Citation Nr: 1803289 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-13 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a chronic cough. 2. Entitlement to a rating in excess of 30 percent for an anxiety disorder. REPRESENTATION Veteran represented by: Seth C. Berman, Attorney ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from June 2005 to July 2006, to include service in Southwest Asia. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In April 2014, the Veteran requested a Board hearing. In June 2017, he received notification that a video hearing was scheduled for July 28, 2017. Unfortunately, he did not appear at the hearing, and has neither requested a new hearing, nor provided good cause for his absence. As such, the Veteran's hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704 (2017). The issue of entitlement to an increased rating for anxiety disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran is not shown to have a disability manifested by a chronic cough. CONCLUSION OF LAW The criteria for service connection for a chronic cough have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 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). Here, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), VA treatment records, and private treatment records have been obtained. The Veteran was scheduled for a hearing before the Board, but he did not appear. The Veteran was also provided a VA examination with addendum opinion and neither the Veteran, nor his representative, has objected to the adequacy of the examination conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection 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. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). The Veteran seeks service connection for a chronic cough, which was denied by a July 2012 rating decision. He asserts that he has had a chronic cough since his service in Southwest Asia. The Veteran's STRs show that in in August 2005, he was treated for acute bronchitis. In November 2005, he was diagnosed with an upper respiratory infection and bronchitis. In December 2005, he was diagnosed with acute bronchitis. However, at his separation physical in June 2006, he denied having a chronic cough. In January 2013, the Veteran was afforded a VA examination at which he reported that he had an onset of nasal congestion, runny and bloody nose, and post-nasal drip after his service in Southwest Asia. The examiner noted that the Veteran was diagnosed with allergic rhinitis in January 2012. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting a physical examination, the examiner opined it was less likely than not that the allergic rhinitis was related to his exposure during his service in Southwest Asia as allergic rhinitis was a disease with a clear and specific etiology and diagnosis. In May 2012, the VA examiner again reviewed the Veteran's claims file and opined that the Veteran's allergic rhinitis was less likely than not due to his active service. The examiner noted that the Veteran was diagnosed with bacterial or viral infections and seen for coughing during his active service, but no allergy medications or allergy treatment were recommended. The examiner reported that the Veteran's allergic rhinitis more likely developed after discharge. The examiner did not note a diagnosis of a chronic cough. The Board acknowledges the Veteran's competency to report experiencing a cough during service, but notes that he has not identified any chronic residuals from it. The Veteran has not submitted any evidence to establish that he has a chronic disability as a result of a cough he experienced during service. The Board finds that evidence of a present disability has not been presented in the case of the Veteran's reported chronic cough; and, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). However, here, no residuals of a chronic disability have been identified during the course of the Veteran's appeal. Here, the Veteran specifically denied having a chronic cough at his separation examination in June 2006. Furthermore, the Veteran's medical records show that he did not have a cough in March 2014, December 2014, May 2015, July 2015, April 2016, or August 2016. As such, the record contains no evidence of any current diagnosis of a disability manifested by a chronic cough. In addition, a VA examiner reviewed the Veteran's claims file and reported that the he was diagnosed with allergic rhinitis in January 2012, but opined that the Veteran's allergic rhinitis, which he has not claimed service-connected, was less likely than not due to his active service, to include his service in Southwest Asia. As described, the criteria for service connection have not been met and the Veteran's claim is denied. ORDER Service connection for a chronic cough is denied. REMAND The Veteran was granted service connection for anxiety in a September 2011 rating decision. The RO assigned a 30 percent rating based on the Veteran's symptoms. However, the Veteran was previously afforded VA examinations for his anxiety. In January 2012, an examiner indicated that the Veteran had occupational and social impairment due to mild or transient symptoms, which is suggestive of a 10 percent rating. In May 2012, an examiner indicated that the Veteran had occupational and social impairment with deficiencies in most areas, which is suggestive of a 70 percent rating. Finally, in June 2016, an examiner indicated that the Veteran had occupational and social impairment due to mild or transient symptoms, which is again suggestive of a 10 percent rating. In addition, the June 2016 examiner did not address or explain the findings of the previous VA examiners. The Veteran's medical records show that he was psychiatrically hospitalized in July 2016 and August 2016 for suicide attempts. As such, the Veteran should be provided a new VA examination to assess the current nature and severity of his PTSD with a retrospective opinion regarding the entire period on appeal. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination with a psychiatrist or a psychologist to assess the nature and severity of his service connected PTSD. The examiner should discuss the previous VA examinations and the Veteran's current symptomology addressing whether the Veteran has remained psychiatrically stable throughout the course of his appeal, or whether there have been any distinct periods during which his psychiatric symptomatology has been at an increased level as suggested by the 2012 VA examination . 2. Then, readjudicate the appeal If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs