Citation Nr: 1325411 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 10-06 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a respiratory disorder, to include obstructive airway disease and asthma, to include as due to in-service environmental hazards and toxic chemicals, and to include as due to an undiagnosed Persian Gulf War illness. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1982 to August 1984, and from October 1992 to August 1997. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from November 2008 and February 2009 rating decisions of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied the benefit sought on appeal. The Veteran then perfected a timely appeal of this issue. The Veteran's Virtual VA paperless claims file has been reviewed in preparing this decision, along with his paper claims file. FINDINGS OF FACT 1. The Veteran's symptoms of difficulty breathing and shortness of breath have been attributed to his currently diagnosed obstructive airway disease and asthma. 2. The Veteran's current respiratory disorder, to include obstructive airway disease and asthma, is not shown to be causally or etiologically related to his active military service, to include as due to in-service environmental hazards and toxic chemicals. CONCLUSION OF LAW Service connection for a respiratory disorder, to include obstructive airway disease and asthma, to include as due to in-service environmental hazards and toxic chemicals, and to include as due to an undiagnosed Persian Gulf War illness, is not established. 38 U.S.C.A. §§ 1101, 1110, 1113, 1117, 1118, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty-to-assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in July 2008 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided prior to the initial RO adjudication of his claim. Accordingly, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His STRs and post-service VA and private treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disorder currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran participated in a VA examination in November 2008, the results of which have been included in the claims file for review. The examination involved a review of the claims file, a thorough examination of the Veteran, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Service Connection The Veteran seeks service connection for a respiratory disorder, to include obstructive airway disease and asthma, and to include as due to an undiagnosed Persian Gulf War illness. To establish direct service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability resulting from an undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or, (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the VA Secretary determines meets the criteria for a medically unexplained chronic multi-symptom illness. 38 C.F.R. § 3.317(a)(2)(i). The term medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology are not considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period are considered chronic. The 6-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and, (13) menstrual disorders. 38 C.F.R. § 3.317(b). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. §§ 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. As noted above, the first element of service connection requires medical evidence of a current disorder. Here, a current diagnosis has been established. On VA examination in November 2008, the Veteran was diagnosed with asthma and severe obstructive airway disease based on pulmonary function tests (PFTs). Since filing his service connection claim in July 2008, the evidence of record does not establish that he has been diagnosed with any other respiratory diagnoses, to include bronchitis. Thus, based on his current diagnoses of asthma and obstructive airway disease, the Veteran has satisfied the first element of service connection. As stated above, the second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the Veteran's STRs do not document any respiratory problems at his initial military entrance examination or during his first period of active duty. The Veteran entered his second period of active duty in October 1992. His second military entrance examination in May 1992 did not document any respiratory problems. In June 1996, his STRs document that he was diagnosed with bronchitis and treated with medication. There are no further pertinent complaints of or treatment for a respiratory disorder in the STRs. His military separation examination did not document any respiratory problems. The first post-service relevant complaint of respiratory problems was in a private treatment record dated in February 2000, which diagnosed the Veteran with bronchitis. Again, the Veteran's active duty ended in 1997. This lengthy period without treatment for the disorder weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (holding that service incurrence may be rebutted by the absence of medical treatment of the claimed disorder for many years after the military discharge). As previously mentioned, the third element of service connection requires medical evidence of a nexus between the current disorder and the in-service disease or injury. Here, the only medical nexus opinion of record is negative. Specifically, on VA examination in November 2008, the VA examiner reviewed the Veteran's claims file, took a full history of the Veteran (to include his reports of dust exposure while stationed in Kuwait), and performed a physical examination of the Veteran. Following these actions, the VA examiner determined that the Veteran's current severe obstructive airway disease is not due to, caused by, or secondary to his military service. The examiner also found that it is less than a fifty percent probability that the Veteran's current asthma is due to his active military service. The examiner reasoned that the Veteran was treated for a single episode of bronchitis with antibiotics and Robitussin. The examiner stated that there is no indication that there was a chronic problem as a result of that single incident. The examiner indicated that there is also no evidence that the Veteran suffered from asthma during his active military service. The Veteran was never placed on inhalers until July 2007, following his active military service. Instead, the examiner found that it is just as likely as not that the severe obstructive airway disease is due to the Veteran's cigarette smoking history. As support for this conclusion, the examiner pointed to the Veteran's FEV1/FVC taken at the examination. The VA examiner clearly reviewed the STRs and other evidence in the claims folder. He provided an opinion that is supported by and consistent with the evidence of record. He provided an alternative theory to address the etiology of the current respiratory disorder - namely, cigarette smoking. There is no positive evidence to the contrary of this opinion in the claims file. In fact, a private treatment record dated in July 2008 supports the VA examiner's medical opinion. In the July 2008 outpatient treatment record, the private physician from the Health Partners found that the Veteran has a "history of what has been called asthma but may also be a component of [chronic obstructive pulmonary disease] COPD as he is a long time smoker." The VA and private treatment records do not provide contrary evidence. For all of these reasons, service connection is not warranted. Additionally, regarding an undiagnosed Persian Gulf illness, the Veteran asserts that he served on active duty in Kuwait in 1995. A Department of Defense Form 214 (DD-214) notes the Veteran's receipt of the Southwest Asia Service Medal, which is generally authorized for individuals who served in support of Operation Desert Shield, Desert Storm, Operation Iraqi Freedom, or Operation Enduring Freedom, in one or more of the following areas on or after August 2, 1990: the Persian Gulf, Red Sea, Gulf of Oman, Gulf of Aden, that portion of the Arabian Sea that lies north of 100 N latitude and west 680 E longitude, as well as the total land areas of Iraq, Kuwait, Saudi Arabia, Oman, Bahrain, Qatar, and the United Arab Emirates. Individuals serving in Israel, Egypt, Turkey, Syria, and Jordan (including the airspace and territorial waters) directly supporting combat operations from January 17, 1991, are also eligible for the Southwest Asia Service Medal. These latter countries technically do not fall under the "Southwest Asia theater of operations" as defined by 38 C.F.R. § 3.317. However, it appears that the RO has assumed that the Veteran had qualifying Persian Gulf service for purposes of VA benefits. Thus, for the purpose of this decision, the Board will assume that the Veteran had qualifying service in the Southwest Asia theater of operations as defined by 38 C.F.R. § 3.317. As such, the aforementioned Persian Gulf statutory and regulatory provisions are applicable in the instant case. 38 C.F.R. § 3.317(b). In this regard, the Veteran's complaints of difficulty breathing and shortness of breath have been attributed to his severe obstructive airway disease and asthma by VA and private physicians, i.e., to known (rather than unknown) clinical diagnoses, based on PFTs. Thus, there simply is no basis to grant service connection for breathing problems under the specifically alleged presumptive theory of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 because the record contains no objective evidence of breathing problems due to an undiagnosed illness or chronic multi-symptom illness. The observed breathing problems have been attributed to known, rather than unknown, clinical diagnoses. Id. Furthermore, the Board notes the Veteran's contentions of respiratory symptoms both during and since his active military service. However, the Veteran is not entitled to service connection for this claim based on continuity of symptomatology since his military discharge because he does not have a current chronic diagnosis, as stated under the laws and regulations. His current diagnoses of obstructive airway disease and asthma are not considered chronic diseases under the statute. Therefore, presumptive service connection, and service connection based on continuity of symptomatology, is not warranted for this claim. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a), 3.309(a) (2012); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013) (the theory of continuity of symptomatology can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). In reaching this decision, the Board has considered the Veteran's lay statements, and an Internet article, submitted in support of his claim. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Id. Although the Veteran is competent to report that his breathing problems began during his active military service, which resulted in his current obstructive airway disease and asthma, the Board must still weigh his lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In making this credibility determination, the Board does not find the Veteran's statements concerning the etiology of his respiratory disorder to be credible, since his STRs make no reference to asthma or obstructive airway disease. His STRs only contain one documentation of bronchitis in 1996. There is no evidence that the bronchitis did not resolve prior to the Veteran's discharge in August 1997, as no respiratory problems were documented on his military separation examination. Post-service, the first documentation of respiratory problems in the treatment records is not until February 2000, almost three years after his separation from the active duty. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); see also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). It is important to point out that the Board does not find that the Veteran's lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson, 581 F.3d at 1313, quoting Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the Veteran's statements lack credibility because they are inconsistent with the evidence of record, which fails to show the development of a respiratory disorder during his active military service, and until almost three years after his separation from the active duty in 1997. For the reasons set forth above, the Board finds that the Veteran's lay statements that his respiratory symptoms have been present since his active military service are not credible. Therefore, these statements do not warrant a grant of service connection or a determination that further development of the medical evidence is required. All other evidence of record, aside from the Veteran's statements in support of this current claim, is unfavorable to the claim for service connection for a respiratory disorder. In addition, as a layperson with no pertinent medical or scientific training, the Veteran is simply not competent to attribute any existing respiratory condition to in-service exposure to environmental hazards and toxic chemicals. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of entitlement to service connection for a respiratory disorder, to include obstructive airway disease and asthma, to include as due to in-service environmental hazards and toxic chemicals, and to include as due to an undiagnosed Persian Gulf War illness, is denied. ORDER The claim for service connection for a respiratory disorder, to include obstructive airway disease and asthma, to include as due to in-service environmental hazards and toxic chemicals, and to include as due to an undiagnosed Persian Gulf War illness, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs