Citation Nr: 1333267 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 08-16 595A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active service from February 1986 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2010, the Veteran testified at a Board hearing held by the undersigned. A transcript of the hearing is associated with the record. In December 2010, the Board remanded the claim for additional development. The Board's December 2010 remand directed additional development of claims for service connection for hypothyroidism, eczema and a headache disorder. In November 2011, the Appeals Management Center (AMC) issued a rating decision granting service connection for headaches, hypothyroidism and eczema. As the grant of service connection constituted a full grant of the benefits sought on appeal, those claims are no longer in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). FINDING OF FACT There is no competent evidence of a current asthma disability. CONCLUSION OF LAW Asthma was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by VCAA, 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 & Supp. 2012); 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 is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in January 2007. The letter informed the Veteran of what evidence was required to substantiate her claim and of the Veteran's and VA's respective duties for obtaining evidence. The letter advised the Veteran how disability ratings and effective dates are assigned. The notice was provided prior to the rating decision on appeal. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record indicates that the RO obtained all information relevant to the Veteran's claim. The service treatment records have been obtained, as well as post-service VA and private treatment records. Significantly, neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA examination in February 2011. When VA undertakes to provide a VA examination or obtain a VA examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion dated in February 2011 was adequate, considered the service treatment records, VA treatment records, and the statements of the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Furthermore, as noted, the Veteran was afforded a Travel Board hearing in June 2010. In this regard, the Board observes that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Board finds that the hearing was held in compliance with the provisions of Bryant. There was a discussion of possible evidence that could substantiate the claims, and the Veteran's testimony led to the remand for a VA examination. Further, a review of the record also reveals no assertion, by the Veteran or her service organization representative, that VA or the VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. The case was previously remanded by the Board in December 2010. The development ordered in the December 2010 remand included requesting additional information from the Veteran regarding her treatment records and affording the Veteran a VA examination. The Board is satisfied there was substantial compliance with its remand order. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained relevant records, and has provided an adequate examination to the Veteran. Neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis of Claim The Veteran asserts that asthma is related to active service. In statements in support of her claim, the Veteran noted that she was seen in sick call during service with difficulty breathing and wheezing. The Veteran testified that she has continued to have asthma symptoms since service. Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Asthma is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 Veteran had active service from February 1986 to May 2006. Service treatment records show that the Veteran reported breathing difficulties. In September 1991, the Veteran reported headaches, dizziness, confusion and shortness of breath. The Veteran was diagnosed with an upper respiratory infection. In February 1992, the Veteran reported a complaint of mild headaches, sinus drainage, difficulty breathing, wheezing, sensitive eyes and light-headedness. The Veteran reported that she had experienced the same symptoms since August 1991. The Veteran was diagnosed with fatigue, rule-out viral syndrome. The Veteran was seen several days later with a complaint of still having shortness of breath and fatigue. The Veteran was assessed with costochondritis and fatigue. A May 1995 entry in the service treatment records noted a prior medical history of asthma, resolved. A report of an April 1996 medical board examination noted a history of asthma in remission. A July 1997 record reflects that the Veteran reported sore throat, difficulty swallowing and cough. The lungs were noted as clear. A past medical history of asthma was noted. A medical assessment dated in November 1999 noted that the Veteran developed difficulty breathing in 1991 and was diagnosed with asthma. A June 2005 periodic examination shows that the Veteran reported a history of asthma, with onset in 1992 and seasonal attacks. A summary of diagnoses listed asthma. The Veteran had a VA examination in November 2005. The Veteran reported asthma since 1991. She reported that she had a cough with purulent sputum, orthopnea and shortness of breath with activities. The Veteran reported that her symptoms occurred intermittently. She reported that she visited a physician for asthma attacks once a year. The Veteran reported that she required bronchodilator by inhalation intermittently. The examination report reflects that pulmonary function tests were performed. The VA examiner noted that post-bronchodilator tests were not performed because pre-bronchodilator tests were within normal limits. The VA examiner noted that there was no discrepancy between the pulmonary function tests and the clinical examination. The VA examiner indicated that a DLCO test was not done, as the pulmonary function tests results were sufficient to evaluate the Veteran's pulmonary status. The VA examiner indicated that there was no pathology to render a diagnosis of asthma. The Veteran had a VA examination in February 2011. The VA examiner indicated that the claims file was reviewed. The Veteran reported that she started having trouble breathing in 1992. She reported that she was given breathing treatments and improved. The Veteran reported that she continued to have breathing problems intermittently and was prescribed Albuterol and Proventil. The Veteran reported that she had shortness of breath when she ran. She reported that this would occur with heat or activity. The Veteran reported that she was never diagnosed with asthma. Upon pulmonary examination, the examiner indicated that there was no evidence of abnormal breath sounds. Diaphragm excursion and chest expansion were normal. The VA examiner indicated that there was no evidence of asthma, and the Veteran's lung function was normal. The current disability requirement for service connection 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, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed her claim for service connection for asthma in November 2005. The documentation of a diagnosis of asthma during the appeal period is limited to VA outpatient records which note a prior medical history of asthma. A mere recitation of the Veteran's self-reported lay history does not constitute competent medical evidence of a diagnosis. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). The Board finds that competent evidence of a current asthma disability is not shown. Congress specifically limits entitlement for a service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). In finding no current disability, the Board has also considered the Veteran's lay statements. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that the Veteran is competent to attest to the fact that she had shortness of breath with exercise and other symptoms that may be associated with asthma. However, in this case, the criteria of Jandreau have not been met as the Board finds that asthma is too complex a medical condition for a layperson to identify or establish the diagnosis or to relate respiratory symptoms to a specific pulmonary diagnosis. Thus, a current disability has not been established through the Veteran's statements. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for asthma. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for asthma is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs