Citation Nr: 1510643 Decision Date: 03/13/15 Archive Date: 03/24/15 DOCKET NO. 12-33 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for dyspnea, possible emphysema. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to October 1971, from January 1995 to July 1995, from November 1996 to January 2005, and from August 2008 to November 2009. This appeal is before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction has since been transferred to the RO in Indianapolis, Indiana. FINDING OF FACT The Veteran does not have a current disability of the lungs. CONCLUSION OF LAW The criteria for service connection for dyspnea, possible emphysema, have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated February 2010. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA medical records have been obtained, as have relevant private medical records identified by the Veteran. Also, the Veteran was provided a VA examination of his dyspnea in March 2010. The Board finds that this examination and its associated report were adequate. Along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination report was based on examination of the Veteran by an examiner with appropriate expertise who thoroughly reviewed the claims file. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Merits The Veteran seeks service connection for dyspnea and possible emphysema. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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. In his January 2010 claim, the Veteran claimed service connection for shortness of breath dating back to 1998. In his claim, the Veteran indicated that he was a Gulf War Veteran. According to the Veteran's service records, the Veteran's service in Asia during the Gulf War period was entirely in Afghanistan. The Board notes that the provisions of 38 C.F.R. § 3.317(a) do not apply to periods of service in Afghanistan, and are therefore inapplicable to this appeal. See 38 C.F.R. § 3.317(e). Service treatment records do not reflect any symptoms of or treatment for shortness of breath or any other lung condition. A June 1997 chest x-ray report was normal. The Veteran underwent a VA examination for shortness of breath in March 2010, reporting an onset of dyspnea on severe exertion in 2005. He reported no history of hypertension, dizziness, syncope, angina, fatigue. He denied cough, wheezing, chest pain, hemoptysis, fever, anorexia, night sweats, or asthma. A physical examination revealed no abnormalities. Chest x-rays showed clear lungs with granulomas and sharp sulci with slightly flattened diaphragm. Heart size was normal and bones were unremarkable. The radiologist reported an impression of possible minimal emphysema. The examiner concluded that there was no evidence of disease, and no diagnosis. Upon VA's request for clarification, in September 2010 the examiner stated that the Veteran does not have emphysema or chronic obstructive pulmonary disease, and that the Veteran's slightly flattened diaphragm is a non-specific, common radiographic finding that is insufficient to diagnose emphysema. The Veteran provided a record of a private chest x-ray dated August 1995, when the Veteran reported difficulty breathing, shortness of breath, and left chest pain. The report stated that the lung fields, heart and mediastinum, and bony thorax were free of active disease. There was a finding of a flattening of the diaphragm and an increase in the diameter of the chest. The report listed an impression of emphysematous chest, with no active process identified. In his November 2012 substantive appeal, the Veteran stated that he had not suffered shortness of breath until his deployment in Afghanistan in 2005 and 2006. Specifically, the Veteran stated that the air quality was poor due to fumes from industry and agriculture. In a November 2014 statement, the Veteran asserted that his March 2010 VA examination was not sufficiently thorough. While the Veteran's x-ray reports suggest the possibility of emphysema, the record does not indicate that the Veteran has ever been diagnosed with emphysema. The August 1995 x-ray report stated that the Veteran's chest is emphysematous with no active process, and the March 2010 x-ray report indicates possible minimal emphysema. Neither of these x-ray reports provides a definitive diagnosis of a current disability. Moreover, the Board finds the VA examiner's opinion that the Veteran suffers no respiratory condition highly probative. The opinion was based on a detailed physical examination with reference to the Veteran's file, including x-ray reports. On review of these x-rays in conjunction with a physical examination, the examiner concluded that the x-rays were insufficient on their own to diagnose emphysema, and based on a clinical examination further opined that the Veteran does not currently suffer from emphysema or any other respiratory disability. The Board therefore finds that the evidence weighs against a finding of a current disability. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board finds that there is no evidence of a current disability and service connection must therefore be denied. ORDER Service connection for dyspnea, possible emphysema, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs