Citation Nr: 1323130 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-31 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a respiratory disorder, to include reactive airway disease and bronchial asthma exacerbation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from October 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee. In his August 2009 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran had requested that he be scheduled for a hearing before a Veterans Law Judge at the local regional office. However, in correspondence dated in October 2009, he withdrew his request for a hearing. This matter was previously before the Board in April 2011 at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, the agency of original jurisdiction substantially complied with the April 2011 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand 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). As noted in the April 2011 Board remand, the issue on appeal, initially filed as entitlement to service connection for a breathing disorder, has been characterized as entitlement to service connection for a respiratory disorder, to include reactive airway disease and bronchial asthma exacerbation, as reflected on the cover page. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); Kowalski v. Nicholson, 19 Vet. App. 171, 180 (2005), Sondel v. Brown, 6 Vet. App. 218, 220 (1994); Fanning v. Brown, 4 Vet. App. 225, 228-29 (1993). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT A respiratory disorder is not the result of a disease or injury in active service; and is not shown to be the result of exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, to include reactive airway disease and bronchial asthma exacerbation, are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in September 2008, June 2009, and May 2011 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service and VA medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. As noted above, this case was remanded in April 2011 in order to obtain outstanding VA treatment records and afford the Veteran a VA examination so as to assess the nature and etiology of his asserted respiratory disorder. Thereafter, additional VA treatment records dated through April 2011 were associated with the claims file, and the Veteran was afforded a VA examination in May 2011. Therefore, the Board finds that the agency of original jurisdiction substantially complied with the April 2011 remand directives such that no further action is necessary in this regard. See D'Aries, supra. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to herbicides during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. If a Veteran was exposed to an herbicide agent during active service, presumptive service connection for certain diseases will be established even though there is no record of such disease during service, provided that the disease is are manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). While respiratory cancers are among the diseases associated with exposure to herbicide agents, restrictive airway disease and bronchial asthma are not. Id. However, the absence of a disease on the presumptive list does not preclude a Veteran from otherwise proving that his disability resulted from exposure to Agent Orange or otherwise linking his disease to service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran contends that his respiratory condition incurred as a result of exposure to Agent Orange while serving in Vietnam. A review of his service personnel records confirms that he had Vietnam service from August 1967 to February 1968. As such, exposure to herbicide agents during his period of active service is conceded. A review of the Veteran's service treatment records reveals an April 1966 pre-induction report of medical examination which shows that clinical evaluation of the lungs and chest was normal at entrance into service. In an associated report of medical history, also dated in April 1966, the Veteran indicated that he had never had chronic or frequent colds, asthma, shortness of breath, pain or pressure in the chest, or chronic cough. A service treatment record dated in November 1966 shows that the Veteran was treated for a chest cold and a sore throat. In October 1967, he was treated for a viral upper respiratory infection. In December 1967, he was treated for bronchitis and viral pharyngitis. The Veteran's July 1968 separation report of medical examination shows that clinical evaluation of the lungs and chest was normal. X-rays of the chest revealed a density in the upper left lung field, otherwise normal findings. A follow-up X-ray one week later showed a healed calcified primary complex on the left, otherwise normal findings. In an associated report of medical history, dated in July 1968, the Veteran indicated that he had never had chronic or frequent colds, asthma, shortness of breath, pain or pressure in the chest, or chronic cough. VA outpatient treatment records dated from October 2007 to April 2011 show that he has been diagnosed and treated intermittently for reactive airway disease, bronchitis, bronchial asthma exacerbation, and hypoxic respiratory failure. He has reported shortness of breath with exercise, cough productive of white sputum, and chest congestion. He was noted to be previous smoker, but had quit smoking. Additionally, he was found to be hypoxic and placed on home oxygen. A VA examination report dated in May 2011 shows that the Veteran's claims file was reviewed by the examiner in conjunction with conducting the examination of the Veteran. The Veteran reported that he had been treated for bronchitis in 1967 while in Vietnam. He had no history of childhood asthma. He began smoking at about age 20 and continued to smoke for approximately 20 years, averaging one pack per day. He quit smoking in 2005. He developed shortness of breath and recurring cough around July 2007 and his condition has become progressively worse. The VA examiner reviewed the Veteran's service treatment records, citing October 1967 treatment for an upper respiratory infection that was viral in nature; December 1967 treatment for sore throat and pharyngitis with the lungs having been clear and an impression for bronchitis with viral pharyngitis that was treated conservatively; a July 1968 chest X-ray that was negative; and the July 1968 separation examination report wherein nose, allergy, and lung problems had been denied. The VA examiner also reviewed the post-service VA treatment records which showed that beginning in May 2003, the Veteran had not developed any chronic respiratory disorder until his period of hospitalization in February 2008, wherein he was treated for reactive airway disease, bronchial asthma exacerbation, and allergic rhinitis/sinusitis. Physical examination of the Veteran revealed no evidence of abnormal breath sounds, mild impairment between asthma attacks, diaphragm slightly limited, normal chest expansion, and no evidence of pulmonary restrictive disease. X-rays of the chest were without evidence of acute disease and pulmonary function tests were cited as essentially normal, other than mild decrease in diffusion capacity. The diagnosis was asthma and sinusitis. The examiner noted that there was no asthma indicated during periods of employment (10 years in Summers Hardware and Supply; 19 years selling life insurance; 4 years selling appliances; and 3 years selling cars). Following examination of the Veteran and review of the evidence of record, the VA examiner concluded that it was less likely as not that the current respiratory disease had its onset during active service or was related to any in-service disease, event, or injury, to include exposure to Agent Orange. The examiner explained that there had been only a single episode of bronchitis during service, that the Veteran had denied any further pulmonary problems until 2007, and that pulmonary function tests in 2003 had been normal. The examiner added that risk factors included allergic rhinitis, being overweight, and smoking. The examiner further explained that according to the Mayo Clinic, asthma could develop due to blood sibling with asthma; an allergic condition such as rhinitis; being overweight; smoking; exposure to second hand smoke; having a mother that smoked during pregnancy; environmental exposures such as exhaust fumes, pollution, farming chemicals, manufacturing, or by hairdressers; and low birth weight. Bronchitis could be acute or chronic in nature; was common; and could develop from a cold or other respiratory infection, would improve within a few days without residuals other than some temporary persistent coughing. Chronic bronchitis could also be due to smoking and required medical treatment would become a part of chronic obstructive pulmonary disease. The record clearly shows that the Veteran has a current respiratory disorder as reactive airway disease, bronchitis, and bronchial asthma are well documented. The Board recognizes that the Veteran was a Vietnam-era Veteran with service in Vietnam and as such, it is presumed that he was exposed to herbicide agents in service. In the case of such a Veteran, as noted above, service connection for certain specified diseases will be presumed if they are manifest to a compensable degree within specified periods after service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, respiratory disorders (other than respiratory cancers) to include restrictive airway disease, bronchitis, and bronchial asthma have not been recognized as conditions presumptively associated with exposure to herbicides in service listed as listed under 38 C.F.R. § 3.309(e). Accordingly, there is no basis for establishing service connection on a presumptive basis on the theory that such developed as a consequence of the Veteran's exposure to herbicides in service. Moreover, as to whether service connection for a respiratory disorder is warranted on a direct basis, the VA examiner in May 2011 specifically concluded that the claimed condition was less likely than not incurred in or caused an in-service injury, event, or illness; and was not caused by or result of the herbicide exposure. The May 2011 VA examiner's opinion is highly probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). This is the only medical opinion of record to address the etiology of the Veteran's respiratory disorder. The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board recognizes the Veteran's contentions that he has a respiratory disorder as a result of his active service. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. However, it would require medical or scientific expertise to say that the respiratory disorder is related to the Veteran's in-service upper respiratory infection, herbicide exposure, or any other asserted incident of service. These are not matters that are subject to lay observation. There is no indication that the Veteran possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. See Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 303. Given that the competent evidence against the claim, for the Board to conclude that the Veteran's respiratory disorder is manifested as a result of service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2012); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Overall, the evidence is not in relative equipoise, as there is a several year gap between the Veteran's discharge from service and the onset of a respiratory disorder. Moreover, the most probative evidence of record addressing the etiology and onset of the Veteran's respiratory disorder weighs against service incurrence or a relationship to a in-service herbicide exposure. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See generally Gilbert, 1 Vet. App. at 49; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The benefit sought on appeal is, therefore, denied. ORDER Service connection for a respiratory disorder, to include reactive airway disease and bronchial asthma exacerbation, is denied. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs