Citation Nr: 1336205 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-24 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for asthma with bronchitis. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from March 1966 to October 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which declined to reopen the Veteran's claim of entitlement to service connection for bronchial asthma. On his Form 9, Substantive Appeal, the Veteran requested a Board hearing at the local VA office, before a Veterans Law Judge. A hearing was scheduled for September 1, 2011. The Veteran withdrew his request for the hearing on August 29, 2011. The Veteran has not requested a rescheduling of the hearing. Under these circumstances, VA considers the hearing request to have been withdrawn. See 38 C.F.R. § 20.704(e) (2012). In August 2012, the Board found that new and material evidence had been received to reopen the previously denied claim and remanded the underlying claim for additional development. Specifically, the Board instructed that the Veteran be provided with a VA examination to determine the nature and etiology of his claim. He underwent such an examination in August 2012. In May 2013, the Board remanded the matter again in order to obtain an addendum medical statement from the August 2012 VA examiner, and the record reflects that such a statement was obtained in July 2013. As there has been compliance with the Board's remand directives, no further action is required and the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's electronic claims file to ensure a total review of the evidence. FINDINGS OF FACT 1. The evidence of record establishes that the Veteran had an asthma disorder which clearly and unmistakably existed prior to his period of service. 2. The medical evidence clearly does not show that the Veteran's pre-existing asthma disorder was permanently aggravated beyond the natural progression of the disease during his period of service. CONCLUSION OF LAW The criteria for service connection for asthma with bronchitis have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, a January 2008 letter provided the Veteran with proper notice, including of what was necessary to establish the underlying claims of service connection on both a direct and secondary basis, and of his and VA's responsibilities in claims development as well as notice requirements under Dingess. VA has thereby met its obligations to notify the Veteran of the medical and other evidence needed to substantiate his claim and of what evidence he is responsible for obtaining. Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, his lay statements of argument, and identified VA and private treatment records have been obtained. Pertinently, the Veteran has not indicated that any other VA treatment reports relevant to his asthma disorder currently exist, nor has he requested that the VA attempt to obtain any other private treatment records. The Board acknowledges that the Veteran identified treatment at the VA medical facility in Portland, Oregon. The AMC sought to obtain any outstanding records of pertinent treatment from that facility, but a September 2013 negative response from that VA medical facility reflects that the Veteran has not sought treatment at that facility. As such, any further attempts to obtain records from that facility would be futile and no further actions are needed. VA has provided the Veteran with an August 2012 VA examination and a July 2013 addendum medical opinion from the August 2012 VA examiner has been obtained. The 2013 addendum medical opinion report demonstrates that the VA examiner reviewed the evidence of record and rendered appropriate opinion based on the questions presented by the Board. The VA examiner's opinion was rendered after a thorough review of the claims file and is supported by the evidence of record. Therefore, the Board finds that the evidence of record is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 [affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim]. The Board acknowledges that a review of the record reflects inadequate findings from the pulmonary function test afforded to the Veteran at the time of the August 2012 VA examination. In fact, both the VA examiner (a nurse practitioner) and the Veteran questioned the adequacy of the PFT results based on the questionable conduct of the pulmonologist when administering the test. That being said, the August 2012 VA examiner specifically noted that the findings from the PFT did not affect her opinion on the etiology of the Veteran's diagnosis nor the issue of aggravation of such disorder from active service. Essentially, the PFT findings are only relevant for evaluating the severity of the Veteran's asthma disorder, and are inconsequential to the questions of nature and etiology of his asthma. See the August 2012 VA examination report, page 17. Since the VA examiner found that she could adequately provide a medical opinion on the etiology of the Veteran's asthma disorder without PFT results, the Board finds that there was no reason to afford the Veteran with another PFT. Pertinently, the Veteran has not question the professionalism of the VA nurse practitioner who prepared the VA examination report and provided the medical conclusions. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions with respect to the issues on appeal have been met. 38 C.F.R. § 3.159(c)(4). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of these issues has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103. He has retained the services of a representative, and he testified before a Veterans Law Judge, who has since retired from the Board. The Veteran has declined the opportunity to testify before the undersigned Board member. 2. Service Connection 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 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). 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, 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 evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Essentially, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. VA's Office of General Counsel has issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks entitlement to service connection for bronchial asthma. He asserts that his current asthma disorder had an onset in service, and he denies any history of asthma prior to his entrance into service. He reports that prior to his enlistment he did have sinus headaches with drainage approximately once a year, but he denies any symptoms of asthma, shortness of breathe, or constriction after activity prior to his enlistment. He reports that he completed boot camp without any incident, but during his advanced infantry training, he was exposed to extreme elements and he developed a "severe bronchial asthma infection." Reportedly, he continued to participate in physical training in extreme weather conditions until he was no longer able to maintain the training requirements. He was then evaluated and diagnosed with asthma, and subsequently discharged for the medical reasons. See statements from the Veteran dated in January 2008 and July 2013 as well as the Veteran's reported history recorded in the report of an August 2012 VA respiratory examination, pages 2 to 4. The Veteran reports that he continued to seek treatment for bronchial infection shortly after service until it resolved. Since his separation from service, the Veteran reports that he would have occasional attacks where he would have constriction and wheezing, for which he was sometimes treated with antibiotics, but he otherwise self-treated his symptoms with ibuprofen, orange juice, and hot tea. He denied any chronic medication to treat his symptomatology. See Id. The record also contains statements from the Veteran's sister and aunt, in which they both attest that the Veteran was not diagnosed with asthma nor did he experience the symptoms associated with asthma prior to his enlistment into service. See January 2008, August 2011, and July 2013 statements submitted by the Veteran's sister and March 2008, August 2011 and July 2013 statements from the Veteran's aunt. The Veteran's December 1965 report of medical history at his enlistment into service shows he marked positive indications of having had whooping cough, shortness of breath, and incidents of coughing up blood, among other issues, but he indicated no history of asthma. His enlistment physical examination report shows his lungs and chest were evaluated as normal and there were no defects discovered; he was considered fit for military service. On May 14, 1966 and May 23, 1966, the Veteran was treated for stuffed nose, sore throat, cough and chest pains at sick call. In September 1966, the Veteran's treatment records indicated a complaint of bronchitis and a history of pneumonia approximately eight weeks prior. The treatment note indicated a question as to whether the Veteran was asthmatic and he was advised to consult with the chest clinic. The chest clinics consultation report documents a history of wheezing and cough. A pulmonary function test was scheduled and conducted in September 1966. The Veteran's case was then reviewed by a medical board that same month. A September 1966 medical board report reflects that the Veteran had approximately six months of active military service and a six year history of wheezing and coughs with intermittent sputum production. The report indicated that a "physical examination was essentially negative except for recent episodes of bronchitis, cough, wheezing and yellow sputum product." The report stated that discharge was recommended by the examining physician in September 1966. The Veteran was considered unfit for duty due to asthma with bronchitis which existed prior to entry, was not aggravated by service nor incurred in the line of duty. The probable future duration of his condition was considered to be permanent. The medical board concluded that the Veteran did not meet the minimum standards for enlistment, and it was recommended that he be discharged with a diagnosis of asthma with bronchitis, without service aggravation. The Veteran originally filed a claim for service connection for asthma condition in May 1976. On his application, the Veteran indicated that he had been treated for asthma condition during his period of service and he had seen a medical provider in May 1976 for his asthma problems. The Veteran's claim was denied in a November 1976 rating decision because the evidence of record showed that his condition existed prior to service and was not aggravated by his period of service. The record does not contain any post-service medical treatment records until 2008. The Veteran has reported that he sought private medical treatment shortly after his separation from service for a respiratory infection and he was been periodically treated with antibiotics over the years during flare-ups of symptomatology. The Veteran has not indicated that those records are available. Moreover, in response to the AMC's July 2013 request for his assistance in obtaining any outstanding treatment records, the Veteran only identified treatment at VA medical facilities. VA treatment records have been obtained from the VA medical facilities in Eugene and Roseburg, but the VA medical facility in Portland responded that the Veteran had not been treated at that facility. A January 2008 VA treatment record noted that the Veteran presented to initiate his care with VA. The Veteran underwent a general medical physical evaluation. The treatment note shows that he denied any respiratory symptoms of dyspnea, wheezes, or cough. He reported a history of fluid build-up in his right lung in 1997 which resulted in scar tissue and diminished function according to a pulmonologist. He also reported a history of acute bronchial asthma and infection in 1966. Lung fields were clear and there was no evidence of poor respiratory effort on clinical evaluation. No abnormal respiratory findings were observed in May 2010 either. Pursuant to the Board's August 2012 remand directives, the Veteran underwent a VA respiratory examination to determine the nature and etiology of his asthma disorder. The August 2012 VA examination report shows that the VA examiner noted that she reviewed the claims folder, including the Veteran's service treatment records and medical records, and she recorded the Veteran's reported medical history. The examiner diagnosed with the Veteran with asthma. The VA examiner provided medical opinion regarding the etiology of the Veteran's asthma disorder, but the Board previously found that the examiner had used incorrect terminology in that medical conclusion and sought an addendum medical statement. In July 2013, an addendum medical opinion report was obtained from the VA examiner who conducted the August 2012 VA examination. The VA examiner again noted that she had reviewed the claims folder, including the Veteran's service treatment records and medical records, as well as the Veteran's reported medical history. Based on a review of the record, the VA examiner concluded that there was objective evidence in the service treatment records that clearly and mistakably showed the Veteran had a pre-existing asthma condition. In support of this medical conclusion, the VA examiner noted that on the Veteran's December 1965 enlistment medical history report, he reported a positive history of dyspnea with running one mile as well as sinusitis and the September 1966 chest clinic consultation report showed that the Veteran was being evaluated for "Recurrent episodes of cough and wheezing for six years." The VA examiner concluded that these medical records clearly show asthma-like symptoms occurring well before entry into service. The VA examiner then concluded that there was clear and unmistakable evidence that the Veteran's pre-existing asthma condition was not permanently aggravated by his period of service. In support of this medical conclusion, the VA examiner noted that the Veteran was treated for pneumonia and bronchitis in the service, but these conditions were acute and transitory infections that typically resolved with adequate treatment and there was no medical evidence of record to indicate otherwise. The VA examiner further noted that the post-service medical records showed no objective evidence for signs, symptoms, complaints, diagnosis, and treatments of a chronic or acute pulmonary complaint until after 2007. The VA examiner concluded that evidence clearly and unmistakably showed the Veteran's pre-existing asthma condition was not permanently aggravated by his period of service. Initially, the Board notes that the Veteran's December 1965 entrance physical examination report shows his lungs and chest were evaluated as normal and there were no defects discovered. As no abnormality was recorded on the Veteran's enlistment physical, he is presumed to have been in sound condition unless there is evidence that clearly and unmistakably shows that the Veteran had a respiratory or asthma condition which existed prior to service. In this case, the Board concludes that it does. Again, the Veteran clearly marked on his December 1965 enlistment medical history report that he had experienced whooping cough, shortness of breath, and incidents of coughing up blood, among other issues. Although he denied a history of asthma at that time, in the September 1966 treatment note, it was questioned whether he was asthmatic. In addition, the September 1966 medical board report reflects that the Veteran had provided a six year history of wheezing and coughs with intermittent sputum production. The September 1966 examining physician concluded that the Veteran's asthma with bronchitis existed prior to entry. Similarly, the July 2013 VA examiner concluded that this evidence documented in the Veteran's service treatment records clearly and unmistakably showed his asthma condition existed prior to his enlistment into service. The July 2013 VA medical opinion is highly probative in that it is well-reasoned, based on current medical knowledge, and grounded in the facts that are specific to the Veteran's case. Moreover, the VA examiner's conclusion has not been questioned by any competent evidence on the subject. As such, this opinion is entitled to great weight. The Board has considered the Veteran's lay assertions that he did not have any asthma symptoms or diagnosis prior to his enlistment into service. The Veteran denies having a history of asthma symptoms, shortness of breath, or constriction, prior to his enlistment into service. See statements from the Veteran dated in January 2008 and July 2013. The Veteran, as a lay person, is competent to report what comes to him through his senses, and he is able to competently report the onset symptoms such as respiratory problems. See Layno v. Brown, 6 Vet. App. 465 (1994). Here, the Board finds, as noted above, that statements by the Veteran regarding lack of breathing problems prior to service are less than credible. In this regard, the December 1965 report of medical history shows that the Veteran clearly marked a positive history of shortness of breath among other respiratory problems prior to his enlistment. Also, the September 1966 medical board report shows that the Veteran had reported a six year history of wheezing and coughs with intermittent sputum production. These records prior to the Veteran's entrance and during his period of service, clearly contradict his more recent assertions that he had never experienced shortness of breath and other breathing problems prior to his enlistment. Similarly, the statements from the Veteran's aunt and sister lacking in credibly as the medical documents clearly show the Veteran reported that he had experienced shortness of breath and other breathing problems prior to his enlistment into service. The Board does acknowledge the possibility that the Veteran, his aunt, and his sister may sincerely believe that his previous respiratory problems prior to his enlistment are wholly different from the symptomatology currently associated with his bronchial asthma. However, the Veteran, his aunt and his sister lack the medical training and expertise to provide a complex medical opinion as to the etiology of a particular respiratory disorder, as this is not something that a lay person can readily perceivable, but rather requires knowledge of the internal workings and pathology of the respiratory system. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Here, the service treatment records suggest that the Veteran asthma symptomatology existed prior to service, and the VA examiner, in an uncontradicted medical opinion, concluded that the evidence of record clearly and unmistakably showed that the Veteran's asthma disorder existed prior to service based on the nature and extent of symptoms he reported experiencing prior to service. As such, the Board concludes that the evidence of record clearly and unmistakably establishes the fact that the Veteran's asthma disorder existed prior to his period of service. As noted, the Veteran's enlistment examination did not disclose a pre-existing asthma condition, and he was therefore presumed to have entered service in sound condition. 38 U.S.C.A. § 1111. However, the evidence has established that the Veteran's asthma disorder clearly and unmistakably existed prior to service. Thus, the issue on appeal becomes whether it is clear and unmistakable that the Veteran's pre-existing asthma disorder was not aggravated during service. 38 U.S.C.A. § 1111. Here, both the September 1966 medical board examiner and the VA examiner addressed the question of aggravation. The September 1966 medical board examiner concluded that the Veteran's asthma with bronchitis was not aggravated by service but his condition was considered to be permanent. Following an examination of the Veteran and a comprehensive review of the claims folder, the VA examiner in the September 2013 addendum medical statement opined that the Veteran's asthma disorder was clearly and unmistakably not aggravated by any in-service injury, event, or illness. The examiner acknowledged the Veteran's in-service treatment for pneumonia and bronchitis; however, the examiner noted that both of those infections were acute and transitory in nature, and resolved with treatment. The VA examiner further noted that there was no post-service evidence of signs, symptoms, complaints, diagnosis, and treatments of a chronic or acute pulmonary complaint until after 2007 to reflect permanent aggravation due to any illness or injury in service. Moreover, the Veteran has reported that his acute infections that he acquired in service resolved shortly after his separation from service. When rendering this opinion and providing rationale to support it, the VA examiner was fully aware of the Veteran's reported medical history and considered his reports in conjunction with a review of the medical evidence. Thus, the Board finds the VA examiner's 2013 opinion to be highly probative evidence and entitled to great weight. Additionally, the examiner's opinion is not contradicted by any medical evidence. It is therefore found to be the most probative evidence of record. While the Veteran has expressed his belief that his asthma disorder was the result of his period of service, either by way of in-service injuries or by way of aggravation of his pre-existing condition, he is not medically qualified to render an opinion as to whether his current asthma disorder was permanently aggravated beyond its natural progression by his military service. See Jandreau, 492 F. 3d at 1372. Consequently, his statements, without some form of objective medical corroboration, are not deemed to be of significant probative value. As described, the evidence of record shows clearly and unmistakably shows that the Veteran had an asthma condition which existed prior to service, and the evidence clearly and unmistakably establishes that the pre-existing asthma disorder, while temporarily affected by in-service pneumonia and bronchitis, was not permanently aggravated by the Veteran's military service. As such, the presumption of soundness has been rebutted and the Veteran's claim for service connection for asthma disorder is denied. ORDER Entitlement to service connection for asthma with bronchitis is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs