Citation Nr: 1326384 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 06-36 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bronchial condition (also claimed as asthma), to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from April 1980 to April 1984, from December 1990 to September 1991, and from September 2001 to September 2004. She also had additional unverified service in the United States Air Force Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal following a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO, in pertinent part, declined to reopen the Veteran's previously denied service connection claim for a bronchial condition (also claimed as asthma). 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). In August 2007, the Board reopened the Veteran's claim for a bronchial condition but denied the underlying claim for service connection on the merits. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Per a February 2009 Joint Motion for Remand (JMR) and Court Order, the Board decision was remanded for compliance with instructions in the JMR. In October 2009, the Board remanded the claim for additional development, to include scheduling a VA examination. In June 2012 and again in March 2013, the Board remanded the Veteran's claim for additional development pertaining to a medical opinion request. Following development in April 2013, the RO issued a supplemental statement of case (SSOC) in June 2013. The Veteran's appeal has since been returned to the Board for further appellate review. Also, in an August 2010 statement, the Veteran identified that she was having problems finding work secondary to her service-connected multiple sclerosis. She noted that employers were hesitant to hire a person with multiple sclerosis even for a position as a receptionist. The Board is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. In this sense, the Board is not obligated to conduct an exercise in prognostication. See Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995); Brokowski v. Shinseki, 23 Vet. App. 79, 88 (2009). Furthermore, referring a claim or claims that the Veteran had no intention of raising places an undue burden on the RO. In the present case, the Board does not find the Veteran has necessarily raised a claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU). Nonetheless, the Veteran is encouraged to file a claim for a TDIU if she feels her service-connected disabilities, individually or as a whole, preclude her from substantially gainful employment. Finally, throughout the course of the appeal, Disabled American Veterans (DAV) has represented the Veteran before VA. See July 1984 VA Form 21-22. The Board notes that the Veteran had attorney representation during proceedings before the Court. However, the Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran submitted another VA Form 21-22 in January 2013 naming the DAV as her current representative. FINDINGS OF FACT 1. The medical evidence of record does not establish the existence of a bronchial condition (to include asthma) that is attributable to the Veteran's first two periods of active military service (April 1980 to April 1984 and December 1990 to September 1991). 2. There is clear and unmistakable evidence that the Veteran's bronchial condition (to include asthma) first manifested following the Veteran's second period of active military service (December 1990 to September 1991) but prior to her third period of active military service (September 2001 to September 2004); 3. There is clear and unmistakable evidence that the Veteran's bronchial condition (to include asthma) was not aggravated by her third period of active service. CONCLUSION OF LAW The Veteran's pre-existing bronchial condition (to include asthma), was clearly and unmistakably not aggravated during a period of active military service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2012); 38 C.F.R. §3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request a veteran provide any evidence in his or her possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) Through an October 2004 notice letter, the Veteran was notified of the information and evidence needed to substantiate her claim. The October 2004 notice letter also satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the Veteran was notified that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Thereafter, in July 2006, the RO provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Although the complete notice was not provided until after the RO initially adjudicated the Veteran's claim in November 2005, the claim was properly re-adjudicated in subsequent supplemental statements of the case (SSOCs). See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). As such, a remand of the claim for further notification is not necessary. The Board also finds that the October 2004 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding her claimed disability. Consequently, a remand of the claim on appeal for further notification of how to substantiate the claim is not necessary. There also no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran's service treatment records (STRs) are associated with the claims folders as are her pertinent VA and private treatment records. Significantly, the Veteran has not otherwise alleged that there are any outstanding medical records probative of her claim being decided that need to be obtained. Of note, attempts were made by the RO to obtain the Veteran's Social Security Administration (SSA) records associated with her apparent social security disability insurance (SSDI) award. In June 2011, the RO was provided with records associated with the Veteran's application for SSA benefits, but medical treatment and examination records were reported as being unavailable. The Board also notes that most recently in April 2013, a VA medical opinion was obtained pertaining to the Veteran's claim on appeal. The opinion contains sufficient evidence by which to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In discussing the etiology of the Veteran's claimed bronchial condition, the examiner considered the Veteran's complete medical history and cited to the pertinent medical evidence associated with the claims folders. Thus, the Board finds that the April 2013 medical opinion satisfies the duty to assist with respect to obtaining an adequate medical opinion. Therefore, there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim decided herein. II. Analysis Under applicable law, service connection is warranted where the evidence of record establishes 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 thereby. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be (1) medical evidence of a current disability; (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, or link, between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Every veteran who served in the active military, naval, or air service after December 31, 1946 is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). A history of pre-service existence of a condition(s) recorded at the time of examination does not constitute a notation of such a condition(s). Id; § 3.304(b)(1). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03 (July 16, 2003). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service-the second step necessary to rebut the presumption of soundness-a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a), (b) (2012). If the presumption of sound condition is rebutted, then the veteran is not entitled to service-connected benefits. Wagner, 370 F.3d at 1096. Also, under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744- 47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310 (2012)). The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's 1995 ruling in Allen, it was made clear in the comments to the regulation that the 2006 changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the revision amounts to a substantive change in the regulation. In the present case, given what appear to be substantive changes in 38 C.F.R. § 3.310, and because the Veteran's claim for service connection for a bronchial condition (to include asthma) was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the revision, the version which favors the Veteran. See 38 C.F.R. § 3.310 (2006). The Board has reviewed all evidence in the claims folders and in the Veteran's electronic claims file (Virtual VA), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, the Board is not required to discuss, in detail, every piece of evidence of record. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. The Veteran contends that she first experienced breathing problems during her first active duty period while she was stationed in Arizona. In particular, in a December 2002 Emerald Coast Allergy & Asthma treatment record, the Veteran was noted to report a history of increased asthma symptoms when she exercised, especially in cold air. Symptoms included both nasal and pulmonary. With respect to her first period of active service, a March 1980 service entrance examination and December 1983 service separation examination contained normal clinical evaluations of the lungs and chest. The Veteran was treated twice during this time period for various symptoms, to include a cough. She was diagnosed both times with a virus. Regarding her second period of active service, an October 1990 service entrance examination contained a normal clinical evaluation of the lungs and chest. The Veteran was diagnosed with bronchitis in April 1991 and June 1991. A June 1991 service separation examination contained a normal clinical evaluation of the lungs and chest. The Veteran denied any asthma or shortness of breath, although the clinician noted that she had coughed up blood during a "bout of bronchitis." Between 1992 and August 2001, the Veteran was diagnosed with small airways disease, mild asthma, and asthmatic bronchitis based on pulmonary function testing (PFT). Private treatment records during this period reflect the Veteran's asthma to be for the most part well controlled. During her third period of active service, the Veteran was diagnosed with asthma and bronchitis (to include bronchospastic cough) with normal PFTs and chest X-rays. In a December 2003 statement to the Air Force Medical Evaluation Board, the Veteran commented that her asthma was apparently in remission but that when she developed bronchitis and her allergies flared up she needed to use inhalers. In an October 2004 statement (not associated with the medical evaluation board), the Veteran commented that in 1997 a medical clinic (presumably a military-associated clinic) had know of her mild case of asthma, but it wasn't addressed by the military until two months after she had been called up to active duty. She also noted that she had been placed on profile for asthma in October 2001 and September 2002. A review of the claims folders does not reflect that the Veteran has submitted any medical opinion evidence in support of her claim for service connection for a bronchial condition. As noted in the Introduction, VA medical opinions were obtained by the Board in September 2011 and July 2012. The opinions, while noting that the Veteran's asthma was not caused or related to service or secondary to the Veteran's service-connected multiple sclerosis, were deemed incomplete. Most recently, in April 2013, an addendum VA medical opinion was obtained from the VA examiner who provided the July 2012 opinion. The Board notes that the underlying issue in this case, whether the Veteran's claimed condition is related to or aggravated by any of her periods of active military service, is a medical matter requiring medical evidence for its resolution. See e.g., Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board's review of the April 2013 VA medical opinion (reported in an April 2013 disability benefits questionnaire (DBQ)) documents the VA examiner's review of the Veteran's claims folders. The VA examiner also considered and cited to the Veteran's medical history with regard to the bronchial condition claimed. As for her opinion, the examiner opined that the Veteran's bronchial condition, which she diagnosed as asthmatic bronchitis, did not have its onset in the Veteran's first period of active service (April 1980 to April 1984) or was it etiologically related to the first period of service. The examiner explained that the Veteran's STRs during the first period of active service (to include a service separation medical examination) were silent for a bronchial disability and that any upper respiratory infection (URI) noted in the Veteran's STRs resolved without residuals. The examiner also commented that episodic URIs were not uncommon for the general population and were transient in nature. She concluded by opining that "the preponderance" (or majority) of medical evidence did not support episodic URI as a proximate cause of asthmatic bronchitis. With respect to a bronchial condition pre-existing the Veteran's second period of active service (December 1990 to September 1991), the examiner commented that there was no supporting medical documentation that any such condition pre-existed the second period of service. (The examiner, in the April 2013 DBQ, cited to and consider a February 2004 Medical Evaluation Board narrative summary in which a diagnosis of asthma was identified as having been made in 1986, but was noted as being refuted by normal PFTs and normal histamine challenge test.) The VA examiner also commented that a bronchial condition did not have its onset in the Veteran's second period of active service or was it etiologically related to the second period of active service. The examiner explained that the Veteran's STRs during the second period of active service were also silent for a bronchial disability and that two to three episodes of episodic bronchitis/URI noted in the Veteran's STRs was not uncommon for the general population. She concluded by opining that the preponderance (or majority) of medical evidence did not support episodic bronchitis or URI as a proximate cause of asthmatic bronchitis. Otherwise, the VA examiner did conclude that a bronchial condition pre-existed the Veteran's third period of active service (September 2001 to September 2004). The examiner explained that asthmatic bronchitis was "clearly diagnosed" in 1994-95, and the diagnosis was supported by PFTs dated in April 1994 and February 1995 which showed mild obstructive defect and small airway disease. The examiner also commented that while the Veteran's bronchial condition clearly and unmistakably pre-existed her third period of service, the bronchial condition (asthma or asthmatic bronchitis) was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The Board finds that the VA examiner's conclusion that a pre-existing bronchial condition was not aggravated by the Veteran's third period of active service is supported by the medical evidence of record cited to in the April 2013 opinion report (DBQ). In this regard, besides the noted PFTs in April 1994 and February 1995, the examiner considered a March 1995 fiber optic bronchoscopy which revealed hemoptysis secondary to slightly prominent superficial blood vessels. She also considered during this time (prior to the third period of active service) medical records which reflected findings of persistent asthma or asthmatic symptoms and the Veteran's use of medications and/or inhalers. In comparison, during the Veteran's third period of active service, the medical records generally document findings of mild to moderate persistent asthma, symptoms secondary to allergy triggers, bronchospastic cough, and normal PFTs. In particular, a January 2003 treatment record identified the Veteran's bronchial condition as being quiescent and essentially asymptomatic, as well as a PFT to be normal. The records also noted the Veteran's on again off again use of medications and/or inhalers to treat allergic rhinitis as well as asthmatic symptoms. The Board is mindful that in a November 2002 service treatment record, the Veteran was noted to report a history of a diagnosis of severe asthmatic attack along with gastroesophageal reflux disease (GERD) made in an medical emergency room. At that time she was treated with bronchial inhalers. She later recounted the incident in a December 2004 statement implying that the respiratory distress was possibly related to an anxiety attack. Notwithstanding any treatment at that time, the Board notes that subsequent incidents were not reported by the Veteran or are any documented in the medical evidence. As such, the incident, in light of the other medical evidence both during and after the Veteran's third period of active service, does not reflect a permanent worsening of the Veteran's bronchial/asthmatic condition. The Board also notes that the post service medical evidence further supports the examiner's opinion that the pre-existing bronchial condition was not aggravated during service. A report of November 2005 VA examination noted a diagnosis of asthma and that the Veteran was using Albuteral twice daily as needed as well as QVAR (used to treat asthmatic symptoms). A PFT at that time as well as a PFT in September 2011 reflected normal findings. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint can be considered, along with other factors, concerning the veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service.) The Board also notes that the VA examiner in April 2013 opined that it was "not as likely as not" that the Veteran's bronchial condition was caused or aggravated by a service-connected disability. The examiner noted that there was no clinical or medical correlation/nexus between asthmatic bronchitis and the Veteran's service connected disabilities. With regard to the opinion, the Veteran's representative, in a July 2013 Appellant's Post-Remand Brief, identified internet literature from the Cleveland Clinic in support of a relationship between asthma and GERD, a disorder for which the Veteran is service connected. (See http://my.clevelandclinic.org). In particular, the representative cited the following passage: Although studies have shown a relationship between asthma and GERD, the exact relationship is uncertain. GERD may worsen asthma symptoms, but asthma and some asthma medications may in turn worsen GERD symptoms. However, treating GERD often helps to also relieve asthma symptoms, further suggesting a relationship between the two conditions. The Board finds the internet literature from the Cleveland Clinic to be generic. In this regard, the Cleveland Clinic's cited passage, above, does not address the Veteran's specific factual situation and is thus not probative evidence relating the Veteran's bronchial condition (including asthma) to his service-connected GERD. The Board notes that a nexus may be proved if a medical article or treatise evidence, standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts. See Sacks v. West, 11 Vet. App. 314, 317 (1998). The medical literature submitted by the representative in this case, however, does not demonstrate causality but instead only loose associations. Likewise, the Board has considered the literature submitted by the Veteran on asthma and received by the RO in January 2005. As with the literature from the Cleveland Clinic, the Board finds the internet literature on asthma from www.helioshelath.com and www.health.discovery.com also to be generic and not necessarily probative of her claim on appeal. Thus, the Board finds that the April 2013 VA examiner has reviewed the claims folders and provided a detailed recitation of the medical evidence relative to the Veteran's claim on appeal. She has also provided medical opinions that take into consideration the pertinent medical evidence associated with the Veteran's claim. Here, the Board finds the VA examiner's reporting of the evidence and her medical opinions to be probative and persuasive. See e.g., Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). As noted above, the Veteran has not submitted any medical opinion evidence to refute or contradict the opinion of the April 2013 VA examiner. The Board has considered the Veteran's lay statements with regard to the onset of her breathing difficulties, which she has reported occurred during her first period of service and have been reported as on again/off again apparently since that time. The Veteran is competent to report experiencing breathing problems, however she does not have the medical expertise to identify the cause of such problems. The medical evidence does not otherwise reflect findings of a chronic respiratory disability during the Veteran's first or second periods of active service. As noted above, the VA examiner consider the clinical findings of URI and bronchitis but did not find them to be indicative of a chronic disability or otherwise related to the Veteran's current bronchial/asthmatic condition. Furthermore, 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-whether the Veteran's bronchial condition (to include asthma) was incurred in or aggravated by any period of active service falls outside the realm of common knowledge or expertise of the Veteran. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Therefore, in the present case, the Board finds that the evidence clearly and unmistakably shows that the Veteran's bronchial condition (to include asthma) pre-existing her third period of active service and was not aggravated during that period of active service; thus, a presumption of soundness for the Veteran's third period of active service has been rebutted. The Board also finds that the Veteran does not have a bronchial condition (to include asthma) that is proximately due to or aggravated by her service-connected disabilities. Thus, service connection is not warranted for a bronchial condition (to include asthma) on either a direct or secondary basis. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.303; 38 C.F.R. § 3.310 (2006). ORDER Service connection for a bronchial condition (to include asthma) is denied. ____________________________________________ JAMES A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs