Citation Nr: 1323060 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-09 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a respiratory disorder other than asthma, to include chronic pneumonia or residuals of a respiratory disorder treated in service. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION 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). The Veteran had active service from February 1951 to February 1953. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Portland, Oregon, Regional Office (RO) of the Department of Veterans Affairs (VA). April 2013, the Board granted service connection for asthma and Remanded the appeal for service connection for a respiratory disorder other than asthma. The Veteran requested a Travel Board hearing. The requested hearing was conducted by the undersigned Veterans Law Judge in September 2012. The Board notes that the Veteran submitted an additional statement in June 2013, after the most recent Supplemental Statement of the Case (SSOC) was issued. However, the additional statement includes no new evidence or information that requires review by the agency of original jurisdiction or waiver of the right to such review. The Veteran's request for advancement of his case on the docket, noted in the most recent submission, has already been granted. FINDING OF FACT Other than his service connected asthma (restrictive airway disease), the competent and credible evidence fails to establish that the Veteran has been diagnosed as having pneumonia, chronic pneumonia, or any other chronic respiratory disorder. CONCLUSION OF LAW Service connection for pneumonia, chronic pneumonia, or for a respiratory disorder other than asthma, is not authorized. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he has a current respiratory disorder other than asthma and that he has a chronic respiratory disorder due to chronic pneumonia in addition to respiratory disorder for which service connection has been granted. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in November 2008 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in March 2009. VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records have been associated with the claims files. The Veteran's VA clinical records are associated with the claims files and the virtual (electronic) file. The Veteran and his representative have not identified any additional relevant evidence. Medical examinations and opinions have been obtained. Additional VA examination was conducted in May 2013, following the Board's April 2013 Remand. The Board finds that the VA examinations/opinions obtained in this case are more than adequate, as they are predicated on a full reading of the private and VA medical records in the Veteran's claims file. They also consider all of the pertinent evidence of record when making pertinent findings as well as the Veteran's lay statements and provide rationale for the stated opinions. The examination and readjudication provides a full and complete response to the directives of the Board's 2013 Remand. Stegall v. West, 11 Vet. App. 268 (1998). Some discussion of the Veteran's personal hearing finally is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue on appeal was identified at the September 2012 Travel Board hearing. Information was elicited from the Veteran concerning the nature and etiology of his respiratory disorder. There was also discussion as to whether there was any additional evidence that had not already been obtained. As a direct result of this testimony as well as the evidence of record, an additional examination was requested. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). 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). Applicable Law Service connection is granted if the evidence establishes that coincident with his service, the Veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of his active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Pneumonia is not defined as a chronic disease for which service connection may be presumed. The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Analysis By a Board decision issued in April 2013, the Veteran was granted service connection for asthma, characterized for rating purposes as "a respiratory disorder, to include asthma and chronic pneumonia." The Veteran contends that he has a current respiratory disorder other than asthma, and contends that he has a chronic respiratory disorder which is due to chronic pneumonia and is separate and distinct from the respiratory disorder for which service connection has been granted. The Veteran has provided a history of spending "months" in a damp area (Korea), to include exposure to damp conditions in a foxhole. He states that he developed lung problems at that time, including as a persistent cough, and eventually reported to several medical units for treatment. He says that he was diagnosed as having pneumonia at that time, and that he developed a problem with chronic asthma shortly thereafter. Service treatment records document that the Veteran was seen for complaints of a "cold" in February 1952. The only other available service treatment records are his entrance and separation examination. Neither his entrance examination report nor his separation report indicates a diagnosis of any chronic lung disorder. The first available post-service medical evidence which documents that the Veteran was treated for asthma or other chronic respiratory problems is dated in 2005, some 50 years after the Veteran's service discharge. However, at that time, the Veteran indicated that he had a long history of asthma. Other records reference the Veteran providing a history of treatment for asthma since the early 1960s. On VA examination conducted in January 2009, the examiner concluded that the Veteran had been using medications to treat asthma for 20 years. In December 2012, a VHA reviewer concluded that it was as likely as not that the asthma for which the Veteran was being treated was incurred in or as a result of the Veteran's service. In a statement submitted in December 2012, the Veteran contended that he had recurrent pneumonia of the left lung, lower lobe, as a result of his service. In the decision that granted service connection for asthma, the Board Remanded for further development the Veteran's contention that he had chronic pneumonia, in addition to asthma. In May 2013, the Veteran was afforded VA examination. The examiner concluded that the Veteran had one respiratory disorder, best diagnosed as reactive airway disease. The examiner noted past diagnoses of asthma, bronchitis, and pneumonia. The examiner explained that the Veteran's current respiratory disorder was a reactive airways disease, which results from sensitivity of the airways to irritants or allergens, with the initial source of the increased airways sensitivity being inhaled irritants or cold air. In short, there is clear evidence that the Veteran has one respiratory disorder, reactive airways disease. It is also clear that the disability may be manifested by varying symptoms for which varying diagnoses have been assigned, including diagnoses of asthma and bronchitis, and the disorder has, at times, resulted in pneumonia. However, the Veteran does not currently manifest pneumonia, and no residual of chronic or recurrent pneumonia, other than the underlying relatives airways disease, were present on VA examination. The Veteran has been awarded service connection for the one respiratory disability which is currently manifested, and that disorder is characterized as asthma, to include residual's of pneumonia. A respiratory disorder that is separate and distinct from his service connected asthma (restrictive airway disease) has not been demonstrated. The law is clear. Service connection for pneumonia, or chronic pneumonia, or residuals thereof, is not authorized by law unless the claimed disorder is present. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Veteran does not manifest pneumonia, chronic pneumonia, or any other chronic respiratory disorder other than his already service connected asthma. Such has not been shown at any time during the appeal period or approximate thereto. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of the existence of a current disability is satisfied when the Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim); Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013) (when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Veteran contends that he has a current respiratory disorder other than asthma which results from chronic pneumonia. The VA opinion rendered in May 2013 makes it clear that the Veteran has one current respiratory disorder, reactive airways disease, which is a result of sensitivity to inhaled irritant and allergens. The Veteran has been granted service connection for one respiratory disorder, and service connection for more than one respiratory disorder is not authorized under these circumstances. As the examiner notes, the respiratory disorder which is currently measureable, with reductions in results on pulmonary function, and which requires use of ongoing medications, is reactive airways disease. The VA medical opinion does not rule out the possibility that the Veteran's current reactive airways disease is related to the Veteran's past diagnoses of pneumonias, nor does the opinion rule out the equal possibility that the Veteran's current reactive airways disease is related to the Veteran's past diagnoses of asthma and bronchitis. However, the opinion does demonstrate that the Veteran does not have a current respiratory disability due to pneumonia which is separable from a disability due to asthma or bronchitis. As such, the VA medical opinion is entirely unfavorable to a finding that the Veteran has current residuals of chronic pneumonia that are separate from the respiratory disorder for which service connection has already been granted. 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, respiratory disorders, including asthma and pneumonia, fall 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). Asthma (restrictive airway disease) is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that a pulmonary function tests, X-ray studies, and other specific findings is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report shortness of breath, coughing, and other respiratory symptoms, there is no indication that the Veteran is competent to differentiate these symptoms and assign varying diagnoses for these complaints. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating respiratory disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Given this unfavorable opinion, the Board finds that the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b). The Veteran has not manifested more than one respiratory disorder during the pendency of this claim, and the claim for service connection for more than one respiratory disorder must be denied. ORDER The appeal for service connection for pneumonia, chronic pneumonia, or residuals thereof, or for a respiratory disorder other than the service-connected respiratory disorder characterized as asthma, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs