Citation Nr: 1331766 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-31 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a respiratory condition, to include chronic obstructive pulmonary disease (COPD) and asthma. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from December 1979 to December 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records through March 2012. In the August 2012 Supplemental Statement of the Case, the RO specifically stated that the Veteran's VA treatment records through March 2012 were reviewed prior to the adjudication of the claim. Therefore there is no prejudice to the Veteran in the Board's adjudication of his claim. The Veteran testified at a hearing in August 2011 before the undersigned. A copy of the transcript has been associated with the claims file. In November 2011 and April 2013, the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. FINDING OF FACT The preponderance of the evidence reflects that the Veteran does not have a respiratory condition due to any incident of his active duty service. CONCLUSION OF LAW The Veteran's respiratory condition was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in December 2007. This letter advised the Veteran of what evidence was required to substantiate his service connection claim, and of his and VA's respective duties for obtaining evidence. The letter provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, records from the Social Security Administration (SSA), and the report of a VA examination in April 2012. The examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiner also provided a rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). He testified at a hearing before the undersigned in August 2011. At a hearing on appeal, 38 C.F.R. § 3.103(c)(2) (2012) requires that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In the present case, the undersigned clearly set forth the issues to be discussed during the hearing and suggested evidence to submit to substantiate the claim. Specifically, the Veteran was asked about which VA facilities he received treatment at and whether he received treatment from private physicians. This case was remanded in November 2011 so the Veteran could undergo an examination and additional private medical records could be obtained. The Veteran underwent an adequate VA examination in April 2012, as noted above. In December 2011, the RO sent the Veteran release forms for his private physicians and he did not return them. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA. 38 U.S.C.A. § 5107(a). While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). The case was remanded a second time in April 2013 so that SSA records could be obtained. The SSA records are now associated with the claims file. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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 for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the Veteran's use of tobacco products during service. 38 C.F.R. § 3.300. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-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, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). 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. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). The Veteran did not report current respiratory symptoms in his October 1979 report of medical history. He specifically answered "no" to the questions regarding whether he had asthma, shortness of breath, pain or pressure in his chest, and chronic cough. He answered "yes" to the question regarding whether he had consulted with or been treated by a health care provider within the past five years and stated that he had bronchitis. The physician noted that the Veteran had bronchitis in January 1979 with no sequelae, and stated that it was not currently disabling. The notation in the report of medical history was not of an existing disability but rather a history of a previous illness that was no longer present. Further, the Veteran's October 1979 enlistment examination showed a normal respiratory examination with no respiratory conditions noted by the examining physician. The remainder of the Veteran's STRs do not reference a pre-existing condition. Therefore, the Veteran was in sound condition upon entry into service. The Veteran has been diagnosed with asthma, COPD, and emphysema during the appeal period. The first element of a service connection claim has been satisfied. Hickson, 12 Vet. App. at 253. His STRs show that in May 1982, he was treated for bronchitis, satisfying the second element of a service connection claim. Id. The Veteran underwent a VA examination in December 1997. The examiner found that bronchial asthma was noted in service. At the time of the examination, the Veteran took Proventil and Azmacort for respiratory problems. The examiner diagnosed bronchial asthma but did not provide an etiology opinion. In April 2012, the Veteran underwent a second VA examination. He was diagnosed with asthma, emphysema, and COPD. The Veteran reported that he developed asthma and a respiratory problem in service because he wore a defective gas mask during a training exercise and was exposed to toxic gas. He also asserted that he was exposed to gas while serving in Germany in 1981. The examiner reviewed the claims file and stated that his STRs did not corroborate either incident. The examiner found that the Veteran has had "well documented" COPD and emphysema since 2007. The examiner explained that the diagnosis of asthma was "not as well supported" by the record. The examiner concluded that the Veteran's current respiratory conditions were not related to his period of active duty. The examiner explained that the Veteran's STRs showed a single instance of treatment for "what appeared to be acute bronchitis in 1982," and noted that the diagnosis was bronchial asthma. The examiner elaborated that "[t]his is most often a self-limiting condition of either viral or bacterial origin," and that there was no further documentation of sequelae in the STRs. The examiner noted that the condition was mentioned on the Veteran's separation examination. However, he found that "[t]here is no evidence of current or ongoing treatment for a respiratory condition on [his] separation exam[ination]." Regarding asthma, the examiner found that there was no indication that the Veteran was diagnosed with "true asthma" while in service. The examiner explained that, "[t]he terms bronchial asthma or asthmatic bronchitis are often used in the diagnosis of the wheezing involved with an acute episode of bronchitis or an upper respiratory infection." The examiner found that there was no evidence of treatment for a respiratory condition within one year of service as the Veteran asserted. The Veteran was first treated for an acute episode many years after service. Further, the examiner noted that the Veteran has a history of tobacco use "documented since the age of 8," that he was a two pack per day smoker for 50 years, and that he continued to smoke one and a half packs per day. The Veteran's pulmonary consultation records "minimally" addressed asthma and the examiner concluded that the Veteran's primary respiratory problems were COPD and emphysema, and that smoking is the "number one" cause of both. The examiner reasoned that this was "well documented in all medical literature concerning the cause of COPD." The examiner concluded that there was no evidence to support the conclusion that the Veteran's current respiratory conditions were sequelae or in any way related to the respiratory condition he was "transiently treated for while in the military." The examiner's opinion and well-reasoned rationale provides probative evidence against the Veteran's claim. The remaining VA medical evidence shows treatment for COPD and emphysema. VA treatment records consistently note that the Veteran smoked one and a half packs of cigarettes per day. In February 2010, a VA treatment record noted that the Veteran had a 40 year history of smoking one and a half packs per day. The record also shows that he was offered smoking cessation assistance but he refused. The VA medical evidence does not address whether there is a nexus between his current respiratory disorders and his period of active service. The Veteran's private medical records show treatment for respiratory conditions. In September 2004, Dr. R. H. diagnosed the Veteran with acute asthmatic bronchitis and advised him to quit smoking. October 2008 and January 2009 records from Dr. R. M. noted a history of smoking and that the Veteran was not yet ready to quit. He prescribed nasal saline spray and azithromycin for acute sinusitis and bronchitis. Drs. R. H. and R. M. did not provide etiology opinions. In February 2009, the Veteran consulted with Dr. S. K., a pulmonologist. Dr. S. K. noted that the Veteran was a lifelong smoker, beginning at age eight. He smoked two packs per day for many years. The Veteran reported to Dr. S. K. that he had no respiratory problems as a child or teenager, but that while he was in the military, he was a test subject for a "CN" grenade designed to cause eye and respiratory problems. He stated that he and other soldiers were used to see how people responded to the grenade while wearing gas masks. Within 12 to 24 hours, the Veteran stated that he had a cough, wheezing, and problems breathing, for which he was treated. He also stated that he had asthma in service but that after service he did not have good health care or access to medications. He asserted that he had a cough, sputum production, wheezing, and dyspnea "off and on" for over 20 years. Dr. S. K. noted that "[d]uring that time, he was amassing more and more cigarette exposure." Dr. S. K. diagnosed moderate to severe COPD with "some potential reversibility" and continued tobacco abuse. Dr. S. K. did not provide an opinion regarding the origin of the Veteran's COPD. The Veteran's private and VA treatment records do not provide probative evidence with regard to the nexus element of a service connection claim because they do not address whether one exists. As noted above, the Veteran's October 1979 report of medical history showed that he had bronchitis in January 1979, but that it had resolved completely prior to his entry into service. His October 1979 entrance examination showed a normal respiratory examination. In May 1982, he was noted to have a history of bronchitis when he sought treatment for chigger bites and flulike symptoms. He complained of a runny nose, a sore throat, and nausea. Upon examination, he had bilateral wheezes and rales. The impression was bronchitis and pharyngitis. At a follow up appointment he complained of wheezing. On examination, he had wheezing. The impression was bronchitis "vs. acute asthma." In his August 1982 report of medical history for separation, the Veteran answered "yes" to the questions regarding whether he had asthma, shortness of breath, and pain and pressure in his chest. He answered "no" to the question regarding whether he had a chronic cough. The physician noted, "asthma vs. acute bronchitis 9 June 82," that the shortness of breath and chest pain were associated with that diagnosis, and that he had taken slophylin. His August 1982 separation examination showed normal lungs and chest, and no respiratory conditions were noted. The STRs provide probative evidence that the Veteran was treated for a single episode of bronchitis while in service. The Veteran submitted lay evidence in support of his claim. In November 2007, he stated that he had COPD and asthma from effects of "the gas chamber" and a defective gas mask he used during training. In August 2011, he stated that his respiratory condition began in the military. He asserted that he was treated at Ft. Hood for asthma and prescribed pills and an inhaler. He stated that he contracted bronchial asthma at Ft. Bliss, Texas, when he used a defective gas mask during an exercise. Further, he stated that he was exposed to gas while serving in Germany in 1981 and that he never had respiratory problems until that time. In July 2013, the Veteran's representative contended that the Veteran's respiratory problems were due to use of a defective gas mask in service. The Veteran is competent to report observable symptoms such as respiratory problems. Layno v. Brown, 6 Vet. App. 465 (1994). His STRs show that he was treated for bronchitis once in service; the Board finds that the Veteran's statements regarding an episode of bronchial asthma and treatment for this condition are credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). His assertion that he was treated for a respiratory problem in service provides probative evidence in favor of his claim. However, the record does not support his assertion that he was exposed to toxic gas while in service. His STRs are entirely negative for references to an incident where he was exposed to gas in either a training exercise in the United States or in Germany and aside from his lay statements, the remainder of the record does not support a finding that the event occurred. The Veteran's lay assertion alone that he was exposed to gas does not establish that this event occurred and is not credible. It does not provide probative evidence in favor of his claim. Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the episode of bronchitis that the Veteran was treated for in service was the cause of his current COPD, emphysema, and asthma, 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). Further, his assertion that he was exposed to gas which caused his respiratory problems has been investigated by competent medical examination and found not supportable; the April 2012 examiner found that the Veteran's current respiratory conditions were instead related to smoking. Id. The Veteran has asserted that his respiratory condition manifested in service and that he has experienced symptoms "off and on" since that time. However, his COPD, emphysema, and asthma are not chronic conditions as set forth in 38 C.F.R. § 3.303(a). Therefore, the theory of continuity of symptomatology is not applicable in this case. 38 C.F.R. § 3.303(a),(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board finds that the opinion and well-reasoned rationale provided by the April 2012 VA examiner is more probative than the Veteran's lay assertions. The examiner reviewed the entirety of the record, and explained why the Veteran's current respiratory conditions are more likely related to smoking. He also explained that "bronchial asthma" is usually a self-limiting condition and that the Veteran did not have ongoing treatment for it when he separated from service. As to the examiner's opinion that the Veteran's respiratory problems are related to his chronic tobacco use, the Board notes service connection may not be considered on the basis that a lung disability resulted from injury or disease attributable to the Veteran's use of tobacco products during service. 38 C.F.R. § 3.300(a). Since the preponderance of the evidence is against the claim, the provisions of 38 U. S. C. A. 5107(b) regarding reasonable doubt are not applicable, and his claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for a respiratory condition is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs