Citation Nr: 1341485 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 08-03 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a lung disability (originally claimed as bronchial asthma and bronchitis). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Appellant served on active duty from January 18, 1974 to January 30, 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the RO in Nashville, Tennessee. By that rating action, the RO, in part, determined that new and material evidence had not been received to reopen a previously denied claim for service connection for bronchial asthma and bronchitis. The RO also denied service connection for chronic obstructive pulmonary disease (COPD) and emphysema. The Appellant appealed this rating action to the Board. The Board observes that the Appellant requested a hearing in association with his claim. The Appellant withdrew his hearing request in a January 2009 statement. In August 2012, the Board determined that new and material evidence had been received to reopen a previously denied claim for a lung disability originally claimed as bronchial asthma and bronchitis. The Board remanded the underlying claim for service connection for this disability to the RO for additional development. FINDINGS OF FACT 1. Asthma clearly and unmistakably preexisted the Appellant's entrance into active service on January 18, 1974. 2. The evidence clearly and unmistakably demonstrates that the Appellant's asthma was not aggravated during his period of active duty service. 3. The competent evidence of record does not show that the Appellant's COPD is etiologically related to or had its onset during his 13-day period of active military service. CONCLUSIONS OF LAW 1. Clear and unmistakable evidence demonstrates that the Appellant's asthma existed prior to his entry into active military service, and that the Appellant's preexisting asthma was not aggravated beyond its natural progression. 38 U.S.C.A. §§ 1110, 1111, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(b) (2013). 2. COPD was not caused or aggravated by military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011, 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Appellant status, existence of a disability, a connection between the Appellant's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Appellant nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Appellant was notified via a March 2008 letter of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter addressed the necessary notice elements. Nothing more was required. VA also fulfilled its duty to assist the Appellant by obtaining all relevant evidence in support of the service connection claim on appeal. The RO obtained his service treatment and VA treatment records, as well as his Social Security Administration (SSA) records. No outstanding evidence has been identified that has not otherwise been obtained and associated with the Appellant's physical claims files and electronic file uploaded to the Veterans Benefits Management System (VBMS). A VA opinion with respect to the issue on appeal was obtained in October 2013. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the October 2013 VA opinion obtained in this case is more than adequate. The opinion was predicated on a full understanding of the Appellant's medical history, consideration of the Appellant's lay assertions, review of the record, and physical examination and provided a sufficient evidentiary basis for the claim for service connection for a lung disability. The October 2013 VA examiner provided answers to the medical questions asked by the Board in its August 2012 remand directives, such that the requested development has been completed. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of entitlement to service connection for a lung disability has been met. Recognition is given to the fact that the VA examiner rendered some of his opinions under an "as likely as not" standard rather than the requested "clear and unmistakable" standard. Such does not prejudice the Appellant nor render the opinion in adequate. The nomenclature of the opinion is not outcome determinative. Rather, as will be discussed below, the specific findings of the examination provide the Board with the evidence to render a decision in this matter under the governing legal standard. The Board is finder of fact and not the examiner. In light of the foregoing, the Board concludes that all the available records and medical evidence has been obtained in order to make an adequate determination as to the claim for service connection for a lung disability such that no further notice or assistance is required to fulfill VA's duty to assist in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001), VA has complied with the duty-to-assist requirements. 38 U.S.C.A. § 5103A. II. Laws and Regulations Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, for Veterans who served for 90 days during a period of war, certain diseases may be presumed to have been incurred during 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, 1137; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792-67793 (Nov. 7, 2002). As the Veteran did not serve for 90 days during a period of war and does not have a disease subject to presumptive service connection, the tenets of 3.307 and 3.309 are not for application. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Certain respiratory disorders are considered qualifying chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, as the presumption of service connection under 3.307 and 3.309 are not applicable in the present case due to the Appellant's brief period of service, service connection via the demonstration of continuity of symptomatology is also inapplicable in the present case. 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). Under ordinary circumstances for veterans of active military wartime service or peacetime service on or after January 1, 1947, for purposes of 38 U.S.C.A. §§ 1110, 1131, and 1137, 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 (West 2002). The presumption of soundness may only be rebutted by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b) (2013). This statutory provision is referred to as the "presumption of soundness." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). In VAOGCPREC 3-2003, VA's General Counsel reinforced that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran's entrance examination report, this presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); see also 38 C.F.R. § 3.304(b) ("Only such conditions as are recorded in examination reports are considered as noted."). This presumption is only rebutted where the evidence clearly and unmistakably shows that the Veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner, 370 F.3d at 1096; Bagby v. Derwinski, 1 Vet. App. 225 (1991). The two parts of this rebuttal standard are referred to as the "preexistence prong" and the "aggravation prong." Horn, 25 Vet. App. at 234. The aggravation prong may be met 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, 370 F.3d at 1096; see also 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits, and, conversely, where the presumption is not rebutted, the Veteran's claim is one for service connection, and not aggravation. Wagner, 370 F.3d at 1096. Accordingly, no deduction for the degree of disability existing at the time of entrance shall be made if a rating is awarded. 38 C.F.R. § 3.322 ("In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service..."). The law provides that an increase in disability must consist of worsening of the enduring disability. Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). A "lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a preexisting condition was aggravated by military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence".) That is, the standard of proof for rebutting the presumption of soundness is not merely evidence that is "cogent and compelling, i.e., a sufficient showing, but evidence that is clear and unmistakable, i.e., undebatable ...." Vanerson, 12 Vet. App. At 261. In short, it is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). III. Factual Background The Appellant contends that his lung disorder, variously diagnosed as bronchial asthma, COPD and bronchitis, had its onset during his short period of active military service from January 18, to January 30, 1974. He alternately argues that any preexisting respiratory disorder was aggravated by his active service. The Appellant's service treatment records show that his lungs and chest were evaluated as "normal" at service entrance in early January 1974. (See January 1974 service enlistment examination report). In the notes section of an accompanying Report of Medical History, the examining physician indicated that the appellant had received treatment for bronchitis one (1) month previously. The examiner noted that there were no significant abnormalities. (See Report of Medical History, dated in January 1974). Later that month, the Appellant was admitted to the hospital after he developed wheezing that did not respond to medication and hydration. At admission, the Appellant gave a history of having had asthma with respiratory infections since the age of three (3), as well as a history of having been hospitalized two (2) to three (3) months previously for 10 days. During the three day period of hospitalization, the Appellant demonstrated inspiratory and expiratory wheezing, diffusely over the chest. A chest x-ray was within normal limits. The Appellant was discharged three (3) days later. It was noted that the Appellant's asthma had improved during his hospitalization after it had been treated with bronchodilators, intermittent pulmonary positive pressure breathing (IPPB), pulmonary toilet, and hydration. The Appellant continued to suffer from occasional faints and wheezes. The Appellant presented himself to a pulmonologist who determined that he should be discharged from military service because of his preexisting bronchial asthma. A Medical Board report issued in late January 1974 reflects that a recommendation to discharge the Appellant for a lack of fitness due to bronchial asthma was approved. The Medical Board found the Appellant to have had childhood bronchial asthma that had existed prior to service and had not been aggravated therein. Post-service VA and private treatment reports, dated from 2000 to 2012, reflect that the Appellant has received treatment for bronchitis as well COPD. These reports also reflect that the Appellant had a 40-pack a year smoking history and that he gave a history of having been sick a lot with asthma and bronchitis in childhood. (See December 2007 VA treatment report). There was no indication of the Veteran receiving treatment for asthma or carrying an active diagnosis of asthma. Rather, the Veteran is routinely described as having asthma by history that is asymptotic and not under any current treatment. The reports are also devoid of any references by the Appellant concerning his active military service, which terminated in January 1974. In October 2013, pursuant to the Board's August 2012 remand directives, VA examined the Appellant to determine the etiology of any currently diagnosed lung disability(ies). The VA physician indicated that he had reviewed of the Appellant's VBMS file, which included a recitation of the above-cited service and post-service medical evidence, and is consistent with that previously noted herein. A physical examination was conducted. A diagnosis of asthma and COPD-emphysema was made. However, in rendering this diagnosis, the VA physician concluded that the Appellant's bronchial asthma had been diagnosed in childhood and had resolved over time. He indicated that the Veteran had "outgrown his asthma." Such was the basis for the determination that the Veteran's preexisting asthma had not been aggravated by his active service. The VA physician highlighted the finding that the Veteran's currently diagnosed COPD was not diagnosed until approximately 2007. He also found that it was as least as likely than not that the Appellant's COPD was related to his substantial tobacco use, and that it was less likely as not to have been caused by his short stint of 13 days of military service. IV. Analysis (i) Asthma The Board finds that the presumption of sound condition attaches with respect to the Appellant's diagnoses of bronchial asthma. The Appellant's lungs and chest were evaluated as "normal" at service entrance in early January 1974. (See January 1974 service enlistment examination report). No respiratory disorder was noted. On an accompanying Report of Medical History, the examining physician indicated that the appellant had received treatment for bronchitis one (1) month previously; however, there were no significant abnormalities. The presumption of sound condition at service entrance attaches with respect to the Appellant's diagnoses of bronchial asthma. In order to rebut the presumption of soundness with respect to this disability, there must clear and unmistakable evidence both that it existed prior to military service and were not aggravated by service. U.S.C.A. § 1111; VAOPGCPREC 3-2003 (July 16, 2003). There is clear and unmistakable evidence that the Appellant's bronchial asthma preexisted his entrance into active military service. Service and post-service medical records consistently relate the Appellant's asthma to his childhood. For example, during the January 1974 hospitalization for wheezing, the Appellant gave a history of having had asthma with respiratory infections since the age of three (3). A Medical Board report issued just a few days later found the Appellant to have had childhood bronchial asthma that had existed prior to service and had not been aggravated therein. The January 1974 Medical Board report shows that service physicians determined that this condition had existed prior to entrance into service (EPTE). See Miller v. West, 11 Vet. App. 345, 348 (1998) (determination of the existence of a pre-existing condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion); Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000) (determination of the existence of a pre-existing condition may be supported by a later medical opinion based upon statements made by the veteran about the pre-service history of his/her condition). Moreover, when seen for post-service medical treatment, the Appellant has consistently maintained that he had asthma during his childhood. See e.g., October 2013 VA respiratory examination report. He is more than competent to report the existence of his respiratory symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The October 2013 VA physician used this information it aide in his determination that the Appellant had had asthma as a child. Given the foregoing, the Board finds that the evidence clearly and unmistakably shows that the Appellant had asthma that preexisted his entrance into military service. In order to rebut the second prong of the presumption of soundness, which is the aggravation prong, there must be clear and unmistakable evidence establishing that the Appellant's preexisting asthma did not increase in severity during his short-stint (13 days) of active military service. There is one opinion that addresses the aggravation component of the Appellant's claim and it is against the claim. The VA examiner opined, after an entire claims files review, to include the above-cited service and post-service treatment records, which included the Appellant's childhood history of asthma and substantial post-service tobacco use, that it was less likely than not that the Appellant's 13-day tenure of military service had aggravated his asthma. Such was essentially based on the determination that the Veteran had outgrown his childhood asthma, and that he no longer had an asthma disability. Post-service treatment records only make reference to the Veteran having a history of asthma. There are no findings of active or symptomatic asthma at any time during the appeal process or proximate thereto. Without the presence of a current asthma disability, aggravation cannot be established because there is no evidence of a lasting worsening. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Indeed, in the absence of proof of a present asthma disability or any complaints related to chronic or recurrent symptoms of asthma, there can be no valid service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) and McClain v. Nicholson, 21 Vet. App. 319 (2007). See also Romanowsky v. Shinseki, No. 11-3272 (Vet. App. May 9, 2013) (noting that a determination as to whether a diagnosis sufficiently proximate to the filing of a claim so as to constitute evidence of a current diagnosis is a factual finding to be made by the Board in the first instance). Consideration has been given to the fact that the Appellant does have chronic respiratory symptoms. However, those symptoms have been attributed to his COPD, which was not diagnosed until many years post-service and which the examiner identified as being a separate disease process. All of the above clearly and unmistakably demonstrates by "affirmative evidence" that there was no aggravation of the Appellant's preexisting asthma. See Horn v. Shinseki, 25 Vet. App. 231 (2012). VA has met its burden of proof in the instant case and the presumption of soundness has been rebutted with respect to the Appellant's asthma. Accordingly, the Board finds that the Veteran's preexisting asthma was not aggravated by service. (ii) COPD The Appellant currently carries a diagnosis of COPD. Such was made on VA examination and is well-documented in the contemporaneous VA treatment records. Element (1) of the Shedden/Caluza analysis is met. There is no evidence of in-service treatment or diagnosis for COPD. As discussed above, the respiratory disorder identified in service, and found to have preexisted service, was bronchial asthma. The VA examiner indicated that the in-service bronchial asthma and post-service COPD are distinct disease processes with different dates of onset and different etiologies. The October 2013 VA physician determined that it was more likely than not that the Appellant's COPD was related to his substantial tobacco abuse and less likely as not related to his short stint (13 days of military service). This opinion is consistent with the evidence of record, namely the Appellant's extensive post-service history of tobacco use. It is against the claim and is uncontroverted. Put another way, while the Appellant experienced respiratory symptoms during his brief period of active service, the competent medical evidence fails to establish treatment or diagnosis for COPD during active service. Element (2) and (3) of Shedden/Caluza have not been met. There is no other opinion, private or VA, that refutes the above-cited VA examiner's opinion and that is supportive of the claim. The most probative medical evidence of record shows that there is no relationship between the Appellant's COPD and his period of 13-days of active military service. Service connection for an COPD is not warranted. V. Conclusion Consideration has been given to the Appellant's assertion that his lung disability, variously diagnosed as asthma and COPD, was either aggravated by his active service or had its onset therein. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, respiratory diseases, such as asthma and COPD, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Asthma and COPD are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that an expert medical opinion was needed to address the root causes of these disorders. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Appellant is competent to report his breathing problems, there is no indication that the Appellant is competent to provide an opinion that the reported in-service symptoms of his wheezing represented an aggravation of his asthma (as opposed to the natural waxing and waning of the condition), or to link his current diagnosis of COPD to his short period of military service. The Appellant has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation for either of the above-cited respiratory disabilities. Nothing in the record demonstrates that the Appellant received any special training or acquired any medical expertise in evaluating respiratory disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. As there is no competent medical evidence of record to support the claims for service connection for asthma or COPD (claimed as a lung disability), the preponderance of the evidence is against the claim, and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a lung disability (asthma and COPD) is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs