Citation Nr: 1336625 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 10-25 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), asthma, pulmonary fibrosis, pneumoconiosis, and pneumonia. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran had active service from February 1953 to February 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Although the RO framed the issue on appeal as entitlement to service connection for pneumonia, a review of the record indicates that the Veteran was also diagnosed with COPD, asthma, pulmonary fibrosis, and pneumoconiosis. The United States Court of Appeals for Veterans Claims (Court) addressed the scope of claims generally in regard to what is claimed versus what should be addressed by VA. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons and the varying diagnoses recounted above, the Board has recharacterized the issue as stated on the title page of this decision. This will provide the most favorable review of the Veteran's claim for a respiratory disability in keeping with the Court's holding in Clemons. According to the June 2010 substantive appeal, the Veteran requested to be scheduled for a hearing before the Board at the RO. He was scheduled to testify at a Travel Board hearing on June 6, 2013. A notice of the hearing was sent to the Veteran in May 2013. However, the Veteran failed to appear for the hearing. As such, without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d) (2013). This matter was previously remanded by the Board in July 2013 for further development of the issues on appeal. The AMC has undertaken efforts to comply with the action directed in the Board's remand and this matter now returns to the Board for its de novo consideration. The AMC obtained the Veteran's updated VA outpatient treatment records and obtained an additional VA examination opinion. As such, the Board finds that there has been substantial compliance with the directives of the July 2013 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent medical evidence of record does not show that the Veteran has a respiratory disorder, to include COPD, asthma, pulmonary fibrosis, pneumoconiosis, and pneumonia that was caused or aggravated by military service. CONCLUSION OF LAW Service connection for a respiratory disorder, to include COPD, asthma, pulmonary fibrosis, pneumoconiosis, and pneumonia is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Under the Veterans Claims Assistance Act of 2000 (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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (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). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The RO informed the Veteran of VA's duty to assist him in the development of his claim in a letter dated August 2008, that contained all of the required notice. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs), VA outpatient treatment records, and private treatment records have been obtained and associated with the claims file. The duty to assist also includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records and relevant social security administration (SSA) records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). Although the Veteran had previously indicated that SSA may have records relevant to his pending claim, the RO was unable to obtain them. The RO documented the attempts to retrieve the Veteran's SSA records as well as the SSA response that such records had been destroyed and were no longer available in a September 2009 memorandum. The Veteran was notified of this in October 2009 and requested to provide any records in his possession. To date, nothing further has been submitted. Additionally, VA provided the Veteran with medical examinations that were adequate because the examiner reviewed the claims file, took a full medical history, conducted the appropriate diagnostic testing, and provided rationales for the ultimate medical opinions. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. Legal Criteria 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, 1131; 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Background The Veteran contends that his currently diagnosed respiratory conditions are the result of respiratory symptoms treated while he was in military service. In particular, the Veteran has stated that he was treated for his condition at Fort Carson, Colorado. A review of the Veteran's STRs show that, on the Veteran's February 1952 entrance examination, the Veteran reported a complaint of shortness of breath with no significant abnormality upon entering service. He also indicated working as a machine operator three years prior to service. Additionally, STRs revealed that the Veteran was treated for symptoms of hoarseness, a cough, and a fever that was later diagnosed as acute tonsillitis and probable sinusitis. In April 1953, the Veteran was hospitalized at Fort Carson for an upper respiratory infection. On the Veteran's February 1955 separation examination, the Veteran indicated that he had experienced frequent colds, but no lung conditions were indicated. A review of the Veteran's private treatment records reveal that the Veteran has been treated for several respiratory conditions. In July 2007, a cytology report showed broncheoalveolar lavage with clusters of atypical glandular cells. In January 2008, the Veteran was diagnosed with COPD and pneumoconiosis. It was also indicated that the Veteran had a history of asthma and pulmonary fibrosis. There was no opinion provided regarding the etiology of these conditions or their relationship to the Veteran's military service. A review of the Veteran's VA outpatient treatment records also show that the Veteran has been treated for asthma. He has been provided medication to treat this condition on a regular basis. However, there was no opinion provided regarding the etiology of the Veteran's asthma or its relationship to the Veteran's military service. The Veteran was provided with a VA examination in April 2009. At this examination, the examiner noted the Veteran's history of respiratory complaints in service. It was also noted that the Veteran had worked in industrial occupations both prior to and after service. The VA examiner diagnosed the Veteran with asthma, pulmonary fibrosis, and pneumoconiosis. The examiner opined that none of these conditions were caused or aggravated by the Veteran's military service. Additionally, the examiner provided that pneumoconiosis was not indicated in the Veteran's service treatment records and that the Veteran had worked as a machine operator and in drywall construction for 55 years post-service. The examiner stated that pneumoconiosis was caused by the inhalation of industrial dust and indicated that it was more likely that the Veteran's post-service occupational exposure was the cause of his current pneumoconiosis. The Veteran was provided with an additional VA opinion in September 2013. Upon reviewing the Veteran's claims file, the examiner opined with regard to the Veteran's asthma, COPD, and pulmonary fibrosis that these conditions were not caused or aggravated by the Veteran's military service. Rather, the examiner found that these conditions were more consistent with the inhalation of industrial dust that the Veteran had experienced for 55 years post-service. Further, the examiner provided that there was no indication of the presence of these conditions in the Veteran's STRs. Analysis Based upon the evidence of record, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for a respiratory disorder, to include COPD, asthma, pulmonary fibrosis, pneumoconiosis, and pneumonia, so the appeal must be denied. The evidence does show that there is a current disability for VA purposes, as there is evidence that the Veteran's has been diagnosed with COPD, asthma, pulmonary fibrosis, and pneumoconiosis. Also, although it is conceded that the Veteran experienced respiratory problems in service, STRs appear to indicate that such complaints were acute and did not manifest into long-standing illness. Moreover, private treatment records and VA outpatient treatment records did not provide any positive etiology opinions for any of the Veteran's current respiratory conditions relating them to military service. Additionally, the Veteran was employed in occupational environments that would have been particularly conducive to the development of the types of respiratory conditions for which he is currently diagnosed. In this regard, the VA examiner provided a negative nexus opinion for the Veteran's respiratory conditions on the bases that there was no indication of these conditions in military service and that the post-service occupation for 55 years was more likely the cause. In light of these facts, the medical evidence of record does not indicate that the Veteran's respiratory conditions were caused or aggravated by his military service. In reaching its decision, the Board has carefully considered the statements the Veteran has presented on his own behalf. The Board finds that the Veteran is competent to attest to his observations of his disorder, such as the symptoms he experienced in service and after his separation from service. However, as a lay person, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder (i.e. that he currently has a respiratory disorder related to the symptomatology he had while on active duty) because he does not have the requisite medical expertise. See, e.g., See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Accordingly, his assertions can be given minimal probative value and are outweighed by the remainder of the evidence of record, as discussed above. ORDER Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), asthma, pulmonary fibrosis, pneumoconiosis, and pneumonia is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs