Citation Nr: 1327369 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 12-28 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a lung disability to include bronchitis and including as a result of exposure to asbestos. 2. Entitlement to service connection for an upper respiratory disability to include asthma and rhinitis and including as a result of exposure to asbestos. REPRESENTATION Appellant represented by: John March, Agent ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from September 1946 to July 1949 and from April 1951 to January 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) that reopened final disallowed claims for service connection for lung and upper respiratory diseases but denied service connection on the merits. In February 2013, the Board concurred that the claims for service connection for lung and upper respiratory disorders required a de novo review but remanded the claims for further development. A review of the Virtual VA and Veterans Benefits Management System electronic claims files reveals additional VA outpatient treatment records that were considered by the RO in the most recent May 2013 supplemental statement of the case. Please note 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). FINDINGS OF FACT 1. The Veteran's military occupation and duty locations are not consistent with exposure to unusually cold weather, asbestos, or demolition/construction debris. 2. The Veteran experienced two episodes of tonsillitis in active duty service. There is no credible evidence of a final diagnosis of pneumonia in service or any residuals of pneumonia or residual lung damage from environmental hazards during or after service. 3. The Veteran's current lung and upper respiratory disorders, variously diagnosed as asthma, recurrent bronchitis, chronic obstructive pulmonary disease (COPD), rhinitis, and sinusitis, first manifested after service and are not caused or aggravated by any aspect of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lung disability including bronchitis and including as a result of exposure to asbestos are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2012). 2. The criteria for service connection for an upper respiratory disability to include asthma and rhinitis and including as a result of exposure to asbestos are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Where complete notice is not timely accomplished, an error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In November 2011, the RO provided notice that met the requirements prior to the initial decision on the claims in March 2013. The notice informed the Veteran of all five criteria to substantiate a claim for service connection and explained the Veteran's and VA's respective responsibilities to obtain relevant evidence. Therefore, the notice requirements have been satisfied. The Board also concludes VA's duty to assist has been satisfied. Although the archive agency reported that some of the Veteran's records were destroyed in a fire, the claims file does contain personnel and treatment records from both periods of active duty. The combined records identified the Veteran's dates and locations of service, his military occupation, two incidences of hospital treatment, and the report of a discharge physical examination in 1949. The extent of the service record recovery was explained to the Veteran in an August 2012 statement of the case. Further, in a July 2012 letter, the RO requested that the Veteran provide details on the location, date, and nature of his exposure to asbestos. The Veteran's representative provided some information in a September 2012 letter. Relevant VA and indentified private medical records have been associated with the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when it is necessary to make a decision on a claim. The Veteran underwent a VA examination in January 2012 with an additional record review and medical opinion in May 2013. The results have been included in the claims file. The examination and opinion involved summary of the history from a review of the record and from reports by the Veteran, a thorough clinical examination in compliance with regulations and protocols in the examination, and an opinion on the etiology of the lung and respiratory disorders. The Board concludes that the examination and record review were performed by qualified physicians with appropriate consideration of the history and clinical observations. The Board will address the history, clinical observations, rationale for the opinion, and compliance with remand instructions below. Therefore, the Board finds that the examination and opinion are adequate. 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). 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. Additionally, the Board issued a remand in February 2013. Following a review of the additional evidence, the Board concludes that there has been substantial compliance. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The RO requested any additional evidence from the Veteran, obtained current VA treatment records, and a VA record review and opinion. The Board requested a complete copy of the March 2012 rating decision. However, that decision was issued using the simplified notification letter format and was already of record. Following the review and opinion, the RO issued a supplemental statement of the case in May 2013 with an appropriate opportunity to respond. The Board finds that there has been substantial compliance with the mandates of its remand. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Therefore, the Board will proceed to review and decide the claim based on the evidence that is of record. The Veteran served during both periods of active duty as a U.S. Air Force aircraft supply technician. He contends that his respiratory disorders including asthma, bronchitis, COPD, and rhinitis are residuals of an episode of pneumonia in 1947 or were caused by exposure to cold weather, asbestos, and toxic materials from demolition of old buildings. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. § 3.304 (2012). See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The designated chronic diseases do not include asthma, bronchitis, COPD, rhinitis, or sinusitis. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran's respiratory diseases are not recognized as chronic diseases. A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board may weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson is not competent to diagnose a form of cancer). As reflected in Fed.R.Evid. 701, lay witness testimony is permissible in the form of opinions or inferences when (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Otherwise, in matters involving scientific, technical or other specialized knowledge, Fed.R.Evid 702 requires that an opinion be provided by a witness qualified as an expert by knowledge, skill, experience, training or education. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Service personnel records showed that the Veteran served as an aircraft supply technician from January 1947 to October 1948 in the Pacific Theater. His duties were the requisitioning, inventory, and control of hand tools, mobile repair equipment, and small parts. Although the Record of Separation and Honorable Discharge showed that his overseas location was in Japan, the Veteran was hospitalized for three weeks in Guam in February and March 1947 for symptoms of cough and sore throat. At admission, the attending physician diagnosed tonsillitis and possible atypical pneumonia. A chest X-ray was "essentially negative." When discharged from treatment, the attending physician diagnosed only bilateral, exudative, acute tonsillitis and noted that the Veteran was "cured." In a September 1949 discharge physical examination, a military physician noted that a lung, and chest examination and a chest X-ray showed no significant abnormalities. The physician noted. "Pneumonia 1947, no sequelae." Service personnel records showed that the Veteran was recalled to active duty in April 1951 and served overseas for approximately one year and four months as an aircraft supply technician at an Air Force aircraft repair depot in France. There is no record of any service in Korea or award of Korean War campaign medals. In December 1951, the Veteran sought treatment at a base clinic for the sudden onset of a sore throat. A clinician noted the Veteran's report of the earlier episode of tonsillitis that was successfully treated with sulfa tablets. Another clinician noted a history of pneumonia in Guam in 1947. After four days of treatment with antibiotics, the attending physician noted that the acute tonsil inflammation had subsided but that the tonsils were still hypertrophied. The physician noted that the Veteran refused to return for a tonsillectomy. The final diagnosis was acute tonsillitis. A discharge physical examination report is not of record. In February 1992, the Veteran sought VA treatment for a cold and persistent cough since the previous November. An examiner noted, "Possible health maintenance deficit related to TB." However, a chest X-ray showed clear lungs with no evidence of pneumonia or residuals of tuberculosis. VA records through 1999 showed intermittent treatment for colds and cough. Some clinicians noted that the cough improved when an unrelated medication was stopped, suggesting that the symptoms were an allergic response. In a February 1997 claim for service connection for a lung condition, the Veteran reported that the symptoms first manifested in service and continued since that time. In July 1997, the Veteran reported that he had episodes of pneumonia in 1947, 1953 and 1994. In February 1997, a VA clinician suspected that the recurrent symptoms were low grade asthma or a seasonal rhinitis. In September 1999, a VA physician noted that a certain medication for an unrelated disorder was not appropriate because of the Veteran's asthma. This diagnosis has been carried forward in VA records to the most recent entries in April 2013. The Veteran was advised to use an over-the counter allergy medication. Clinicians also noted that the Veteran was allergic to penicillin. In October 2002, a VA clinician diagnosed the recurrent symptoms as acute bronchitis/sinusitis. The RO denied service connection in 1997 and 1998 for a lung disorder because service treatment records did not show that the Veteran had a chronic lung disorder in service or prior to the 1990s. The RO declined to reopen the claim in 2006 because new and material evidence had not been received. VA outpatient treatment records through April 2013 show occasional treatment for colds, cough, and sinus congestion that included the use of inhalers for symptoms noted by clinicians as "exacerbations of COPD" and "complaints of bronchitis." In January 2002, a clinician noted that the Veteran was a former smoker and worked in insurance sales. In May 2002, a pulmonary function test showed normal spirometry. In May 2011, the RO received the Veteran's claims for service connection for asthma, bronchitis, and COPD as secondary to in-service episodes of pneumonia in 1947 and 1951 including as due to cold weather exposure in Korea. In January 2012, a VA contract physician noted a review of the service records and post-service VA records. He noted the Veteran's report of a lung disorder since 1947. The Veteran reported shortness of breath after walking one block and monthly asthma attacks. He denied any episodes of respiratory failure or recurrent infection. There was no mention of tonsillitis or exposure to cold weather or other environmental hazards. On examination, the physician noted an abnormal increased expiratory phase of breathing, confirmed on a pulmonary function test. An X-ray showed clear lungs with no active disease. The physician diagnosed COPD and concluded that the current disorder was not a residual of pneumonia because pneumonia is a bacterial infection while COPD is a narrowing of the airways. In a May 2012 notice of disagreement, the Veteran's representative contended for the first time that while the Veteran served in France "...there was the demolition and reconstruction of military facilities where the veteran was exposed to possible asbestos and other construction debris and dust." The representative did not further describe the Veteran's duties or how that exposure occurred but requested that VA review service records to determine the Veteran's military occupational specialty. In a letter in July 2012, the RO requested additional information on the dates, nature of exposure, unit assignment, and type of work after service. In a September 2012 letter, the representative responded: In my review of the file, the veteran was involved with demolishing structures in the 1940s. There were a number of toxic material used in the construction of those buildings, including lead asbestos etc. ...the veteran may be suffering from the long term effects of these toxic materials. In February 2013, the Board remanded the claim in part to ensure that the administrative protocols of VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, 7.21 for the development of claims associated with asbestos exposure were followed and to obtain any additional service records that might show a related occupational specialty or service in Korea. The Board also directed a VA medical review of the record and opinion on whether the Veteran's current lung or upper respiratory diseases were etiologically caused by exposure to cold, asbestos, or other toxic materials. In February 2013, the RO filed a request for additional service records related to military assignments. In May 2013, the National Personnel Records Center provided additional service personnel records. The assignments and duties shown are as discussed above. In May 2013, a VA physician noted a review of the claims file including the service record entries, VA outpatient treatment records, and contract examination. The physician concluded that there were no residuals of the treatment in 1947 as shown on the discharge examination and his fitness for additional service in 1951. The physician noted that the Veteran was treated only for tonsillitis in 1951 and that his respiratory function was normal more than 50 years later as shown by the 2002 pulmonary function test. In the interim, the Veteran developed mild asthma that was easily controlled. The physician noted, Veteran's most recent chest x-ray 12/21/11 is also read as clear, which also speaks against damage having been done. The Veteran's lung function at present is somewhat less than in 2002, but this would be expected from the normal 'aging' of the lungs which occurs in all patients. It is less likely as not that Veteran's present lung condition is due to exposure to cold, or exposure to asbestos, or exposure to toxins. Additionally, I do not find in Veteran's service record documentation to back up these alleged exposures. The Board concludes that service connection for a lung condition and upper respiratory disorder, variously diagnosed as asthma, bronchitis, COPD, rhinitis, and sinusitis is not warranted. The Veteran is competent to report on his observable symptoms, his military duties, and the treatment and diagnoses that he received in service. The Veteran's representative is competent to repeat any history told to him by the Veteran or information obtained in a review of the file. The Veteran's reports of symptoms are credible as they have been accepted by his clinicians and have been the basis for his medical treatment. The Board finds that the Veteran's and his representative's reports of the history of military duties and in-service diagnoses are not credible as they are inconsistent with the service records. The service records do not show a diagnosis or treatment of pneumonia in 1947 or 1951. Although pneumonia was listed as possible diagnosis on admission, on both occasions the final diagnosis and treatment was only for tonsillitis. Subsequent entries of a history of pneumonia including on the discharge physical examination in 1949 are not consistent with the actual diagnoses made at the time of the treatment. Moreover, even if the Veteran had pneumonia in 1947, there were no residuals noted at the time of discharge. There are no X-rays or clinical notations of any residuals of pneumonia at any time after service. Therefore, the Board concludes that the only diseases noted in service were two exacerbations of tonsillitis that were successfully treated and that the Veteran never had pneumonia in service. The Veteran declined to undergo a recommended tonsillectomy. As the claimed lung and respiratory disorders are not recognized as chronic diseases, lay evidence of a continuity of symptoms is not alone sufficient to substantiate service connection. Further, the Veteran's reports of the onset of respiratory symptoms in service warrants very low weight because the service treatment records show only treatment for tonsillitis and not for respiratory deficits. The representative's statement that his review of the records showed service in Korea and exposure to demolition of buildings is not credible as there is no evidence to support these contentions in the record. There is no evidence of any service in Korea. The Veteran served in Japan, Guam, and France as an aircraft parts and small tools supply specialist, duties that do not require extended work outdoors. The Veteran's occupation may have involved visits to the flight line but not field exercises. Winter in France does not present an unusually cold environment, and it is likely that adequate Air Force uniform clothing was available at an aircraft repair depot in Europe. Aircraft parts or tools would not likely be stored or issued in a dirty construction environment, and the Veteran's occupation is inconsistent with construction skills. The Veteran has never reported these exposures to his clinicians. Moreover, there is no imaging evidence of lung damage from environmental hazards at any time in the entire history. Therefore, the Board concludes that the Veteran was not exposed to asbestos or any building construction debris or toxic substances. The Board concludes that the great weight of credible evidence is that the Veteran's asthma, recurrent bronchitis, COPD, rhinitis, and sinusitis manifested after service and are not caused or aggravated by any aspect of service including as residuals of two episodes of tonsillitis. None of the Veteran's VA clinicians ever associated his current disorders with tonsillitis or other events in service. There is some mention of former smoking and allergic response to medication or seasonal allergens. The Board places greatest probative weight on the opinion of the VA physician in 2013 who reviewed the entire record and noted that there was no imaging evidence of residuals of pneumonia or lung damage caused by environmental hazards. The physician concluded that the Veteran developed mild asthma later in life and that the current respiratory deficits were the consequence of aging and not residuals of pneumonia or exposure to environmental hazards. The weight of the credible evidence demonstrates that the Veteran's current symptoms of his hands and feet were first manifested many years after service and are not related to his active service or any incident therein. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a lung disability including bronchitis and including as a result of exposure to asbestos is denied. Service connection for an upper respiratory disability to include asthma and rhinitis and including as a result of exposure to asbestos is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs