Citation Nr: 1328922	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  04-30 968	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for a respiratory disorder, claimed as bronchitis.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel



INTRODUCTION

The Veteran served on active duty from July 1974 to February 1975.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In December 2007 the Board remanded the claim to the RO as the Agency of Original Jurisdiction (AOJ) for further development and consideration.

After receiving the file back, the Board issued a decision in July 2009 denying the claim.  The Veteran appealed that decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC).  Pursuant to a July 2010 Joint Motion, the Court vacated the Board's denial of this claim in an August 2010 Order and remanded the claim back to the Board for still further development and readjudication in compliance with directives specified.  The Board, in turn, subsequently remanded the claim in December 2010 for this necessary additional development.  The Board again remanded the claim in May 2012.  All necessary additional development of the claim since has been completed, allowing the Board to proceed with its readjudication of the claim.

A portion of the Veteran's records are in the Virtual VA system.  Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process.  The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits.  Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record.  VA also is in the process of transitioning to an even newer electronic medium - the Veterans Benefits Management System (VBMS) - with the goal of even greater expediency in deciding claims and appeals.

Additional evidence has been recently associated with the claims file, but the Veteran's representative submitted a statement in July 2013 waiving the right to have the RO, as the AOJ, initially consider this additional evidence, preferring instead to have the Board do so in the first instance.  See 38 C.F.R. § 20.1304(c) (2012) (any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless this procedural right is waived by the appellant).


FINDING OF FACT

The Veteran does not have a respiratory disorder because of his military service.


CONCLUSION OF LAW

A respiratory disorder was not incurred in or aggravated by his military service and may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

A.  Duty to Notify

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence that VA will obtain versus that information and evidence he is expected to provide.  38 C.F.R. § 3.159 (2012).


When the claim is for service connection, this notice should include indication that a "downstream" disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007) (observing that a claim of entitlement to service connection consists of five elements:  (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.  So compliance with the holding in Quartuccio v. Principi, 16 Vet. App. 183 (2002), requires apprising the Veteran of all five of these elements of the claim, including the "downstream" disability rating and effective date elements).  See Dingess, at 486.

Also, at least ideally, the notice should precede the initial adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  If, however, for whatever reason there was not notice prior to initially adjudicating the claim or, if there was, but it was inadequate or incomplete, this timing error in the provision of notice can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

VA notice and assistance errors are not presumptively prejudicial, even when for the sake of argument they are shown to have occurred.  Rather, they must be judged on a case-by-case basis.  And as the pleading party attacking VA's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).


Here, prior to initially adjudicating his claim, so in the preferred sequence, a letter dated in April 2003 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  He was notified of the evidence needed to substantiate his claim, of the information and evidence that VA would obtain, of the information and evidence he was expected to provide, and told that VA would assist him in obtaining evidence, but that it was his ultimate responsibility to provide VA any evidence pertaining to his claim.  Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to his claim, this error was harmless given that service connection is being denied, hence no "downstream" disability rating or effective date will be assigned with respect to this claimed condition.  See 38 C.F.R. § 20.1102.

B.  Duty to Assist

This additional duty includes assistance in obtaining potentially relevant records, such as service treatment records (STRs) and post-service VA and private medical evaluation and treatment records, as well as the provision of an examination - including for a medical opinion - when necessary to make a decision on the claim.

To that end, the Veteran's STRs, VA treatment records, private treatment records, Social Security Administration (SSA) records, and lay statements have been associated with the claims file for consideration in deciding his appeal.

He also had VA examinations, and an expert medical opinion was obtained as well from the Veterans Health Administration (VHA).  See 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  Indeed, the Board remanded this claim in May 2012 to have him undergo a VA compensation examination for a medical opinion, as well as to obtain outstanding VA, SSA, and private records.


When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The VA examinations and opinions obtained in this case are adequate, especially if considered in the aggregate, as they are collectively predicated on a review of the claims file; contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the diagnosis and, assuming there is a diagnosis, etiology of the Veteran's claimed condition.  Consequently, VA's duty to assist with respect to obtaining a VA examination or opinion for this claim has been met.  38 C.F.R. § 3.159(c)(4).

Moreover, there was compliance with the Board's May 2012 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand orders, and the Board itself commits error in failing to ensure compliance).  But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

VA has provided the Veteran opportunity to submit evidence and argument in support of his claim.  He has not made the Board aware of any additional evidence needing to be obtained prior to appellate review that is obtainable, so no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159.

Service Connection

A.  Applicable Law

Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during his active military service, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303(a), 3.306.

Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and, (3) competent and credible evidence of a relationship, or nexus, between the disease or injury in service and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Certain diseases are considered chronic, per se, including systemic lupus erythematosus, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

Where there is a chronic disease shown as such in service or within a presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  This rule does not mean that any manifestation in service will permit service connection.  To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  When, however, the fact of chronicity in service is not adequately supported or legitimately questionable, then a showing of continuity of symptomatology after discharge from service is required to support the claim.  Id.  Establishing continuity of symptomatology under § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service and in turn link current disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is "credible", or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).


Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (i.e., when 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); (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.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is incapable of opining on matters requiring medical knowledge.  In certain instances, however, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

On the other hand, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).


Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly 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).

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

B.  Evidence

The STRs show the Veteran was treated on several occasions for complaints of bronchitis.  See, e.g., August 1974 physical profile record; September 1974 MEDDAC Form 178, November 1974 health record.  An August 1974 
posterior-anterior (PA) and lateral X-ray of his chest was negative.  He had his military separation examination in February 1975, which included a normal clinical evaluation of his chest and lungs.

Private treatment records dated in February 2003, so one month before he filed his current claim, include the report of a respiratory examination.  His lungs were clear to auscultation and percussion, with normal bilateral breath sounds and no wheezes, crackles, or rales.

He filed his claim of entitlement to service connection in March 2003.

He had a VA compensation examination a relatively short time later, in July 2003.  He reported severe dyspnea on exertion.  He was able to walk about 500 yards but did not use the stairs due to difficulty breathing after just one flight.  He denied any complaints of a chronic cough or sputum production.  On examination, he was noted to weigh 298 pounds.  He was noted to be dyspneic with ambulation and had mild shortness of breath with activities such as dressing and undressing, and getting on and off of the examination table.  Lung fields were clear, and expansion and excursion of the chest was normal.  X-rays showed no cardiopulmonary process.  An EKG showed no evidence of cor pulmonale.  A pulmonary function test (PFT) showed a moderate decrease in expiratory air flow.  The diagnosis was "evidence of moderate nonspecific decrease in expiratory air flow in patient who is a nonsmoker with chronic allergic symptoms and a past history of bronchitis."  A more specific diagnosis was not offered.  The examiner indicated that treatment in service for bronchitis was probably an early manifestation of the difficulties with allergic symptoms that had resulted in some decrease of expiratory air flow, which was known to occur over a period of time.

Private records beginning in 2006 reflect diagnoses of pneumonia and upper respiratory infections in addition to complaints of shortness of breath.  A January 2007 disability examination report associated with the Veteran's SSA records reflects a diagnosis of asthma.

A March 2008 PFT noted reduced forced vital capacity (FVC) with normal total lung capacity (TLC) that was possibly related to extra thoracic restriction.  Lung volumes indicated air trapping.  Diffusion capacity of carbon monoxide (DLCO) was mildly reduced, but uncorrected for hemoglobin.  The diagnostic impression was that there was no evidence of obstructive lung disease. 

A November 2008 VA examination report reflects that a VA physician reviewed a copy of the PFTs and gave the following interpretation:  (1) based on spirometry, there was no evidence of obstructive lung disease; (2) normal TLC suggestive no evidence of restrictive lung disease; and (3) mildly reduced DLCO that is uncorrected for hemoglobin required appropriate correction.  The VA physician consulted with another physician, who concurred in the interpretation.  A December 2008 addendum noted that the claims file was reviewed.  A specific diagnosis and etiological opinion were not provided.

The Veteran had an additional VA examination in December 2010.  The examiner attributed the Veteran's expiratory ventilator defect to systemic lupus erythematosus, but did not provide an opinion as to whether this condition had its onset during, or was otherwise related to, his period of active military service.

VA treatment records dated in October 2010 noted complaints of mild shortness of breath, which the treating physician attributed to the Veteran's obesity.

An additional VA examination was performed in June 2012.  The Veteran reported exertional dyspnea as his chief complaint, having its onset 7 to 8 years earlier, so in 2004 or 2005.  However, the examiner concluded the Veteran did not have a recognized respiratory condition.  This was based on the Veteran's report during the clinical interview that he had not been diagnosed or treated for any respiratory or pulmonary condition.  A computed tomography (CT) scan taken during the examination showed no evidence of interstitial lung or other parenchymal lung disease.  The examiner further noted that the record conflicted as to whether the Veteran actually had systemic lupus erythematosus.  The diagnosis was listed on the problem lists in his health record, but the basis of the diagnosis was unclear.  The examiner noted there was no evidence of a positive antinuclear antibody test to confirm a diagnosis of systemic lupus.  Moreover, despite a confirmed diagnosis of gout, systemic lupus was not diagnosed when the Veteran was referred to a rheumatologist in 2003.  The Veteran was also not on any regimen for systemic lupus.  The examiner concluded there was no substantial evidence for a diagnosis of systemic lupus erythematosus.  Instead, the examiner diagnosed exertional dyspnea due to mild impairment of lung function with restrictive pattern of air flow, more likely than not due to body habitus or obesity.  This was based on the Veteran's primary complaint of exertional dyspnea, as well as his long history of obesity with a peak weight of over 300 pounds and a body mass index of 44.

In an addendum that same month, the June 2012 examiner explained that all PFTs showed variable levels of restrictive air flow disruption patterns, without evidence of obstruction.  He surmised that the Veteran had developed some evidence of airway hyperresponsiveness, as evidence by a gradual increase in forced expiratory volume in one second (FEV-1) with bronchodilator treatment, but that his baseline air flow did not show evidence of chronic airway obstruction.  The examiner indicated these results were not evidence of a specific intrinsic pulmonary disease, but rather reflected the well-documented effects of obesity on lung function.  Medical literature clearly indicated that nonspecific decrease in expiratory air flow was attributable to obesity alone.

In order to obtain further clarification, a VHA opinion was obtained in April 2013 from a medical expert.  The examiner reviewed the claims file.  Based on this review, the examiner observed the Veteran experienced shortness of breath with exertion.  The actual diagnosis was not clear based on the evidence, but he most likely had a restrictive lung physiology, which was likely due to extra-parenchymal causes, such as obesity.  A current hyper-reactive airway disease could not be ruled out.  The examiner further stated that, while the Veteran had bronchitis in service, it had resolved based on the available evidence.  At the time of his separation, he had a normal clinical exam and chest X-ray.  There was no evidence to demonstrate any residual respiratory problems between separation and 2003 (the time of his claim).  Therefore, it was less likely that his claimed respiratory condition was related or proximately due to any event or time spent in service.

C.  Analysis

Based on the totality of this evidence, service connection for a respiratory disability is not warranted.  The Veteran had documented complaints in service, and he has post-service diagnoses of respiratory conditions, including asthma and systemic lupus, as well as nonspecific diagnoses such as decreased expiratory air flow and restrictive pattern of air flow disruption.  Therefore, the pertinent question is whether these current conditions are related to the findings in service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").


First, in making this critical determination, the Veteran's assertions have been considered.  However, he has not demonstrated any specialized medical knowledge or expertise, and therefore is a mere lay witness.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a respiratory condition, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  As the Federal Circuit Court observed, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  

To the extent the Veteran's lay statements are offered as evidence of continuity of symptomatology since his service, the Board acknowledges that lay evidence concerning continuity of symptoms after service may be competent, regardless of the lack of contemporaneous medical evidence such as actual documentary treatment records.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Indeed, the essence of 38 C.F.R. § 3.303(b) is continuous symptoms, not necessarily continuous treatment for them.  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  But although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

Moreover, as earlier explained, to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a).  In this case, the only condition that is both reflected in the record and listed in § 3.309(a) is systemic lupus erythematosus.  


In adjudicating his claim, the Board must evaluate the Veteran's credibility.  See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.

In this case, the Veteran is competent to provide evidence of his own symptoms, such as shortness of breath.  However, one must also consider that his military separation examination was normal, and there are no documented complaints of any respiratory symptoms until at the earliest 2003, so not until approximately 28 years after the conclusion of his service.  Moreover, during the June 2012 VA examination, he himself reported an onset date of his symptoms of only 2004 or 2005.  These facts weigh heavily against the claim he now makes that he has had problems ever since his service.  Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a Veteran years later, long after the fact).  This is especially true when considering that many of his prior examinations were in the course of his earlier evaluation and treatment, when there was no incentive to fabricate information for personal gain, financial or otherwise.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  See also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).


The Board is not holding that corroboration is required.  Rather, the Board finds his current assertions regarding continuity to be less credible than the contemporaneous records.  To reiterate, while symptoms, not treatment, are the essence of any evidence of continuity of symptomatology, the lack of evidence of any treatment may also bear on the credibility of the evidence of continuity.  As such, the probative evidence is against the claim based on continuity of symptomatology.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor, just not the only or sole factor, in resolving a claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability).

The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  In Kahana and Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc), the Veteran's Court and Federal Circuit Court cautioned that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Still, ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).


Here, the record also contains several competent medical opinions addressing the nature and etiology of the Veteran's respiratory condition.  According to the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches."  Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993).  The credibility and weight to be attached to these opinions is within the province of the Board.  Id.

Many of the opinions in this case, however, have limited probative weight due to various deficiencies.  The July 2003 VA examiner stated that bronchitis documented in service was probably an early manifestation of the Veteran's current difficulties, identified as a nonspecific decrease in expiratory air flow.  However, a specific diagnosis regarding the current disorder was not provided, and the Board previously concluded that the examination report was inadequate.

The November 2008 VA opinion stated there was no evidence of obstructive or restrictive lung disease, but did not provide any other specific diagnostic information or an opinion regarding etiology.

The December 2010 VA examiner diagnosed systemic lupus erythematosus but did not offer any opinion regarding the etiology of the condition.  Moreover, the June 2012 examiner stated there was no other confirmed diagnosis of systemic lupus (even when the Veteran was referred to a rheumatologist in 2003), that the Veteran was not being treated for lupus, and that he had never had a positive antinuclear antibody test to confirm a diagnosis of systemic lupus.  The June 2012 VA examiner attributed the Veteran's symptoms to obesity, but did not reconcile the documented complaints in service.  In addition, some of the Veteran's records, including his SSA records and certain private treatment records, were not available at the time of that examination.  So that opinion did not have the benefit of considering all of the potentially relevant evidence.


Because of these patent deficiencies, the Board obtained the April 2013 VHA medical expert opinion.  Although the examiner stated that the actual diagnosis was not entirely clear, he also clarified that the bronchitis the Veteran had in service had resolved based on the available evidence, and that there was no evidence showing any residual respiratory problems from the time of his separation from service in 1975 until the time of his eventual claim in 2003.  The Board finds this opinion to be the most probative in addressing the etiology of the Veteran's condition, as it accounts for his documented findings in service and clearly explains why they are unrelated to current findings.  Although the July 2003 examiner identified bronchitis in service as possible early manifestations of the Veteran's difficulty with allergic symptoms, that opinion did not account for such a substantial gap in time between his documented complaints or treatment during his service, which ended in 1975, until his later complaints and diagnoses beginning in 2003.  The opinion also does not account for or otherwise reconcile the Veteran's subsequent statements that the onset of his condition was not until 2004 or 2005.

So when all of this evidence is considered in combination, the Board finds that the overall weight of this evidence is against finding that the Veteran has a current respiratory condition etiologically related to his service.  His appeal accordingly is being denied.  In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102 regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant his claim.



ORDER

The claim of entitlement to service connection for a respiratory disability is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs