Citation Nr: 1333343 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 07-29 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for bronchial asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from August 1986 to February 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran provided testimony before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing held at the RO in September 2011. In January 2012, the Board reopened the claim of entitlement to service connection for bronchial asthma and remanded the matter for additional development. In April 2013, the Board again remanded the matter. It has been returned for further appellate consideration. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT Bronchial asthma did not begin in service or until years after service, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for bronchial asthma have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letter dated in May 2006, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman. As to VA's duty to assist, 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 Veteran's service treatment records, VA medical treatment records, identified private treatment records, a letter from a private medical provider, and lay statements from the Veteran's wife and a friend have been obtained. Also, the Veteran was provided a VA examination in November 2012. This examination and its associated reports were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The reports were based on examination of the Veteran by an examiner with appropriate expertise who reviewed and discussed the evidence contained in the claims file. 38 C.F.R. § 3.159(c)(4) (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the AOJ has substantially complied with the Board's January 2012 and April 2013 remand instructions. The AOJ sent a letter in January 2012 requesting that the Veteran identify providers who had treated him for his asthma. In November 2012, an examination of the Veteran's bronchial asthma was performed by an examiner with appropriate expertise, and in May 2013 that examiner provided an addendum opinion adequately answering the Board's questions and specifically considering the April 2007 lay statement of the Veteran's friend, T.L.B., in doing so. Under these circumstances, the Board finds that there has been substantial compliance with its remand instructions, and an additional remand to comply with the Board's directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They 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. In this case, during the September 2011 Board personal hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. The VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed bronchial asthma, and specifically about when it was first diagnosed, when and how it was treated, and whether any in-service treatment continued after service. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of 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. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The disability at issue in this case is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). 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 is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As reflected in his testimony during his September 2011 Board hearing, the Veteran asserts that he was first diagnosed with asthma at Yokosuka Naval Hospital in Japan in the late 1980s or early 1990s, and that his asthma has continued to the present. He testified that, in service, he had numerous breathing issues and chest tightness, received medical treatment, and was prescribed Azmacort and Proventil, which he used in service and continued using after service. He further testified that during his period of service on a ship he was exposed to asbestos, although he did not know it at the time, as well as smoke, chipping paint, fumes, and cockroaches. The Veteran's service personnel records reflect that he was awarded the Southwest Asia Service Medal and Combat Action Ribbon, and that he had three years, 10 months, and 22 days of sea service. Service treatment records reflect occasional treatment for colds, viruses, and sinus problems involving coughing and breathing problems, but no diagnoses or findings indicating bronchial asthma. In August 1987, the Veteran complained of a head cold with congestion and discharge, and was diagnosed as having sinus congestion. In January 1990, he was treated for head and chest congestion and cough, and was assessed with a viral upper respiratory infection. In April 1990, he complained of sinus tenderness and head and chest congestion for seven days, and was assessed with sinus tenderness. In January 1992, the Veteran complained of symptoms including a cough, and was assessed with viral syndrome. None of these treatment records reflect any diagnosis of or treatment for asthma, including any treatment with Azmacort or Proventil. These records also reflect that the Veteran suffered a pulmonary embolism during treatment for gunshot wounds in May 1991. At that time, it was noted that the Veteran was not presently taking any medications. A July 1991 National Naval Medical Center Report of Medical Board reflects that, following surgery for his gunshot wound, the Veteran showed signs and symptoms of a probable pulmonary embolus and was treated with intravenous heparin, followed by oral Coumadin. In August 1992, the Veteran filed service connection claims for approximately eight disabilities, including for pulmonary embolus; no claim was filed for bronchial asthma. Such claims were adjudicated in an August 1992 rating decision. The earliest indication of asthma in the record is the report of a January 2002 VA examination. At the time of the examination, the Veteran gave a history of asthma, stated that he used inhalers, and complained of shortness of breath on exertion. It was noted that he used Pulmicort and Proventil inhalers. The diagnosis was bronchial asthma. March 2006 VA hospital records reflect that the Veteran was assessed as having marijuana dependence, that he reported smoking at least three joints daily, and that he reported smoking one pack of cigarettes per day for 20 years. Subsequent March 2006 VA treatment records reflect that the Veteran reported a history of asthma since the 1980s manifesting as fatigue and chest tightness upon exposure to dust and cold air in the morning. During May 2007 VA treatment, the Veteran reported being initially diagnosed with asthma in 1989. The Veteran submitted an orthopedic evaluation dated in February 2007 from Dr. E.M. Dr. E.M. noted that the Veteran reported increased episodes of asthma, more difficulty breathing at night, and sensitivity to seasonal allergens, temperature changes, and stuffy rooms. Dr. E.M. also noted the Veteran's asthma, as well as numerous other orthopedic and psychiatric conditions, and stated, "It is my considered opinion that the [Veteran's] above diagnoses are causally related to his service related impairment and injuries." The Veteran also submitted a statement from Dr. L.H., dated in April 2007. Dr. L.H. reported that the Veteran was a patient of her office from April 1999 to May 2004, and that, during this time, he suffered from conditions including asthma. She further stated that the Veteran's asthma dated back 10 years prior to his first visit to her office, and that he was treated with steroid inhalers. The Veteran further submitted statements from his wife and his friend, T.L.B., both dated in April 2007. In her statement, the Veteran's wife asserted that the Veteran suffered blood clots to the right lung in service, which gave him trouble breathing in the form of asthma. In her statement, T.L.B. asserted that she met the Veteran in October 1987 in Yokosuka, Japan, and lived with him for four and a half years. She stated that, during her time with the Veteran, she was immediately aware of his sinus and asthma problems, and that he was diagnosed with asthma at the Yokosuka Naval Hospital and was told that his condition was probably caused by the poor air quality on board his ship. T.L.B. also asserted that his condition was constant, that he had many sleepless nights because he was unable to breathe due to congestion or constant wheezing, and that, as the years past, his conditions became worse. T.L.B. stated that the Veteran was constantly buying over the counter medications to mange his discomfort, which allowed him to perform his daily routine, and that she asked him to go to sick call many times but he refused to do so, choosing to deal with his discomfort. The report of a June 2007 VA examination reflects that the Veteran reported smoking less than one pack per day of cigarettes for approximately 10 years and denied any history of illicit drug use. He reported that he was diagnosed with bronchial asthma in 1989 at Yokosuka Hospital in Japan. May 2009 VA treatment records reflect that the Veteran reported that he started smoking cannabis at age 17 and was currently smoking every day. His diagnosis was cannabis dependence. May 2010 VA treatment records reflect that the Veteran denied emergency room visits for asthma exacerbation but felt shortness of breath frequently attributed to increased smoking. He reported smoking one pack per day of cigarettes and a history of marijuana dependence. A VA respiratory examination of the Veteran was performed by a physician in February 2012. March 2012 and May 2013 addendum reports reflect the opinion of the examining physician that the Veteran's asthma was less likely than not incurred in or caused by service. The physician stated that the service treatment records did not mention or refer to the Veteran having asthma or any respiratory disorder, with the exception of an acute pulmonary embolus sustained while he was hospitalized and treated for a gunshot wound. The physician stated that the Veteran was a smoker of tobacco and marijuana, which were both known respiratory irritants that increased the risk of developing chronic pulmonary disease including asthma. The physician further stated that the April 2007 statements of the Veteran's wife and T.L.B. were reviewed. The physician noted that pulmonary emboli could cause acute bronchospasm, which was most likely what would have been observed by a witness, and not asthma. The physician explained that the Veteran experienced a pulmonary embolism while hospitalized for a gunshot wound, but that this was the only reference to any lung condition in the service treatment records. The physician further noted that the report of the National Naval Medical Review Board for discharge did not include asthma as a medical condition at that time, and that, in addition, there was no evidence of the Veteran being treated for asthma while in service. The VA physician stated that a diagnosis was documented in January 2002 based on pulmonary function tests, and that, because of the lack of medical evidence in the record that the Veteran had asthma while in service, even considering the lay statements asserting that the Veteran was observed to have had some respiratory symptoms, it was less likely than not that the Veteran's current asthma was related to military service, and more likely that it was due to chronic irritation from cigarette and marijuana smoke for many years. Considering the pertinent evidence in light of the governing legal authority, the Veteran's service connection claim must be denied. Despite the Veteran's assertions that he was first diagnosed with asthma at Yokosuka Naval Hospital in Japan in the late 1980s or early 1990s, that he was prescribed Azmacort and Proventil at that time, and that his asthma and use of medication for asthma had continued from service to the present, the weight of the evidence in this case reflects that bronchial asthma did not begin in service or until years after service, and is not otherwise related to service. Initially, the Board notes that the Veteran was awarded the Combat Action Ribbon, and is therefore considered to have engaged in combat with the enemy in active service. However, the Veteran has not asserted that his asthma was incurred in combat; rather, he has asserted that he was originally diagnosed with and treated for asthma at Yokosuka Naval Hospital in Japan in 1989 or 1990. Thus, his statements regarding incurrence of bronchial asthma are not presumed to be credible under 38 U.S.C.A. § 1154(b). The Veteran's service treatment records do not support his assertion of diagnosis of and treatment for asthma in service. Despite the existence of numerous treatment records, which reflect periodic treatment for respiratory problems associated with colds, sinus problems, and acute viruses and upper respiratory infections, as well as treatment for a pulmonary embolism associated with treatment for gunshot wounds, such records contain no diagnoses of or treatment for asthma, including with medication such as Azmacort and Proventil. In this regard, the Board notes that the Veteran filed a service connection claim for pulmonary embolus, and is currently service connected for sinusitis. The fact that no bronchial asthma is documented in these treatment records weighs against the Veteran's claim. Also, the fact that the Veteran filed service connection claims for approximately eight disabilities in August 1992, including for pulmonary embolus, but not for bronchial asthma, weighs heavily against the credibility of his assertions that bronchial asthma was initially diagnosed in service, that he was treated with Azmacort and Proventil, and that such treatment continued after service. In this regard, the Veteran's inconsistent accounts of his smoking and marijuana use history further diminish his credibility in this case. In March 2006 he reported smoking at least three joints daily and smoking one pack of cigarettes per day for 20 years, in May 2009 he reported that he started smoking cannabis at age 17 and was currently smoking every day, and in May 2010 he reported smoking one pack per day of cigarettes and a history of marijuana dependence. However, on the June 2007 VA examination in connection with his claim for benefits, he reported smoking less than one pack per day of cigarettes for approximately 10 years and denied any history of illicit drug use. Furthermore, while the record contains conflicting medical opinions regarding the matter, the Board finds that the weight of the competent and probative evidence is against a finding that the Veteran's asthma began in or is related to service. Specifically, the Board finds that the opinion of the November 2012 VA examining physician heavily outweigh the February 2007 opinion of Dr. E.M. and April 2007 opinion of Dr. L.H. The April 2007 opinion of Dr. L.H. that the Veteran's asthma dated back 10 years prior to his first visit to her office in April 1999 appears to be mere recitation of the Veteran's own given history of the onset of his asthma. There is no indication that Dr. L.H. reviewed any pertinent medical records, and she provided no rationale or explanation whatsoever for the opinion, even though she reportedly only began treating the Veteran in April 1999. In this regard, Dr. L. did not provide any treatment records during this period beginning in April 1999 that might indicate that the Veteran reported such a history from the beginning of his treatment, and the Veteran has not submitted or authorized VA to obtain any such records. Evidence that is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1996). Thus, the Board affords the opinion of Dr. L.H. very little probative weight. Likewise, the February 2007 opinion of Dr. E.M. that, regarding numerous orthopedic and psychiatric diagnoses, including asthma, it was his "considered opinion that the [Veteran's] above diagnoses are causally related to his service related impairment and injuries" is supported by no explanation whatsoever. Furthermore, there is no indication of what, if any, records were reviewed by Dr. E.M., or that, in providing this opinion, Dr. E.M. was even referring to the Veteran's asthma specifically, or to what "service related impairment and injuries" he referred. The Board therefore finds this opinion to be of little, if any, probative value. Conversely, the Board finds the opinion of the VA examining physician, that the Veteran's asthma was less likely than not incurred in or caused by service, to be highly probative. The opinion was provided by an examiner with appropriate expertise who thoroughly examined Veteran and reviewed and considered the evidence contained in the claims file, including the April 2007 lay statements of the Veteran's wife and T.L.B. Also, the VA physician provided a thorough, clear, and persuasive rationale that the Veteran's current asthma was more likely due to chronic irritation from cigarette and marijuana smoke for many years, which increased the risk of developing chronic pulmonary disease including asthma, particularly considering the absence of any diagnoses or treatment relating to asthma in service or until years after service. This explanation is consistent with the record, which, as explained above, reflects that asthma was not diagnosed or treated until many years after service, that in May 2006 the Veteran reported a 20 year history of smoking about a pack per day and continued to smoke thereafter, and that he had a history of smoking marijuana from the age of 17, which was reportedly three joints per day in May 2006. Thus, the Board finds that the competent and probative medical evidence weighs heavily against a finding that bronchial asthma began during, or is otherwise related to, service. The Board notes the April 2007 statements from the Veteran's wife and T.L.B. Regarding T.L.B.'s assertions that the Veteran was diagnosed with asthma at the Yokosuka Naval Hospital, that his condition caused many sleepless nights, that he was constantly buying over the counter medications to mange his discomfort, and that she asked him to go to sick call many times but he refused to do so, the Board finds them not to be credible. The Board finds the assertion that the Veteran was diagnosed with asthma at the Yokosuka Naval Hospital is not credible for the same reasons that the Board finds the Veteran's assertions of the same not credible, as discussed above. The other assertions indicating that the Veteran suffered severe breathing symptomatology but did not seek medical attention and instead self-medicated are not credible given the numerous treatment records reflecting that the Veteran sought treatment for acute coughs, colds, congestion, and other such symptoms and medical problems. Moreover, even if the Board were to find the statements of T.L.B. and the Veteran's wife to be credible, neither is competent to determine that the Veteran had asthma during his period of service. T.L.B. and the Veteran's wife are competent to report matters within their own personal knowledge. See Layno, 6 Vet. App. at 469. Also, lay evidence can be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr, 21 Vet. App. at 308-09. However, whether the Veteran had the medical disorder of bronchial asthma during his period of service is a determination that is medical in nature, and therefore one that requires medical expertise to make. Even to the extent that Veteran's asthma might have been capable of lay observation, the statements of T.L.B. and the Veteran's wife were specifically considered by the VA examining physician in determining, nonetheless, that it was less likely than not that the Veteran's current asthma was related to military service and more likely due to chronic irritation from cigarette and marijuana smoking for many years. In this regard, the Board would find that the expert opinion of the VA physician greatly outweighs any opinion of T.L.B. or the Veteran's wife regarding the onset and etiology of the Veteran's bronchial asthma. Finally, to the extent that the Veteran might assert that his bronchial asthma is the result of any kind of in-service exposure to inhalants or is otherwise related to service, the Board does not find any such assertion to be competent or significantly probative evidence. A lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau, 492 F.3d 1372. However, again, the question of causation in this case extends beyond an immediately observable cause-and-effect relationship, and is one that requires medical expertise to answer. Therefore the Veteran is not competent to make such a determination regarding medical nexus. Furthermore, to the extent that the Veteran might be considered at all competent to make any such determination, the Board would find this opinion to be heavily outweighed by the expert medical opinion of the VA examining physician, which, for the reasons discussed above, the Board finds persuasive. Accordingly, service connection for bronchial asthma must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for bronchial asthma is denied. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs