Citation Nr: 1327754 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 05-12 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a respiratory disorder, manifested as dyspnea. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran had active service from October 1981 to October 2002. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision issued by the Department of Veterans Affairs (VA) Atlanta, Georgia, Regional Office (RO). This matter has been remanded by the Board multiple times, most recently in June 2012. The appeal is now ready for adjudication. In a rating decision of February 2013, the RO established a 30 percent rating for the service-connected gastroesophageal reflux disease (GERD). The Board denies the current claim because an examiner attributed the Veteran's dyspnea to his service-connected gastroesophageal reflux disease (GERD). The Veteran has not filed an appeal from the February 2013 decision, and the Board need not refer this matter to the RO. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT The Veteran does not have a current diagnosis of a respiratory disorder. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, manifested as dyspnea, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such 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); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in November 2002, which was prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate his service connection claim and of the division of responsibilities between VA and a claimant in developing such evidence. The Board observes that the Veteran was not provided notice of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. However, the Board finds no prejudice in proceeding with a decision regarding the Veteran's service connection claim. In this regard, as the Board concludes herein that the preponderance of the evidence is against the Veteran's claim, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. Therefore, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Accordingly, VA has satisfied its duty to notify under the VCAA. Relevant to the duty to assist, the Veteran's service treatment records, as well his post-service private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Therefore, the Board finds that VA has satisfied VA's duty to assist in this regard. The duty to assist also includes obtaining a medical examination or opinion when necessary to decide the claim. With respect to the claim decided herein, the Veteran was first afforded a VA examination in October 2003. He underwent further examinations in July 2008, July 2010, and supplemental opinions were obtained in July 2012 and May 2013. As will be discussed below, the examiners' findings indicate that the Veteran does not have a respiratory disorder. In reaching such conclusions, the examiners took into account the Veteran's lay statements regarding his in-service and current complaints of dyspnea, physical examinations of the Veteran, including diagnostic testing, as well the medical records contained in the claims file. Therefore, the Board finds that such examinations and opinions are adequate to adjudicate the claim decided herein and no further examination is necessary. The multiple Board Remands, including most the most recent in June 2012, sought an opinion as to the etiology of any current respiratory disorder. Despite repeated examinations, no respiratory disorder was found during the course of the appeal. Thus, an etiological opinion is not required in the present appeal. As will be discussed below, without evidence of a current disability, there can be no valid claim of entitlement to service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, while the Court has stated that the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim, the Board finds that such is not the case here. See McClain v. Nicholson, 21 Vet. App. 319 (2007). At no time during the pendency of the appeal does the evidence show that the Veteran was conclusively diagnosed with a respiratory disorder. Therefore, the Board finds substantial compliance with the directives of the most recent Board Remand specifically addressing the Veteran's claim of entitlement to service connection for a respiratory disorder and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case; at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Service Connection A threshold requirement for the grant of service connection for any disability is that the disability claimed must be present. 38 U.S.C.A. § 1131. The Court has noted that Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1131. In the absence of proof of a present disability there can be no valid claim. Brammer, at 223, 225. The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran seeks service connection for a respiratory disorder, claimed as dyspnea on exertion. At the outset, the Board notes that dyspnea is a symptom of other disabilities and not an independent disability for VA purposes. See 61 Fed. Reg. 20440, 20,445 (May 7, 1996); Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that a symptom without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). Service treatment records reflect that the Veteran entered service with clinically normal lungs and chest, and reported no respiratory complaints, including shortness of breath. During service, he reported dyspnea on exertion on several occasions. The Veteran was noted to have been exposed to asbestos in January 1996. Additionally, the Veteran was treated for tuberculosis during service in October 2001. However, pulmonary function tests and chest X-rays taken during service were normal, and, other than noting dyspnea on exertion, no respiratory diagnosis was rendered. The Veteran underwent a VA examination in October 2003, where the Veteran reported in-service asbestos exposure. The examiner stated that it was as likely as not that he had asbestosis causing shortness of breath, but conversely noted that the pulmonary function tests did not show significant abnormality. As that conclusion (that the veteran had shortness of breath due to asbestosis) seemed to be unsupported by the findings on the examination (such as normal pulmonary function tests and no conclusive evidence with respect to whether or not the veteran had a pulmonary disability), the Board ordered another examination. In the interim, in February 2006, the Veteran was admitted to the hospital for chest pains and shortness of breath. A diagnosis of probable mild underlying chronic obstructive lung disease with continued tobacco abuse was noted. In July 2008, the Veteran underwent another VA examination. A history of dyspnea was noted, however, there were no abnormal respiratory findings. Pulmonary function tests were within normal limits. No opinion was given since there was no objective evidence of disease. The Veteran was again examined in July 2010, during which the examiner did not find any current respiratory condition. The examiner opined that the Veteran's dyspnea was not due to or a result of active duty exposure to asbestos or treatment for tuberculosis. The examiner stated that there was no documentation or correlation to support the claim of dyspnea due to a positive tuberculosis test with negative pulmonary function tests or chest X-rays during active duty. There were no residuals from the tuberculosis skin test and no indication of active tuberculosis disease. An addendum opinion was obtained in July 2012, where the Veteran's lack of a respiratory disorder was again noted as the basis for a negative nexus opinion, to include that such was not related to his service-connected angina. Here, the Board notes that the and in a May 2013 supplemental opinion, explained that respiratory symptoms, including dyspnea, are increased among patients with gastric reflux. However, to the extent that dyspnea is a symptom of the Veteran's service-connected GERD, it is most appropriately addressed in a disability rating for the Veteran's GERD and, again, is not a separately service-connectable disability. Based on the foregoing, the most probative evidence of record demonstrates that there is no clinical diagnosis of a respiratory disorder. While the Veteran is competent to report shortness of breath, he is not competent to diagnosis a respiratory disorder, as such requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). While it is not in dispute that the Veteran experiences dyspnea on exertion, the Board again reiterates that dyspnea is a symptom and not a disability for VA purposes. Therefore, service connection for a respiratory disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a respiratory disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for a respiratory disorder, manifested as dyspnea, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs