Citation Nr: 1343474 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 07-36 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for allergic rhinitis. 2. Entitlement to service connection for bronchial asthma. 3. Entitlement to service connection for a pulmonary disorder. ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from February 1962 to January 1964. This matter comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). No hearing was requested. These claims have been remanded three prior times, in October 2008, December 2009, and December 2011, and now return again before the Board. 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). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has allergic rhinitis is etiologically related to a disease, injury, or event in service. 2. The preponderance of the evidence is against a finding that the Veteran currently has a diagnosis of bronchial asthma etiologically related to a disease, injury, or event in service. 3. The preponderance of the evidence is against a finding that the Veteran currently has a diagnosis of any pulmonary disorder etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. Allergic rhinitis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. Bronchial asthma was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 3. A pulmonary disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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, all the evidence submitted by or on behalf of the Veteran. 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 claim. 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 Veteran). Both the Veteran's physical, and virtual, claims files have been reviewed in adjudication of this claim. Stegall concerns Under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As noted in the Introduction above, the Board remanded the Veteran's claim in October 2008, December 2009, and December 2011, so that the Veteran might be provided with further VA examinations, and additional VA treatment records might be obtained. As noted in further detail below, the Veteran was re examined several times during the course of this appeal, specifically in December 2006, and February 2012. Additional treatment records were obtained to the extent possible. Further, the Veteran's claim was readjudicated in a December 2012 Supplemental Statement of the Case (SSOC). As such, there is compliance with the Board's prior remand instructions. See Stegall, 11 Vet. App. at 271. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. VCAA letters dated in January 2008, November 2008, January 2012, September 2012, and December 2012, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These documents informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order to ensure that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). The Veteran was provided with multiple examinations December 2006, and February 2012. 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Law The Veteran claims allergic rhinitis, bronchial asthma, and a pulmonary disorder, as either secondary to dust/contaminants the Veteran was exposed to in service or to the tonsillectomy performed in service. For the below reasons, service connection is denied for this claim. 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; 38 C.F.R. § 3.303(a). 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 claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as bronchiectasis, become manifest to a degree of 10 percent within one year of separation from active service, then they would be presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board notes that there is no evidence of record showing bronchiectasis or any other presumptive condition under this code manifesting to such a degree with one year of service, therefore, service connection on a presumptive basis is not warranted. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). As noted, however, the Veteran is not shown to have bronchiectasis or any other presumptive condition under 38 C.F.R. § 3.309(a). Thus, service connection cannot be established by a showing continuity of symptomology. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Jandreau v. Nicholson, supra (concerning a dislocated shoulder). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and Analysis Taking into account all relevant evidence, the Board finds that service connection is not warranted for any of these claimed conditions. Specifically, the most probative evidence does not show that the Veteran has chronic bronchial asthma or another pulmonary disorder. While the evidence does show a diagnosis of allergic rhinitis, there is no evidence of this disability in service or for many years after service. The Veteran's service treatment records shows multiple treatments for a sore throat/tonsillitis. The Veteran received a tonsillectomy in service, for which he is service connected at a noncompensable evaluation. The Veteran's December 1963 separation examination report shows the Veteran's sinuses are normal, with no evidence of any respiratory or otolaryngical disabilities. In an accompanying report of medical history, the Veteran reported a chronic cough, but denied a history of hay fever, chronic or frequent colds, or sinusitis. VA treatment records dated from 2000 to the present show periodic treatment for rhinitis. A December 2000 record apparently handwritten by a VA health care professional indicates that the Veteran was status post bronchitis with night cough for the past 4 weeks, without fever. On examination, his lungs were clear, but with occasional mild wheezing. The Veteran was diagnosed with bronchial asthma, prescribed medication, and encouraged to return in 3 months for a follow up treatment. This is the only evidence of record ever documenting a diagnosis of bronchitis and asthma. A January 2002 VA treatment record diagnosed the Veteran with sinusitis. In A December 2006 report of VA sinus examination, the Veteran was noted to have mild allergic rhinitis, torus palatinus, and was noted to be post tonsillectomy, with an excellent post tonsillectomy result. The Veteran complained of stuffiness in his nose. On examination, he had mild congested turbinates. There was no evidence of tenderness, discharge, or obstruction of the sinuses. The examiner also noted that the Veteran did not have bronchial asthma related to tonsillitis. In a December 2006 report of VA respiratory examination, the Veteran was specifically examined based on his complaints of asthma, but was found to have no evidence of asthma. A letter dated September 2009 from a private examiner is of record. It indicates that the Veteran reported a history of respiratory problems. The examiner indicated that the Veteran presented with constant nasal congestion with discharge, as well as frontal headaches and daily episodes of shortness of breath. He feels fatigue and all of his symptoms worsen at night. His nasal mucosa is always erythematous and swollen and he presents constant itching sensation of his throat, as well as a constant sensation of not having enough air reaching his lungs. He has been on multiple medications with poor improvement and needs to constantly use a nasal spray to relieve his nasal congestion. He cannot be in places where there is a lot of dust because that worsens his symptoms. He feels chest tightening and congestion which limits his capacity to fill his lungs with air completely. He reported this has limited his daily activities because strenuous activity causes him fatigue. He can't be in places where there is a lot of dust because this worsens his symptoms. The physician noted that the Veteran was exposed to a lot of dust and soil while in service, which caused him to have constant respiratory tract infections and required treatment with medication. The physician indicated that some people can develop increased sensitivity to this kind of allergens and with constant exposure inflammatory changes can be present, which alters the mucosa, making it even more sensitive and also more prone to infections and constant respiratory problems like rhinitis, allergies, and even asthma. The examiner indicated that in his opinion it was more probable than not that the Veteran had a respiratory problem that was service connected, secondary to his exposure to dust and soil in service and constant episodes of respiratory infections. The Board has considered this opinion, but finds it of minimal probative value given the vague nature of the physician's ultimately conclusion, which relates a respiratory disorder to service but fails to identify the respiratory disorder that the physician believes to be related to service. A VHA opinion was received in August 2011. At that time, the examiner noted the Veteran's particular complaints of being exposed to dust and fumes in service while riding around in trucks. The medical records from that time noted a peritonsillar abscess with treatment, including a tonsillectomy, lacerations to the cheek and hands, a cigarette burn in the eye, and an episode of pleuritic chest pain thought to be myositis or pleuritis. There is no mention of rhinitis or asthma. The examiner noted no records between discharge and 2000, but multiple medical problems between 2000 and 2009, including obesity, arthritis, nasal congestion, dyspepsia, high cholesterol, and tinea blanca. There were no chest X-rays, allergic labs, or pulmonary function tests. The physician indicated that there was clear clinical and examination evidence of allergic rhinitis. The veteran has intermittently over the past 10 years used inhaled steroid medication, and inhaled albuterol. The physician indicated that it was clear to him that the Veteran had problematic, moderate to severe, allergic/vasomotor rhinitis. Work up for etiology, and attempts to use medications other than nasal steroids, were lacking. The examiner stated that, in his opinion, there is very little to support a diagnosis of asthma. No wheezing is ever documented, no pulmonary function tests have been done, and there is no imaging. Therefore, the physician indicated that there was no objective evidence that the Veteran had asthma. As to the question of whether the Veteran's allergic rhinitis is related to his active service, the physician indicated that he had no idea, but that this claim seemed far fetched, and that the Veteran would need additional testing to verify such a claim. The physician further indicated that he was not sure that the Veteran had asthma, much less, whether it related to something from 1964. The physician indicated that if the Veteran did have asthma, allergic rhinitis would be very likely to be a causative or exacerbating condition. He indicated that he could think of no conceivable way in which the Veteran's in service myositis or pleuritis could be related medically to asthma or rhinitis. He further indicated he had no evidence these conditions were active from service to the present, as he had no records from 1964 to 2000, but he did note that on discharge from service there was no mention of asthma or rhinitis. The Veteran subsequently received multiple VA examinations in February 2012. At that time, he was diagnosed with allergic rhinitis. The Veteran complained of recurrent nasal congestion associated with discharge for the past 10 years, and there was hypertrophy and erythema of nasal turbinates bilaterally, and 50 percent obstruction of both nasal passages with clear secretions, no crusting or polyps. The Veteran's service connection for a tonsillectomy was noted, as was the Veteran's history from 2000 to the present. The examiner specifically indicated that there was no evidence of asthma or a pulmonary disorder found. The examiner indicated that in his opinion, the Veteran's rhinitis was less likely than not incurred in or caused by the claimed in service injury. In support of this opinion, the examiner noted that the Veteran had only complained of the symptoms related to rhinitis occurring for the past 10 years or so. The examiner also noted that the Veteran's claims folder and electronic medical record showed no evidence of allergic rhinitis from service until 2001. The Board finds these VA opinions particularly probative as they were based on a full review of the Veteran's claims file and a thorough examination of the Veteran. Thus, the Board finds that the preponderance of the evidence of record, as cited above, indicates that the only claimed condition the veteran currently has is allergic rhinitis, and that this condition did not develop until over 35 years after the veteran's separation from service, and is not related to service. As noted, the Veteran is not shown to have bronchiectasis or any other presumptive condition under 38 C.F.R. § 3.309(a). Thus, service connection cannot be established by a showing continuity of symptomology. For this reason, and as the preponderance of the medical evidence of record suggests there is no relationship between his current rhinitis and service, the Board finds that the preponderance of the evidence of record is against a grant of service connection. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to service connection for allergic rhinitis is denied. Entitlement to service connection for bronchial asthma is denied. Entitlement to service connection for a pulmonary disorder is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs