Citation Nr: 1324844 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 07-28 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to October 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDING OF FACT A current respiratory disorder related to the Veteran's military service, including inservice treatment for pneumonia, is not shown by the evidence of record. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The RO's February 2006 and March 2006 letters advised the Veteran of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The March 2006 letter provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, the RO effectively satisfied the notice requirements with respect to the issue on appeal. The duty to assist the Veteran has also been satisfied. The RO has obtained all of the Veteran's available service treatment records, and obtained, or made all reasonable attempts to obtain, the Veteran's identified VA and private medical treatment records. In March 2013, the Veteran was provided with a VA examination for respiratory conditions. The March 2013 VA examination was performed by a physician who reviewed the Veteran's claims file, discussed with the Veteran his respiratory history, examined the Veteran, and included rationales for the conclusions reached. The Board finds this examination adequate for adjudication purposes. The Veteran has not claimed that this examination is inadequate. In April 2011 and February 2013, the Board remanded this matter directing the RO to obtain additional inservice treatment records; and then schedule the Veteran for an examination to ascertain the nature and etiology of any respiratory disorder found. The RO has since obtained additional records relating to the Veteran's inservice treatment for pneumonia, and scheduled the Veteran for a March 2013 VA examination for respiratory conditions. Accordingly, the directives of the Board's April 2011 and February 2013 remands have been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). The Veteran served on active duty in the Army from September 1960 to October 1962. His service treatment records reflect that he was hospitalized for treatment of pneumonia from September 19, 1960 to September 27, 1960. X-ray examination of the chest, performed on September 19, 1960, revealed findings that were negative for definite pneumonitis. The report also noted findings of slightly increased markings in the right base. A subsequent x-ray examination of the chest, performed on September 24, 1960, revealed normal findings. A hospitalization report noted that the Veteran was discharged with a final diagnosis of pneumonia. No follow up treatment was indicated. In September 1961, the Veteran was treated for complaints of chest pain. A September 1961 x-ray examination of the chest revealed no evidence of infiltration in the lung or fluid. The report listed a diagnosis of bronchitis. No follow up treatment was indicated. In September 1962, the Veteran underwent his separation examination. The September 1962 separation examination found normal lungs on both clinical examination and x-ray examination of the chest. On a medical history report completed at that time, the Veteran denied having any history of shortness of breath. In May 1998, the Veteran was admitted to the hospital with complaints of fever and diarrhea for the past two days. A consultation report, dated May 7, 1998, noted that the Veteran had a history of alcoholism and rheumatic fever in the past. It also noted that he had a history of smoking one to two packs of cigarettes per day for the past 40 years. The report indicated that the Veteran was being treated with intravenous antibiotics, and concluded with an impression of pneumonia, ethanol withdrawal, and doubt endocarditis, but must be ruled out. A computerized tomography scan (CT) of the thorax revealed no evidence of empyema, but dense consolidation and infiltrates in the right upper lobe and in the superior segment of the right lower lobe were found. The CT also revealed a small granuloma at the right lung base. A hospital discharge summary report noted that the Veteran remained hospitalized for 29 days. The discharge diagnoses were pneumococcal bacteremia, pneumococcal pneumonia, alcohol abuse, alcohol withdrawal, protein and calorie malnutrition, anemia, hyponatremia, hyperkalemia, delirium, oral thrush, and cholelithiasis. In July 1998, the Veteran underwent a fiberoptic bronchoscopy. The report concluded with a post operative diagnosis of persistent right upper lobe infiltrate; rule out carcinoma. An August 2000 VA treatment report noted that the Veteran had a history of smoking two packs of cigarettes per day for 40 years. In October 2007, the Veteran underwent a VA physical examination. The VA examiner noted that the Veteran's claims file was reviewed. The examination report noted the Veteran's history of having been treated for pneumonia during his military service in September 1960. It also noted that he reported receiving treatment for pneumonia in 1964, and had documented treatment for pneumonia in 1998. The report concluded with an impression of history of pneumonia while in service. In May 2011, a VA examination for respiratory disorders was conducted. This examination was conducted prior to the RO having located the Veteran's inservice treatment records relating to his treatment for pneumonia. Following a physical examination, the report concluded with a diagnosis of chronic obstructive pulmonary disorder (COPD). In March 2013, a VA examination for lung disabilities was conducted. The VA examiner noted that the Veteran's claims file and electronic medical file had been reviewed. The examination report included a detailed historical summary of the Veteran's inservice and post service treatment for respiratory conditions. Following a physical examination, the report concluded with diagnoses of COPD and interstitial fibrosis of the right lung. The examiner then opined that the Veteran's current respiratory disorder was "less likely as not" related to his military service. In support of this opinion, the VA examiner cited the lack of respiratory symptoms in the years immediately after he left military service, with the Veteran's history of respiratory symptoms first appearing after his most recent pneumonia in 1998. Based upon a longitudinal review of the record, the Board concludes that service connection is not warranted for a respiratory disorder. Although treated for pneumonia during service in September 1960, this condition is not shown to have resulted in a chronic respiratory disorder. The Veteran's September 1962 separation examination found normal lungs on both clinical examination and x-ray study of the chest. On a medical history report completed at that time, the Veteran denied having any history of shortness of breath. Following his discharge from the service, complaints of or treatment for a respiratory disorder is not shown until May 1998, over 35 years after his separation from the service. Moreover, the treatment records in 1998 cite to a recent onset of the Veteran's respiratory problems, and not a history of symptoms since his separation from service. Having considered the facts in this case, and following a physical examination of the Veteran, the VA examiner opined that the Veteran's current respiratory disorder was "less likely than not" related to his military service, to include his inservice treatment for pneumonia. There is no contrary medical opinion of record. Therefore, the Board concludes that the preponderance of the medical evidence establishes that the Veteran's current respiratory disorder is unrelated to his active service. Service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a), which does not include COPD or interstitial fibrosis of the right lung. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). No inservice treatment is shown for either COPD or interstitial fibrosis of the right lung. Finally, to the extent that the Veteran contends that service connection for a respiratory disorder is warranted based on a continuity of symptomatology since service, the Board finds that his contention is not supported by the evidence and is not credible. Although treated inservice for pneumonia, the Veteran denied having a history of shortness of breath on a medical history report completed pursuant to his separation examination in September 1962. Thereafter, the first post service treatment for or complaint of a respiratory disorder, shown in 1998, does not reference any long history of respiratory symptoms. To the contrary, the 1998 records reference only recent respiratory difficulties. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition); Shaw v. Principi, 3 Vet. App. 365 (1992) (finding the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). Although the Veteran contends that his current respiratory disorder is related to his military service, his lay opinion concerning this matter requires medical expertise and is of no probative value. Under these circumstances, the Board must conclude that service connection is not warranted for a respiratory disorder. In reaching this decision, the Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for a respiratory disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs