Citation Nr: 1337823 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 08-00 129A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a respiratory disorder, to include residuals of pneumonia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Service connection for residuals of pneumonia or a respiratory condition was denied therein. Service connection for bilateral hearing loss and for tinnitus was granted. Initial ratings of noncompensable and 10 percent were assigned respectively. The Veteran appealed each of these determinations. In September 2011, the Board denied an initial compensable rating for bilateral hearing loss and an initial rating in excess of 10 percent for tinnitus. These issues accordingly no longer are part of this matter. The remaining pneumonia and respiratory issue was recharcterized as set forth above and then remanded for additional development. This development has been completed or at least substantially completed. Adjudication of this matter thus may proceed if otherwise in order. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet. App. 268 (1998). No potential problems with adjudication are found at this time. Thus, the following determination is made based on review of the Veteran's paper claims file and his Virtual VA electronic claims file. FINDING OF FACT The Veteran's only current respiratory disorder is emphysema, which is not related to the respiratory problems that he incurred during service. CONCLUSION OF LAW The criteria for establishing service connection for a respiratory disorder, to include residuals of pneumonia, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 4.96, 4.97 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty of notification regarding a claim for VA benefits. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. VA must provide notice prior to initial adjudication by the agency of original jurisdiction (AOJ) of any information and any evidence not of record that is necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notification that a rating and an effective date will be assigned if service connection is granted also must be provided. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice concerning notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (overturning Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007)). None is found. Via a September 2006 letter, the Veteran and his representative were informed of the criteria necessary to establish service connection, the evidence required in this regard, his and VA's respective duties for obtaining evidence, and how VA assigns a rating and effective date if service connection is granted. This was prior to the initial adjudication by the AOJ, which in this case is the RO, in the April 2007 rating decision. The Veteran and his representative were reinformed of how VA assigns a rating via a May 2008 letter. They further were reinformed of the same as well as how VA assigned an effective date if service connection were granted in a July 2009 letter. In May 2009, the Veteran's representative argued that VA had erred by failing to notify the Veteran of his right to a hearing before a Veterans Law Judge of the Board. It was noted that he submitted a statement which was accepted as a substantive appeal in lieu of the usual VA Form 9, which includes hearing notification. This is true. However, the Veteran was provided with VA Form 9 when he was sent a copy of his statement of the case (SOC). A letter accompanying the SOC also discussed hearings. His statement was a response to the SOC. As such, it conveys his receipt not only of the SOC but also the VA Form 9 and accompanying letter. The Veteran thus has been notified of his right to a hearing. Additionally, VA has a duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This includes a requirement to aid the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). VA also is required to provide a medical examination and/or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service treatment records have been obtained by VA. VA has not obtained any treatment records. Treatment records, whether VA or otherwise, likely exist given the Veteran's mention of treatment and surgery. The Veteran's representative argued in May 2011 that VA had erred by failing to attempt to obtain these records. It is true that VA never mentioned them specifically. However, the obligation to mention specific relevant records arises where the claimant is unaware of them. 38 C.F.R. § 3.159(e)(2). This is not the situation here where the Veteran, and not VA, is aware of the facilities he has been treated at for his respiratory disorder. A claimant indeed has the obligation to cooperate by supplying information essential to obtain treatment records. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). This includes location and applicable timeframe. 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. §§ 3.159(c)(1, 3). The Veteran has not provided this information for any treatment records despite being afforded several opportunities to do so. This includes in response to the aforementioned September 2006 letter. It also includes in response to the May 2008 and July 2009 letters, which noted the right to submit additional evidence. The Board's remand noted the same. Kutscherousky v. West, 12 Vet. App. 369 (1999). Finally, the Veteran has not submitted any treatment records on his own behalf. The Veteran underwent a VA medical examination complete with medical opinion in October 2011, as directed by the Board's remand. The examiner reviewed the paper claims file, but there is no indication whether or not the Virtual VA electronic claims file was reviewed. However, any lack of review is of no consequence. The Virtual VA electronic claims file contains mostly procedural documents, and the evidentiary documents are not pertinent. The examiner, in any event, was aware of the Veteran's medical history as he gave an accurate account of it. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97 (2008). He also was interviewed about his current state and physically assessed. These actions have provided sufficient detail so that the determination made herein is fully informed. As such, the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Significantly, neither the Veteran nor his representative has identified any necessary additional action that has not been completed. The record also does not indicate any additional action. Thus, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio, 16 Vet. App. at 183. Adjudication therefore may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection Service connection means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred in service, or if preexisting service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, there generally must be a current disability, the in-service incurrence or aggravation of an injury or disease, and a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007). Service connection also may be established for any disease diagnosed after separation from service if it was incurred in service. 38 C.F.R. § 3.303(d). Bronchiectasis, coccidioidomycosis, sarcoidosis, and active tuberculosis are chronic diseases. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). For chronic diseases, service connection additionally may be established through chronicity or continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Subsequent manifestations of the same chronic disease shown during service at any later date may be service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b); Barr, 21 Vet. App. at 303. Continuity of symptomatology after service is required if the disease is noted during service but is not chronic or where the determination that it is chronic is questionable. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology does not mean continuity of treatment. Savage, 10 Vet. App. at 488. Finally, service connection is presumed for chronic diseases when service was for 90 days or more during a period of war or after December 31, 1946, and the disease manifested, whether or not it was diagnosed, to a compensable degree within one year from the date of separation. 38 U.S.C.A. § 1112(a); 38 C.F.R. §§ 3.307(a), (c). The Board must identify the evidence it finds to be persuasive and unpersuasive and explain why any favorable evidence is unpersuasive. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay evidence (also known as non-medical evidence) may be discounted in light of inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence regarding any point, the claimant is afforded the benefit of the doubt. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. The claimant thus prevails on that point when the evidence supports the claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Only the most salient and relevant evidence must be discussed, although all the evidence must be reviewed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Based on this evidence, service connection for a respiratory disorder whether residuals of pneumonia or otherwise is not warranted. It follows from the above that service connection can be granted only if there is a current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). A current disability exists when there is a disability at the time a claim is filed or at any time during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed his claim in August 2006. With no treatment records, the only medical evidence is the October 2011 VA medical examination. The only diagnosis made was emphysema. Acknowledgement is given to the Veteran's apparent belief that he has had a respiratory disability other than emphysema during the period from August 2006 to present. He specifically references residuals of pneumonia and "nasal respiratory related ailments" in his claim and May 2007 notice of disagreement (NOD). There is no indication that he has medical expertise, so he is a lay person. A lay person is competent to relate personal experiences and observations. Layno v. Brown, 6. Vet. App. 465 (1994). As such, a lay person is competent to diagnose a disability when the lay person is able to identify it through experience or observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Flat feet, a dislocated shoulder, certain skin ailments, tinnitus, and varicose veins are examples of such disabilities. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398 (1995). Respiratory disabilities are not capable of identification by a lay person such as the Veteran. They are not simple, in contrast to the disabilities previously listed, because there are many with the same or at least comparable symptoms. They often lack distinct symptoms, in other words. VA's schedule for rating service-connected respiratory disabilities indeed sets forth rating criteria for numerous such disabilities on the basis of pulmonary function tests (PFTs) and prohibits the assignment of more than one rating where there are two or more such disabilities. 38 C.F.R. §§ 4.96(a,d), 4.97. A lay person also is competent to diagnose a disability when the lay person is reporting a contemporaneous medical diagnosis or describing symptoms that support a later diagnosis by a medical professional. Davidson, 581 F.3d at 1313; Jandreau, 492 F.3d at 1372. It cannot be concluded that the Veteran's claim or NOD is a report of a contemporaneous medical diagnosis during the period from August 2006 to present. Indeed, a lay person's recollection such as his of what a medical professional purportedly told him regarding diagnosis or otherwise is not persuasive. Robinette v. Brown, 8 Vet. App. 69 (1995). It further cannot be concluded that the Veteran's claim or NOD is a description of symptoms supporting a later medical diagnosis within this period. Drawing this conclusion, like drawing the previous conclusion, would require confirmation in the form of medical evidence containing a diagnosis. Treatment records are absent, and the VA medical examination is not supportive in this regard. In sum, neither residuals of pneumonia nor any other respiratory disorder other than emphysema constitutes a current disability. Consideration of chronicity, continuity of symptomatology, as well as presumptive service connection therefore is unnecessary. Emphysema indeed is not a chronic disease like bronchiectasis, coccidioidomycosis, sarcoidosis, tuberculosis. Service connection must be established by a showing either that the Veteran's current emphysema has a nexus to a respiratory injury or disease that was incurred or aggravated during his service or that, even though diagnosed after separation, it was incurred during his service. Service treatment records document that the Veteran reported having hay fever then or at some time in the past (the question was whether he had ever had or had now) at his August 1966 entrance examination. However, his head, face, neck, sinuses, mouth, throat, lungs, and chest were found to be normal. It is presumed that a Veteran was in sound condition when examined for entrance into service except as to defects noted at that time. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Noted means only such defects as are recorded upon examination. 38 C.F.R. § 3.304(b). As such, the Veteran is presumed to have had no respiratory problems when he entered service notwithstanding his report of hay fever. It follows that incurrence of an injury or disease during service rather than aggravation of a preexisting injury or disease is at issue. Such incurrence is undisputed. A January 1967 service treatment record reflects that the Veteran had a cold. A September 1968 service treatment record shows that he complained of shortness of breath with a cough. No diagnosis was made. Finally a December 1968 service treatment record reveals that the Veteran had a cough, slight chest pain while coughing, and headaches without rhinorrhea. Flu syndrome was diagnosed. To the extent the Veteran believes his current emphysema is due to the respiratory problems he incurred during service, it is of import that lay evidence sometimes is sufficient to prove nexus. Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); Davidson, 581 F.3d at 1313; Jandreau, 492 F.3d at 1372. Only those with medical expertise are competent where the determinative issue is one of medical nexus, however. Jones v. West, 12 Vet. App. 460 (1999). The question of nexus here falls outside the province of a lay person such as the Veteran. It rather is a medical question given the complexities involved. In addition to the aforementioned lack of distinctive symptoms, the number of years that have passed since the Veteran's service is of import in this regard. So is the fact that there are factors other than service that must be taken into consideration. It is common knowledge, for example, that a connection exists between smoking and respiratory problems. The Veteran himself indeed brought up his smoke-free environment in his NOD. The examiner who conducted the October 2011 VA medical examination further interviewed the Veteran about his smoking history. In sum, he is not competent to establish nexus for his emphysema. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1372. His credibility accordingly need not be addressed. The only medical opinion concerning a nexus between the Veteran's current emphysema and the respiratory problems he incurred during service is from the aforementioned examiner. The opinion is unopposed, in other words. It was negative, as the examiner concluded that the Veteran's current emphysema was less likely than not incurred in or caused by an in-service illness. A medical opinion may be discounted due to factors such as the qualifications and expertise of the individual rendering the opinion, the scope of the assessment, review of pertinent evidence, the accuracy of the factual premises underlying the opinion, the rationale provided for it, and degree of certainty in it. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Ardison v. Brown, 6 Vet. App. 405 (1994); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The examiner identified herself as a nurse practitioner. Her qualifications or expertise have not been challenged by the Veteran or his representative, and therefore she is presumed competent. Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Cox v. Nicholson, 20 Vet. App. 563 (2007); Hilkert v. West, 12 Vet. App. 145 (1999). The examiner used unequivocal language in expressing her opinion. Regarding the accuracy of the factual premises underlying it, no reason for doubt is found given the examiner's consideration of the pertinent evidence. That the paper claims file was reviewed is reiterated. Expounding upon the above discussion that the Veteran also was interviewed, he reported not being able to go as far as usual running and speed biking at an uncertain point several years ago and ultimately gave up these activities about 5 years prior as a result of problems breathing and catching his breath. He also reported chest tightness with exercise and a productive cough when he takes a deep breath especially while exercising. The Veteran stated that he smoked one pack per day from 1966 to 1970. He further stated that he has had allergies since he was a kid. There is no indication of any deficiency with the scope of the assessment performed on him by the examiner, which included PFTs. With respect to rationale, the examiner explained that the Veteran's September and December 1968 service treatment records show acute upper respiratory infections. The January 1967 service treatment record was not mentioned, but it is common knowledge that colds generally are acute in nature. Stedman's Medical Dictionary, 377 (27th ed. 2000). They resolved, in other words. This was the case here, as no respiratory symptoms were reported for over 18 months later in September 1968. The examiner next explained that the Veteran did not develop a chronic respiratory condition during service. It correctly was noted that his service treatment records following December 1968 were silent for respiratory problems. Indeed, his head, face, neck, sinuses, mouth, throat, lungs, and chest were found to be normal at his February 1969 separation examination. He declared in July 1969 that there had been no interim change in his medical condition. Also noted was that the Veteran's report of preexisting allergies explains his report of hay fever at his entrance examination as well as at his February 1969 separation examination. Specifically, he reported allergies to a variety of pollens with the result being rhinorrhea at this latter examination. The examiner indicated that rhinorrhea is a common result of hay fever or being allergic to pollen. Finally, the examiner explained that the Veteran did not develop a chronic respiratory condition until well after his service. The lack of post-service treatment records was noted. So was the fact that the Veteran was able to remain a runner and speed biker at least to some extent until approximately 2006. There was no evidence, in sum, to link his current emphysema to his in-service illnesses. None of the aforementioned factors, in sum, constitutes a significant reason to find the examiner's negative opinion unpersuasive. Rather, it is the most persuasive evidence. Acknowledgement is given in this regard to the Veteran's report in his NOD of continual treatment for respiratory symptoms since service. In particular, he reported that his breathing capacity when climbing stairs and walking briskly decreased following service. The Veteran is competent to make his reports for the same reason discussed above. A lay report cannot be discounted merely because there is no supporting contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). That there are no treatment records for the entire post-service period is not sufficient, in other words. However, the lack of supporting contemporaneous medical evidence along with other factors is sufficient. Factors for discounting a lay report include factors such as interest, self-interest, bias, internal inconsistency, inconsistency with the other evidence, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). In addition to the lack of post-service treatment records, the Veteran is self-interested in this matter. A favorable outcome indeed could potentially result in monetary gain for him. His report of having respiratory problems ever since service is facially plausible, but it is inconsistent at least with the service treatment records dated after September and December 1968. Following episodes of symptoms spaced only three months apart, he was asymptomatic for at least seven months when he separated from service. The Veteran's report also is inconsistent with his interview from the October 2011 VA medical examination where he could not remember exactly when his symptoms began. He thus is competent but not credible. Even if he was both competent and credible, persistent symptoms since service are at most suggestive of a nexus to service. They are not enough to establish such a nexus. The examiner indeed considered the lay evidence from the Veteran in addition to the medical evidence and determined that there was no such nexus. A variety of other explanations are possible for his conclusion that he must have developed a chronic respiratory condition during service. Of import is that the examiner's objective was to determine whether or not there is a nexus to service. As such, that the examiner did not comment upon these other explanations and provide a non-service etiology is of no consequence. The preponderance of the evidence is against service connection for a respiratory disorder, to include residuals of pneumonia, for each of the foregoing reasons. There accordingly is no benefit of the doubt to afford to the Veteran. He is denied the aforementioned benefit. ORDER Service connection for a respiratory disorder, to include residuals of pneumonia, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs