Citation Nr: 1333120	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  04-38 836	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to service connection for a breathing disability, claimed as asthma but diagnosed as reactive airway disease (RAD), to include as secondary to service-connected posttraumatic stress disorder (PTSD.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Michel, Associate Counsel
INTRODUCTION

The Veteran served on active duty from February 1967 to April 1970. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. 

The Veteran presented testimony at a Travel Board hearing in September 2006 which was chaired by an Acting Veterans Law Judge (AVLJ).  A transcript of that hearing has been associated with the Veteran's claims file.  In a March 2013 letter, the Veteran and his representative were notified by the Board that the AVLJ who conducted the September 2006 hearing was no longer employed by the Board, and if the Veteran requested another hearing before a Veterans Law Judge, he was to respond within 30 days from the date of the letter.  A review of the record reveals that neither the Veteran nor his representative has requested hearing before another Member of the Board.  As such, the Board will proceed with review of the case.  See 38 C.F.R. § 20.707. 

In December 2007, August 2010, May 2012, and May 2013, the Board remanded the case for further evidentiary development. The case has now been returned to the Board for further appellate action. 

The Board notes that it has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system.


FINDING OF FACT

The Veteran's reactive airway disease (RAD) is related to his period of active service.



CONCLUSION OF LAW

Reactive airway disease (RAD) was incurred in service.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also 73 Fed. Reg. 23,353 -23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper 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.  Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal.  A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

Given the favorable disposition of the claim for service connection for RAD; the Board finds that all notification and development actions needed to fairly adjudicate this claim has been accomplished as to this issue.




Law and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Establishing service connection generally requires (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 evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

Factual Background and Analysis

The Veteran contends that in January 1970 he was on patrol during his service in the Republic of Vietnam and experienced an episode in which he had problems breathing.  He was medivaced to a hospital in DaNang where he was hospitalized and treated with antibiotics.  The doctors advised him that he had contracted a bacterial infection in his right lung but they were not sure what kind.  

At the outset, the Board notes that the Veteran claimed entitlement to service connection for a breathing problem on a direct basis, and in the alternative, on a secondary basis as related to his service-connected posttraumatic stress disorder (PTSD).  Based on the Board's finding that service connection is warranted on a direct basis, the decision that follows does not contain discussion of secondary service connection. 

Service treatment records show that the Veteran was hospitalized for four days in June 1968 for treatment of hives and that, approximately three weeks prior to the onset of hives in late June 1968, the Veteran had been given a course of oral penicillin for bronchitis.  However, the June 1968 treatment for bronchitis occurred stateside.  The records also show that the Veteran was treated for a cold in November 1968 and for dyspnea in July 1969.

The Veteran was thereafter afforded a VA examination in October 2012 to determine the etiology of his claimed asthma.  However, the Board found the opinion offered during this examination to be inadequate for adjudication purposes as it was speculative, general, or inconclusive and was based on the absence of treatment.  Moreover, no clarifying opinion was rendered by the VA examiner following pulmonary function testing (PFT).

In response to the Board's May 2013 remand, the same VA examiner who conducted the October 2012 examination submitted an addendum opinion in May 2013 in which she stated that after reviewing the claims file and all documentation available, there was documentation in July 1967 which showed the Veteran had recurrent bronchitis, angioedema, and dyspnea.  The VA examiner opined that after reviewing the pulmonary function test which showed that the Veteran did not meet the ATS criteria for asthma, rather they changed the diagnosis to RAD, that his RAD was at least as likely as not related to or caused by the same dyspnea or recurrent dyspnea that was treated while in service.

Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for RAD is warranted.  In support of this conclusion, the Board notes the Veteran's service treatment records show treatment for breathing problems.  Additionally, after review of the PFT, the VA examiner found that RAD was at least as likely as not related to or caused by the same dyspnea or recurrent dyspnea that was treated while in service. 

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one that exists because an approximate balance of positive and negative evidence which does satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  38 C.F.R. § 3.102.  See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Thus, affording him the benefit of the doubt, the Board concludes that the criteria for service connection for RAD have been met. 


ORDER

Entitlement to service connection for reactive airway disease (RAD) is granted.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs