Citation Nr: 1327242 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 08-17 426 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for lung problems, to include allergic rhinitis. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran had active service from March 1988 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision by the above VA RO. This issue was remanded in March 2011 for further development, which has been completed in full. The Board notes that additional evidence was associated with the claims file after the most recent supplemental statement of the case (SSOC) was issued with respect to this claim. However, as this evidence is either not pertinent or essentially duplicates or reiterates information that is already of record, the Board finds no prejudice to the Veteran in proceeding to adjudicate the claim as done below. FINDING OF FACT The evidence of record does not show lung problems, to include allergic rhinitis to be etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW Lung problems, to include allergic rhinitis were not incurred in or aggravated by active service, and may not be presumed to be related to service in the Persian Gulf. See 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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. VCAA letters dated in September 2006 and January 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, these letters notified the Veteran as to how appropriate disability ratings and effective dates are assigned. With regard to the duty to assist, the result of the RO's development indicates that some of the Veteran's service treatment records are not be available. VA has a heightened duty to assist in these cases. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board concludes, however, that the heightened duty to assist has been met. Exhaustive attempts were made to obtain the Veteran's complete service treatment records. The RO made a formal finding that any further service treatment records could not be obtained in December 2006. The Veteran was duly informed of the RO's determination in a December 2006 letter. The Veteran's enlistment examination report, however, was located and associated with the reconstructed claims file, and the Veteran submitted some service treatment records in his possession. The claims file contains all available evidence pertinent to the claims, including private medical records and VA medical records. The Board notes that the Virtual VA paperless claims file contains an April 2013 Authorization and Consent to Release Information form with regard to private treatment records. The response associated with this form indicated that all available medical records were attached. VA has requested records identified throughout the claims process. In essence, the Board finds that all records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim, and VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided a VA medical examination with regard to this claim in August 2011. An addendum was provided with regard to this examination report in September 2011. The examiner reviewed the claims files, conducted the appropriate tests and studies, and noted the Veteran's assertions. As such, the Board finds this examination report and addendum to be thorough, complete, and sufficient upon which to base a decision with regard to this claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all 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. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the present case, the Veteran is also potentially eligible for service connection for symptoms due to an undiagnosed illness resulting from his service in the Persian Gulf region during the Persian Gulf War. Such claims are governed by 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. A Veteran must present some evidence (1) that he or she is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval or air 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, 2016; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a) (2012); 76 Fed. Reg. 81834 (Dec. 29, 2011); see Neumann v. West, 14 Vet. App. 12, 22 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order). Unlike service connection on a direct basis, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 do not require competent medical nexus of a link between the qualifying chronic disability and military service. Service connection is presumed unless there is affirmative evidence to the contrary. See 38 C.F.R. § 3.317(c); Gutierrez v. Principi, 19 Vet. App. 1 (2004). Section 3.317 explicitly acknowledges that a claimant's "signs or symptoms" need not be shown by medical evidence; however, the regulation does specifically require some "objective indications" of disability. See 38 C.F.R. § 3.317(a) (2012). "'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)(2) (2012); Neumann, supra. Thus, although medical evidence of signs or symptoms is clearly not required to grant a claim, the regulation does require that there be some objective, independently verifiable evidence of the symptoms. Id. A Persian Gulf Veteran is a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317. The Veteran's DD-214 documents that he had 2 years and 29 days of foreign service and that he served in an area of responsibility for Operation Desert Shield/Storm from September 8, 1993, to December 8, 1993. A service treatment record reflects that he returned from Saudi Arabia in December 1993. As such, the record reflects that the Veteran served in Southwest Asia during the pertinent time period. In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110 and 1131 is warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (specifically addressing claims based on ionizing radiation exposure). Thus, the presumption is not the sole method for showing causation. However, where the issue involves a question of medical diagnosis or causation, a claimant must establish the existence of a disability and a connection between the Veteran's service and the disability. In this case, the Veteran filed a claim for lung problems, but the medical evidence appears to demonstrate that the symptoms for which he filed a claim are more closely associated with allergic rhinitis. A February 1994 service treatment record shows a notation regarding allergies. However, there was no indication that this was a nasal allergy or allergic rhinitis. It was specifically noted that the Veteran should follow up with dermatology/primary care. Moreover, other treatment records reflect that the Veteran reported a rash all over his body in February 1994. The Veteran's service treatment records show an episode of sore throat and congestion in September 1994. The following day, he was diagnosed with streptococcal pharyngitis. A separate undated service treatment record noted a complaint of a sore throat for 5 days. It was noted as probable strep throat. At the May 1995 VA examination, the Veteran's lungs were clear without wheezes, rhonchi, or rales. A December 1995 VA treatment record noted complained of mid-chest pain (sharp) which increased with deep breathing and when lifting weights. It was noted that he had a history of "chest pain - musculo-skeletal." In February 1996, the Veteran sought treatment for chest pain lasting 7 months. The pain was in the epigastric area when he took a deep breath. Lungs were clear to auscultation. The treatment provider assessed hiatal hernia versus lung disease. However, there is no documentation of follow-up testing. At an April 2006 Persian Gulf War examination at the VA Medical Center (VAMC), the Veteran reported that he had congestion a lot. The lungs were clear. At his May 2007 VA examination, the Veteran described chest and head congestion since 1994 or 1995. He had used multiple allergy medications, but with no relief. Currently, he had symptoms of a runny nose and congested head. He was taking allergy shots until one year ago but stopped. The Veteran said he had symptoms almost every day that lasted for a few hours. The chest was clear to auscultation. The examiner assessed chest congestion, more likely than not allergic rhinitis. At the August 2008 VA examination, the Veteran related no history of productive cough, sputum production, hemoptysis, or anorexia. No dyspnea was noted on exertion, and he had not been diagnosed with asthma. He was currently receiving no treatment for respiratory-type ailments. There was no history of cor pulmonale, right ventricular hypertrophy, or pulmonary hypertension. The Veteran did have a pulmonary function test, and the interpretation was normal with no significant bronchodilator response and diffusion was within normal limits. In sum, the examiner found no evidence of any significant lung condition at that time. The Veteran was diagnosed with allergic rhinitis, with no other significant respiratory lung disease noted after examination today; pulmonary function testing done and normal. In the March 2011 remand, the Board noted that, although the evidence described above is negative for a lung disorder, it appears that the Veteran has a current diagnosis of allergic rhinitis, with symptoms of chest and head congestion. These are the symptoms for which the Veteran appears to be claiming compensation. Since he had similar symptoms in service, and since no examination had been obtained with regard to his allergic rhinitis, the Board remanded this issue in order to provide the Veteran with an examination to determine whether there was a relationship between his current symptoms and those observed during active service. As such, the Veteran underwent another VA examination in August 2011. The examiner reviewed the claims file. The Veteran reported lung problems with an onset of 1994. He reported that he first had problems with head congestion around 1993 or 1994. He reported that he had nasal congestion and occasional headaches. He denied any runny nose, itchy or watery eyes, cough, or sinus pain. He also reported a history of sinus infections in the past, around 3-4 per year. The Veteran reported that his nasal congestion and infections were so frequent that he underwent turbinate reduction in 2009 and had a tonsillectomy around 2009 because they were "swollen" and he had recurrent infections. The Veteran reported that he is now getting allergy shots for treatment for allergy symptoms and has been getting them since 2005. The Veteran specifically indicated that he did not have problems with chest congestion in the past; he had nasal congestion. The examiner noted that, from the Veteran's description, there does not appear to be any respiratory ailment in the past or in the present. Upon review of the claims file and examination of the Veteran, the examiner diagnosed the Veteran with allergic rhinitis and noted that pulmonary function tests (PFTs) were still pending to rule out any additional lung disability. The examiner determined that it is less likely than not that the Veteran's currently diagnosed disability relating to head and chest congestion was incurred during active service. The examiner noted that 1994 service treatment records report "congestion" and do not indicate that the Veteran had chest congestion while in the military. The records indicate that the Veteran was diagnosed with strep pharyngitis during his military service; at the time, he had temperatures of 100.9 and 100.8, as well as throat exudate and an enlarged neck lymph node. The examiner noted that strep pharyngitis is the most common cause of exudative pharyngitis, and is characterized by fevers and throat or tonsillar exudate, symptoms which the Veteran had during his 1994 illness. It is also characterized by enlarged lymph nodes. Allergic rhinitis does not result in these physical findings. The examiner also found no evidence that the Veteran was diagnosed with allergic rhinitis within one year of his military service. There is no evidence that the Veteran was treated for any pulmonary condition during his military service, or since his discharge from the military. In a September 2011 addendum to this examination report, PFTs were recorded. The examiner noted that the PFTs were essentially within normal limits. There is no evidence of a chronic lung condition based on history and PFTs. Subsequently, private medical records from Southwest Asthma and Allergy Associates were associated with the Virtual VA paperless claims file. These records were submitted by this facility, and a notation indicated that all available records were attached. These records essentially confirmed the history that the Veteran related to the August 2011 VA examiner regarding treatment and confirmed the August 2011 VA examiner's diagnosis of rhinitis. Specifically, the private treatment records noted a diagnosis of perennial rhinitis and rhinitis due to food allergy. With regard to granting service connection on a presumptive basis under 38 C.F.R. § 3.317, the Veteran was assigned a diagnosis of rhinitis with regard to his complaints. Therefore, as the Veteran has been noted as having a diagnosed disability for his reported symptoms, service connection for the Veteran's complaints as due to an undiagnosed illness cannot be granted on a presumptive basis under 38 C.F.R. § 3.317. The Board notes that the Veteran was not assigned a diagnosis with regard to lung problems. However, the Veteran specifically indicated in the August 2011 VA examination report that he did not have problems with chest congestion in the past; he had nasal congestion. The August 2011 VA examiner noted that, from the Veteran's description, there does not appear to be any respiratory ailment in the past or in the present. Therefore, as all of the Veteran's reported symptoms have been attributed to a known diagnosis of rhinitis, the Board finds that there are no specific lung complaints for which service connection could be granted as due to an undiagnosed illness under 38 C.F.R. § 3.317 With regard to granting service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). The only medical opinion of record on the matter specifically indicates that it is less likely than not that the Veteran's currently diagnosed disability relating to head and chest congestion was incurred during active service. Moreover, the most current medical evidence of record on the matter reflects that there is no evidence of a chronic lung condition based on history and PFTs. While the August 2011 VA examiner noted the Veteran's in-service complaints, she ultimately determined that these in-service complaints were due to strep pharyngitis, for which the Veteran does not have a current diagnosis, and were not due to his current diagnosis of allergic rhinitis. The claims file contains no medical opinions to the contrary, and is otherwise supported by the clinical records. With regard to the Veteran's lay assertions regarding his allergic rhinitis symptoms, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Here, the Veteran's nasal complaints are certainly capable of lay observation, in so far as to establish that he has congestion. However, the Board finds that the cause of any currently diagnosed rhinitis disability is not capable of lay observation. Specifically, the Board finds that, as a lay person, the Veteran is not competent to link a diagnosis of rhinitis to service. This is because he does not have any specialized training with regard to the causes of rhinitis or the inner workings of the respiratory system. As such, while the Veteran's opinion is provided some weight as to duration of his symptoms, his opinion is afforded little weight in the analysis of whether a nexus between a current disability and his active duty service exists. By contrast, the August 2011 VA medical professional who reviewed the Veteran's medical and available military histories has offered an opinion with supporting explanation as to why in her judgment the Veteran does not have rhinitis that is related service. As explained above, there are no medical opinions to the contrary. For these reasons, the Board places the most significant weight on the August 2011 and September 2011 VA medical opinions, which find against service connection. Additionally, the Board notes that the claims file contains page 1 of an August 31, 2011, letter from the Veteran's wife, in which she provides her lay observations of the Veteran's conditions. However, as the portion of this letter that has been submitted does not address the Veteran's allergic rhinitis symptoms, the Board finds it is not pertinent to this claim. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for lung problems, to include allergic rhinitis, and the benefit-of-the-doubt rule is not for application. ORDER Entitlement to service connection for lung problems, to include allergic rhinitis is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs