Citation Nr: 1323937 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 09-26 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for asthma. ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active duty from June 2003 to December 2007. These claims come before the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In February 2012, the Board remanded these claims to the RO for additional action. In addition, it granted the Veteran entitlement to other claims on appeal, including service connection for a neck disability, residuals of muscle strain, and service connection for headaches, to include as secondary to a neck disability. FINDINGS OF FACT 1. A lumbar spine disability was not incurred in or aggravated by active service. 2. Asthma was not incurred in or aggravated by active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disability are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria for entitlement to service connection for asthma are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law as well as the controlling decisions of the appellate courts. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively cure this error by providing any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC). In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis. As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by offering a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). The RO provided the Veteran VCAA notice on these claims by letters dated October 2007, February 2012 and April 2012. The RO sent two of the letters after initially adjudicating the Veteran's claims. Those letters are therefore untimely. The RO cured this timing defect later, however, by readjudicating the claim in a May 2013 SSOC. Mayfield v. Nicholson, 499 F.3d at 1317. These letters satisfy the content requirements noted above. They informed the Veteran of the evidence needed to substantiate his claims and identified the type of evidence that would best do so. They included all necessary information on disability ratings and effective dates in the event service connection is granted. They identified the evidence the RO requested and/or received in support of the Veteran's claims and the evidence it was responsible for securing. They indicated that the RO will make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identifies its source(s), but that it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. The Board provided the Veteran further notice in its February 2012 remand by identifying evidence that was then outstanding and needed to be secured in support of this appeal. The RO also identified which element of a service connection claim was missing and indicated that these records might satisfy this element. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of these claims, and is not prejudiced by any technical notice deficiency along the way, including the previously mentioned untimely notices. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir., 2004). He does not assert that VA failed to comply with VCAA's notice provisions. The RO also satisfied its duty to assist the Veteran in the development of this claim by trying to secure and associate with the claims file all documents the Veteran identified as being pertinent to his claim, including service and post-service treatment records. The RO also afforded the Veteran a VA examination in support of his claims, during which an examiner discussed the Veteran's claimed lumbar spine disability and asthma. When VA affords a claimant a VA examination or obtains a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Unless the claimant challenges the adequacy of the examination or opinion, however, the Board may assume, and need not affirmatively establish, the adequacy of the examination report and the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still entitled to assume the competency of a VA examiner and the adequacy of a VA opinion without demonstrating why the medical examiner's report is competent and sufficiently informed); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). In this case, the Veteran does not assert that there are any other outstanding records that must be obtained in support of these claims or that the examination report is inadequate. The appeal is developed and ready for appellate review. Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources). Analysis When deciding claims, the Board is required to consider all potential bases of entitlement, including direct, presumptive and secondary. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). The Board is also required to address all arguments advanced by a claimant and/or theories under which entitlement to benefits sought may be awarded. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Veteran seeks service connection for a lumbar spine disability and asthma on a direct basis, as related to his active service. He does not claim that either of these conditions developed secondary to an undiagnosed illness that manifested during the Persian Gulf War. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Rather, in his initial application for compensation received in October 2007, he indicated that, during service, he was exposed to asbestos in his workplaces and environmental hazards in the Gulf War; however, he did not claim that either of the claimed disabilities resulted from that exposure. Rather, he described the hazards as burning wastes, raw sewerage, chemical agents and radiation, but indicated that, as of August 2007, he had no resulting disability. In written statements dated March and July 2009 and June 2010, the Veteran alleged that his lumbar spine condition resulted from a combat-related injury described as resulting from the weight of protective equipment he wore while serving in Iraq from January 2005 to January 2006. He asserted that his asthma developed in September 2004, was exercise induced and, despite using inhalers, has continued to manifest. The Veteran points out that there is documentation of record of in-service lumbar spine and exercise-induced asthma treatment. Considering these lay statements in conjunction with all other pertinent evidence in the claims file and applicable law and regulations, the Board finds that the preponderance of the evidence is against a grant of each of these claims. Although the Veteran received treatment for the claimed disabilities during service, as alleged, there is no documentation of record to support his assertions that he currently has these disabilities. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). To prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence); see also Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994) (in rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises or authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). In certain instances, however, a lay statement may be deemed competent and adequate to support a claim for service connection by substantiating the occurrence of lay-observable events or a disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence); Barr v. Nicholson, 21 Vet. App. 303 (2007) (layperson is competent to report disease with unique and readily identifiable features such as varicose veins); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). If a chronic disease is shown in service, subsequent manifestations of the same disease, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When certain chronic diseases are at issue, including arthritis or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptomatology. Evidence of continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be demonstrated by submitting evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology. Savage v. Brown, 10 Vet. App. 488, 495-97; see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be presumed for certain medical conditions, including arthritis, if it is shown that a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, the condition manifested to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). The Veteran served on active duty from June 2003 to December 2007. During this time period, he did indeed receive treatment for low back complaints and asthma. Specifically, in February and March 2004, he presented with shortness of breath when exercising. He reported no history of childhood asthma. The March 2004 examiner diagnosed "most likely exercise-inducted asthma/dry air reactive airway disease". He ordered pulmonary function tests and recommended that the Veteran use an inhaler prior to exercise. Two months later, in August 2004, the Veteran reported that he still had difficulty breathing on exertion and had not improved. The examiner diagnosed, in pertinent part, exertional shortness of breath and tobacco abuse and ordered additional testing. It does not appear, however, that the Veteran underwent the recommended testing. In August 2004, the Veteran also presented with lower back pain, which an examiner attributed to a low back muscle strain. That examiner recommended medication, bedrest, heat and stretching. During a dental evaluation conducted in December 2005, the Veteran reported a history of asthma. On separation examination conducted in June 2007, the Veteran reported that he had had recurrent back pain or any other back problem, asthma or breathing problems related to exercise, weather, pollens, etc., and shortness of breath and had been prescribed an inhaler. The examiner commented that the Veteran reported cold-induced asthma and the past use of bronchodilators. In July 2007, a Physical Evaluation Board found the Veteran unfit for active duty and recommended that he be separated from such duty due to cervicalgia (which has been service connected) and headaches, not a lumbar spine disability or asthma. Following discharge, beginning in December 2007, he underwent VA examinations and sought private treatment for various medical complaints. During VA examinations and treatment visits, however, no medical professional diagnosed the Veteran with a lumbar spine disability or asthma. During a VA examination conducted in May 2007, an examiner specifically tested for these disorders, including by using a spirometry, x-rays, and pulmonary function tests. All testing resulted in normal findings and the examiner found no diagnosis or pathology of a lumbar spine disability or asthma on examination. During the May 2007 VA examination, the Veteran reported that he had not been diagnosed with asthma by a physician despite having exhibited symptoms of that condition while training in desert conditions during active duty. He nonetheless claims he has the condition. As discussed above, the Veteran is competent to report lay-observable facts in support of his claim, including, for instance, that he has difficulty breathing and experiences pain in his back. But in this case, because he has no special training or expertise in medicine, he is not competent to diagnose a medical condition manifested by these symptoms. See Jandreau, 492 F.3d at 1372; Buchanan, 451 F.3d at 1336; Barr, 21 Vet. App. at 303; Davidson v. Shinseki, 581 F.3d at 1313. In the absence of competent and credible diagnoses of a lumbar spine disability and asthma, the Board finds that such disabilities were not incurred in or aggravated by active duty. Based on this finding, the Board concludes that the criteria for entitlement to service connection for these disabilities are not met. A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA. VA is responsible for considering all such evidence, lay and medical. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the evidence is not in relative equipoise. The benefit-of-the-doubt rule is therefore not applicable. ORDER Service connection for a lumbar spine disability is denied. Service connection for asthma is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs