Citation Nr: 1339653 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 10-18 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a respiratory disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dustin Ware, Associate Counsel INTRODUCTION The appellant served with the National Guard of Indiana from August 1961 to August 1964, with a period of active duty for training (ACDUTRA) from February 1962 to July 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The appellant requested a hearing, via videoconference, before the Board, and this hearing was scheduled for April 2011. However, the appellant failed to appear for this hearing and has not presented good cause for doing so. As such, his request for a hearing is considered withdrawn. 38 C.F.R. §20.702(d) (2012). Clarification of Issue on Appeal The appellant's claim of service connection for a respiratory disability was last denied by an unappealed RO decision dated March 1985. However, subsequent to this rating decision, an additional pertinent service record was associated with the claims folder. As this record was not part of the claims file at the time of the March 1985 denial, and is relevant to the instant claim, the appellant's claim of service connection for a respiratory disability will be reconsidered notwithstanding the requirement that new and material evidence be submitted. See 38 C.F.R. § 3.156(c) (2012). Though the rating decision on appeal denies reopening because of lack of new and material evidence it is clear from the statement of the case that all elements of service connection were considered. As a result, the Board will not prejudice the appellant by reconsidering the merits of his service connection claim. See generally, Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010) (citing Bernard v. Brown, Vet. App. 384, 390 (1993)). FINDING OF FACT A respiratory disability was not manifested nor was it aggravated by any period of ACDUTRA; any current respiratory disability is not otherwise etiologically related to a period of ACDUTRA. CONCLUSION OF LAW A respiratory disability was not incurred in or aggravated by ACDUTRA. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify was satisfied prior to the initial rating decision through February and June 2009 notice letters sent to the appellant that fully addressed all notice elements. The letters informed the appellant of what evidence was required to substantiate his service connection claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. In light of the above, the Board finds that the appellant was provided all required notice and that no useful purpose would be served by delaying appellate review to send out additional notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service treatment records identified by the appellant have also been obtained. He has not identified any additional records that should be obtained prior to appellate consideration. VA's duty to further assist the appellant in locating additional records has been satisfied. A VA examination was not provided in conjunction with the appellant's service connection claim, and the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4) (2012). VA has a duty to provide a VA examination when the record lacks evidence to decide the appellant's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, there is nothing in the record suggesting the appellant suffers from a respiratory disability that is etiologically related to active service. The appellant's conclusory lay statements are insufficient to trigger VA's duty to provide an examination with an opinion. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). As the elements of McLendon have not been met, VA is not required to provide the appellant with a VA examination in conjunction with his claim. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). 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 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. The appellant asserts entitlement to service connection for a respiratory disability. For the reasons that follow the Board concludes that service connection is not warranted. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The term "active military, naval, or air service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). The appellant claims that his current respiratory disability stems from a period of ACDUTRA from February to July 1962. ACUDTRA status for this period has been verified by appellant's Indiana National Guard Statement of Service. The Board notes that only "veterans" are entitled to service-connected disability benefits. To establish status as a "veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Turning to the record, the Board has reviewed the appellant's service treatment records. During ACDUTRA, in March 1962, the appellant was diagnosed with bronchitis. He was prescribed medication and released from medical care. There is no indication the appellant returned for further treatment for bronchitis or any other respiratory condition during ACDUTRA. Significantly, a Report of Medical Examination conducted on appellant's release from ACDUTRA, dated July 1962, notes a normal clinical evaluation for the lungs and chest. There is no evidence to contradict the report's conclusion that all respiratory issues had resolved by the time of discharge from ACDUTRA. The new service record that has been associated with the claims file is a July 1964 record from the Indiana National Guard requesting the appellant's discharge from service. The requested discharge is based on an attached June 1964 statement from a private physician indicating the appellant had developed a lung condition as a consequence of a severe pneumonia infection a few years prior and as a result was incapable of performing National Guard duty. This discharge is two years after appellant's ACDUTRA and there is no evidence indicating that the appellant incurred the infection during his ACDUTRA. Again, it is significant that a normal clinical evaluation for the lungs and chest was noted at release from ACDUTRA. The appellant's private treatment records reflect a current diagnosis of COPD and asthma. Throughout the appellant's extensive private treatment records no attempt is made to provide an etiology for the appellant respiratory disability. The Board acknowledges that the appellant himself has claimed, in statements received in December 2008 and March 2009, that he began suffering from chronic obstructive pulmonary disorder (COPD) and asthma during ACDUTRA. However, while the appellant is competent to report (1) symptoms observable to a layperson, e.g. chest pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the appellant's lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Such a diagnosis and etiological opinion must come from a medical professional. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The record includes a Report of Medical History completed at the time of appellant's release from ACTURA. In that report the appellant indicated that he had whooping cough. To the extent this can be construed as a claim of aggravation of a preexisting condition during a period of ACDUTRA, it is noted, the claimant bears the burden of showing both: (1) that he experienced a permanent increase in disability during his period of ACDUTRA; and (2) that such permanent increase was beyond the natural progress of that disability. See Donnellan v. Shinseki, 24 Vet. App. 167 (2010). With respect to aggravation, the Board finds that the appellant has not met this burden of proof. The appellant has produced no competent evidence or medical opinion showing his preexisting whooping cough permanently increased in severity during any period of ACDUTRA. Further, as discussed above, a Report of Medical Examination, conducted at this time, notes a normal clinical evaluation for the lungs and chest. As a final note, in the event that any of appellant's statements could be considered to be claiming his disability began outside his period of ACDUTRA, but during his service in the Army National Guard, such service connection would not be warranted. In Allen v. Nicholson, 21 Vet. App. 54 (2007), the Court of Appeals for Veterans Claims noted the Army National Guard is only a reserve component "while in the service of the United States." 10 U.S.C.A. § 10106 (West 2002). Section 12401 of title 10, U.S. Code, provides that "members of the Army National Guard of the United States and the Air National Guard of the United States are not in active Federal service except when ordered thereto under law." 10 U.S.C.A. § 12401 (West 2002). Thus, a member of the National Guard holds a status as a member of the federal military or the state militia, but never both at once. See Perpich v. Department of Defense, 496 U.S. 334 (1990) ("[National Guard members] now must keep three hats in their closets - a civilian hat, a state militia hat, and an army hat - only one of which is worn at any particular time.") In Perpich, the Supreme Court discussed the dual scheme of the state and federal National Guard systems and stated: Since 1933 all persons who have enlisted in a state National Guard unit have simultaneously enlisted in the National Guard of the United States. In the latter capacity they became a part of the Enlisted Reserve Corps of the Army, but unless and until ordered to active duty in the Army, they retain their status as members of a separate state Guard unit. Id. at 345. (emphasis added). The Federal Circuit interpreted Perpich to stand for the proposition that "members of the National Guard only serve the federal military when they are formally called into the military service of the United States [and that at] all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003) (emphasis added). In sum, the Board finds the preponderance of the evidence is against a finding that a chronic respiratory condition manifested during ACDUTRA. As indicated by the July 1962 Report of Medical Examination the bronchitis had resolved by the time of appellant's release from ACDUTRA. In addition, there is no indication in the record that the lung condition that lead to appellant's discharge from the National Guard manifested during ACDUTRA. Furthermore, the preponderance of the evidence is against a finding that the appellant's current COPD and asthma is related to his ACDUTRA. The private medical records provide no indication of the etiology of his current COPD and asthma. Finally, the appellant has not carried his burden in showing his preexisting whooping cough was aggravated during ACDUTRA. Accordingly, the appellant has not produced a competent medical opinion in support of his claim. Therefore, the Board finds that the preponderance of the evidence is against a nexus between the appellant's current respiratory disability and his period of ACDUTRA. The benefit-of-the-doubt rule does not apply, and service connection for a respiratory disorder must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a respiratory disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs