medical records. However, dated back to 1998, the Veteran was seen in VA and had been diagnosed as having asthma. The examiner noted that, according to the Veteran, after discharge, he had had several episodes of infection and asthma. However, his current asthma, which he developed later, was less likely than not the same infection he had in the military. In a November 2009 statement, the Veteran's former wife indicated that she had been married to the Veteran from 1969 to 1979 and during that time she remembered him using an inhaler that he had received from their physician to assist him with breathing. She noted that he experienced breathing problems quite regularly and had to visit a physician. In a November 2009 statement, M. R., the Veteran's sister, indicated that prior to entering the military, the Veteran had no respiratory problems. The Board has considered the statements and testimony from the Veteran and the statements submitted in his behalf by his sister and former wife. Each is competent to report observed symptoms because this requires only personal knowledge as it comes through his senses. The statement of the Veteran's former wife that the Veteran had used an inhaler sometime between 1969 and 1979, demonstrates use of an inhaler more than two years following service. This is not probative of onset of a respiratory disability in service. The statement from the Veteran's sister refers to condition prior to service, which is not at issue in this case. Moreover, the Board finds that the reported history of symptoms since active service, as related by the Veteran, is not accurate. In particular, on his August 1966 service separation report of medical history, the Veteran checked the "no" boxes when asked if he had asthma; shortness of breath; pain or pressure in chest; chronic cough; or chronic or frequent colds. This directly conflicts with the recent assertions that he experienced symptoms ever since service. In weighing the conflicting statements provided by an individual at various times, the point in time in which the statement was made is important because a recounting of an event which is closer to the time that event occurred is naturally less likely to be diluted by the shortcomings of human memory. Thus, the contemporaneousness of the statement of medical history at discharge is significant. Furthermore, because the Veteran was then seeking only medical evaluation, it seems likely that he would report events carefully and accurately. Statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. In contrast, when the Veteran thereafter presented his account, he was seeking VA benefits rather than medical treatment. The Board is of course cognizant of possible self interest which any veteran has in promoting a claim for monetary benefits. The Board may properly consider the personal interest a claimant has in his or her own case, but the Board is not free to ignore his assertion as to any matter upon which he is competent to offer an opinion. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). There is no question that the Veteran is competent to relate events as he remembers them. Thus, competency is not at issue with regard to recounting the events of service and since service. Rather, it is the accuracy of the recent accounts which the Board finds is lacking. Simply put, the report of medical history at separation from service is more convincing than the later statements made in support of a claim for monetary benefits. Also supportive of the Board's finding that the report of medical history is more persuasive than his recent account of symptoms since service, the report of medical history at service separation is consistent with the clinical findings recorded at the same time. While the Veteran was treated for an upper respiratory infection on one occasion in service in 1963, this episode was acute and transitory, as evidenced by the absence of any further treatment for upper respiratory infections in service and normal findings for the lungs and chest at the time of the Veteran's August 1966 service separation examination. As noted above, asthma is not a chronic disease listed under 38 C.F.R. § 3.309(a), therefore the presumption of service connection and the provisions regarding chronicity and continuity of symptomatology need not be addressed. See Walker, 708 F.3d 1331. Service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, none of the medical evidence attributes any current respiratory infection/upper respiratory disorder, to include asthma, to service. The August 2009 VA examiner, following a comprehensive review of the claims folder and a thorough examination of the Veteran, indicated that it was less likely than not that the Veteran's current asthma was related to his period of service. The examiner provided specific detail in support of his opinion, to include his citing to service treatment records and post-service treatment records. There was no indication that the VA examiner was not fully informed as to the Veteran's past medical history or that he misstated any relevant fact. Thus, the Board finds this opinion to be the most persuasive evidence regarding the etiology of the current asthma. There is no medical opinion that purports to relate asthma or any respiratory disability to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of asthma or a respiratory disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Based upon the above, the preponderance of the evidence is against the claim. For all these reasons, the Veteran's claim for entitlement to service connection for an upper respiratory infection/upper respiratory disorder, to include asthma, is denied. ORDER Service connection for an upper respiratory disability is denied. REMAND As it relates to the claim of service connection for sores of the mouth and throat, the Board notes that the Veteran was hospitalized in September 1963 with a 102.8 fever and an upper respiratory infection. A September 30, 1963 hospitalization entry indicated that the Veteran had a small white lesion on the left tonsil and several lesions on the lip. A diagnosis of probable dermatitis herpetiform was rendered. The August 2009 VA examiner rendered a diagnosis of recurrent aphthous ulcers of the mouth with no active lip, mouth, or throat disease. The examiner opined that the Veteran's recurrent aphthous ulcers, which were healed at the time of the examination, are less likely than not due to his military service; however, he did not address the relationship, if any, between the in-service dermatitis herpetiform and the recurrent aphthous ulcers of the mouth. This case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). A specific discussion of the likelihood of a relationship between the in-service dermatitis herpetiform and the current aphthous ulcers would be helpful in resolving the appeal as to this issue. Accordingly, the Board finds that a supplemental opinion should be obtained in order to address the nature and etiology of any recurrent aphthous ulcers of the mouth and their relationship, if any, to the in-service diagnosis of herpetiform dermatitis. Accordingly, the case is REMANDED for the following action: 1. Obtain a supplemental opinion from the examiner who conducted the August 2009 VA examination. If the examiner is not available, obtain an opinion from another medical professional. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims folder must be made available to and reviewed by the reviewer/examiner. The examiner is requested to render an opinion as to whether the Veteran's current mouth sores (previously diagnosed as recurrent aphthous ulcers of the mouth) are at least as likely as not related to the diagnosis of dermatitis herpetiform in service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale which explains the basis for the opinion. A discussion of the pertinent evidence, pertinent studies, and generally accepted medical principals is requested. 2. Review the claims file. If any development is incomplete, including if the examination report does not contain sufficient information to respond to the questions posed, take corrective action before readjudication. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After undertaking any other development deemed appropriate, the AMC/RO should readjudicate the claim of service connection for sores of the mouth and throat. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for future review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Lloyd Cramp Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs