Citation Nr: 1339982	
Decision Date: 12/04/13    Archive Date: 12/18/13

DOCKET NO.  10-13 802	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to service connection for asthma.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

U. Ifon, Associate Counsel



INTRODUCTION

The Veteran had active duty for training from August 1999 to December 1999 and had active duty from December 2003 to February 2005.  He also had additional inactive duty in the National Guard and served in Iraq from February 2004 to January 2005.

This appeal to the Board of Veterans' Appeals (Board) is from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2010.  A transcript of the hearing is of record.

In May 2011, this matter came before the Board and was remanded for additional evidentiary development.

A review of the Veteran's Virtual VA file reveals a November 2013 post-remand appellate brief.


FINDING OF FACT

Asthma was not shown during service and there is no evidence of a nexus relating the current diagnosis to service.  An examination was scheduled in an attempt to determine the etiology of the asthma and the Veteran failed to report.


CONCLUSION OF LAW

The criteria for service connection for asthma have not been met.  38 U.S.C.A. §1110 (West 2002); 38 C.F.R. §§ 3.303, 3.655 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in October 2008 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the Veteran, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  The issue was most recently readjudicated in a July 2012 supplemental statement of the case (SSOC).

VA has fulfilled its duty to assist.  The RO has made reasonable and appropriate efforts to assist the Veteran in obtaining the evidence necessary to substantiate this claim, including requesting information from the Veteran regarding pertinent medical treatment he may have received and obtaining such records.  The Veteran was notified in April 2012 of unavailable service records.

As noted above, the Board remanded this issue in May 2011 for additional development, to include a VA examination.  The Appeals Management Center made several phone calls and mailed two letters to the Veteran, but he did not respond or report for the examination.  He also failed to report for the scheduled physical fitness test.  The July 2012 SSOC informed the Veteran of the effects of his failure to attend the examination.  In a November 2013 post-remand brief, the Veteran's representative acknowledged his failure to attend, and requested "another chance."  The representative stated the Veteran "may have legitimate mitigating circumstances for not reporting" but did not elaborate further.  Moreover, the Board notes that no mail to the Veteran was returned as undeliverable, and the Veteran did not deny receiving adequate notice of the scheduled VA examination.  The Board finds the Veteran has not provided good cause for his failure to report, nor has he indicated a willingness to report.  When a Veteran fails to report for an examination scheduled in conjunction with an original compensation claim, without good cause, such as in this case, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.655.

Hence, VA has fulfilled its duty to notify and assist the Veteran, and adjudication at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The appeal is now ready to be considered on the merits.

Pertinent Laws and Regulations

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006).  The evaluation of evidence generally involves a three-step inquiry: (1) determining the competency of the source; (2) determining credibility, or worthiness of belief, and (3) weighing its probative value.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).

A layperson is competent to report on the onset and continuity of his current symptomatology based on personal knowledge.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

When a chronic disease is shown in-service, sufficient to permit a finding of service connection, any subsequent manifestation of the same chronic disease at any later date is service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In this case, the Veteran's asthma is not a chronic condition listed under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

When there is an approximate balance of positive and negative evidence regarding a material issue, the Veteran is given the benefit of the doubt.  38 U.S.C.A. § 5107.  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Analysis

The Veteran contends his asthma is related to his active military service.  There is medical evidence showing a current diagnosis of asthma, with an onset within one year of separation from service.  Asthma is not a chronic condition, therefore service connection cannot be granted on a presumptive basis under 38 C.F.R. § 3.303(b). 

Complete service treatment records (STRs) from the Veteran's period of active service, to include fitness testing records from Iraq, are unavailable for review.  In such situations, VA has a heightened duty to assist the Veteran.  Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992).  Of the available STRs, there are no complaints of, treatment for, or diagnosis of asthma.  The Board notes two January 2005 post-deployment assessments indicates the Veteran was exposed to smoke from burning trash or feces, and sand/dust while serving in Iraq.  It was noted on one assessment that he was a smoker of 5-10 cigarettes a day.  Records from November 2003 include a history of an episode of bronchitis for which he was prescribed an inhaler.  All examinations during this period, including for post deployment evaluation are negative for pertinent findings.  He was seen in September 2004 for a sore throat and other complaints.  Following evaluation a viral upper respiratory infection was noted.  There are no subsequent findings.

There is no competent evidence of a nexus between his current disability and service.  The evidence of record shows the Veteran complained of and received private and VA treatment for asthma since December 2005.  During his September 2010 hearing, the Veteran stated he had no difficulty breathing before deploying to Iraq.  He asserted he failed his physical fitness test post-deployment due to breathing problems.  The Veteran also stated his private doctor suggested his asthma could be the result of smoke fumes and sand.  During remand development he was offered an opportunity to obtain an opinion to support this contention.  Nothing was forthcoming.  Additionally, available records do not show a failed physical fitness test.

While the Veteran is competent and credible to testify about his observable symptoms of breathing difficulty and his exposure to smoke and sand/dust, as a layperson, he is not competent to provide an opinion as to a complex medical matter, such as the etiology of his asthma.  See Layno, 6 Vet. App. at 470.  Accordingly, the Board assigns a low probative value to the Veteran's assertions of the etiology of his disease.

The Board also considered the August 2011 statement by the Veteran's nurse practitioner.  She stated that the etiology of his asthma was unknown.  This opinion is of no probative value because it does not provide evidence that the Board can consider in support of or against this claim.  

As noted, the Veteran was afforded a VA examination to evaluate the etiology of his current disease.  By failing to report for the VA examination in May 2012 without good cause or adequate reason, the Veteran denied VA the opportunity to obtain information that could have substantiated his claim.  38 C.F.R. § 3.655.  Further in this regard, the Board observes that the duty to assist is a two-way street.  If a Veteran wishes help in determining his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

Thus, after considering all the evidence of record, the Board finds the weight of the evidence is against the finding of entitlement to service connection for asthma.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable.  See 38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for asthma is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs