Citation Nr: 1805097 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-33 172 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for osteoarthritis. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for lower respiratory tract infection. 4. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) with chronic bronchitis. 5. Entitlement to service connection for hypertensive cardiovascular disease. ATTORNEY FOR THE BOARD Michael Sanford, Counsel INTRODUCTION The Veteran had active service in the Philippine Commonwealth Army, including recognized guerilla service in the service of the Armed Forces of the United States from October 1944 to November 1945. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2013 rating decision in which the RO denied service connection for osteoarthritis, hypertension, chronic obstructive pulmonary disease with chronic bronchitis, and hypertensive cardiovascular disease. Later that month, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2014, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2014. In October 2015, the Board remanded the claims on appeal to the agency of original jurisdiction (AOJ). After accomplishing further action, the AOJ continued to deny the claims (as reflected in an October 2017 supplemental SOC (SSOC)) and returned these matters to the Board for further appellate consideration. As regards the matter of representation, in the October 2015 remand, the Board noted that the Veteran had failed to designate any representative on his September 2014 VA Form 21-22, Appointment of Veterans Service Organization as Claimants Representative. Following the remand, a VA Form 21-22 appointing the American Legion was submitted in May 2016; however, the claimant named on that form was not the Veteran. In November 2017, the American Legion submitted a letter explaining that it does not represent the Veteran. It was noted that the organization had never signed the May 2016 VA Form 21-22, and that the form was apparently submitted by individuals who had no legal standing. Accordingly, in a December 1, 2017 letter, the Board apprised the Veteran of all the above, and advised him that he could still appoint a representative, if he so desired. The letter also explained that if no response was received in 30 days, it would be assumed that he wished to proceed pro se (unrepresented). As the Veteran has not appointed another representative or otherwise responded to the Board's December 1 letter, consistent with the terms of that letter, the Board recognizes the Veteran as now proceeding pro se in this appeal. See 38 C.F.R. § 14.631 (2017). Also, this appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107(a)(2) (2012) and to 38 C.F.R. § 20.900(c) (2017). Finally, while the Veteran previously had a paper claims file, this appeal is now fully being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. All records have been reviewed. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. There is no evidence or argument that osteoarthritis had its onset during service or shortly thereafter, the only diagnosis of osteoarthritis of record was documented many years after service, and there is no competent, probative evidence or opinion even suggesting that there exists medical relationship between this disability and the Veteran's military service. 3. There is no evidence or argument that hypertension had its onset during service or shortly thereafter, the only diagnosis of hypertension of record was documented many years after service, and there is no competent, probative evidence or opinion even suggesting that there exists a medical relationship between this disability and the Veteran's military service. 4. There is no evidence or argument that COPD with chronic bronchitis had its onset during service or shortly thereafter, the only diagnosis of COPD with chronic bronchitis of record was documented many years after service, and there is no competent, probative evidence or opinion even suggesting that there exists a medical relationship between this disability and the Veteran's military service. 5. There is no evidence or argument that hypertensive cardiovascular disease had its onset during service or shortly thereafter, the only diagnosis of hypertensive cardiovascular disease was documented many years after service, and there is no competent, probative evidence or opinion even suggesting that there exists a medical relationship between this disability and the Veteran's military service. CONCLUSIONS OF LAW 1. The criteria for service connection for osteoarthritis are not met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107 (2012); 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107 (2012); 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for service connection for lower respiratory tract infection are not met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107 (2012); 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 4. The criteria for service connection for COPD with chronic bronchitis are not met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107 (2012); 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 5. The criteria for service connection for hypertensive cardiovascular disease are not met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107 (2012); 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). After a complete or substantially complete application for benefits is received, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004), and Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service (or service-connected disorder) and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. The Veteran's claim was filed as a "fully developed claim" pursuant to the Secretary's program to expedite VA claims. Under this framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a Veteran submits all evidence relevant and pertinent to his claim other than service treatment records (STRs) and treatment records from VA medical centers, which will be obtained by VA. Under certain circumstances, additional development, including obtaining additional records and providing the Veteran with a VA examination, may still be required prior to the adjudication of the claim. See VA Form 21-526EZ. The fully developed claim form includes notice to the Veteran of what evidence is required to substantiate a claim for service connection, as well as the Veteran's and VA's respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings and effective dates. See id. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claims herein decided. Pertinent medical evidence associated with the claims file consists of private treatment records. Also of record and considered in connection with the appeal is the Veteran's November 2013 claim for benefits. The Board finds that no additional AOJ action to further develop the record in connection with the claim, prior to appellate consideration, is required. As for the Veteran's service treatment records, after requesting them in conjunction with the instant claims, the AOJ determined that the service treatment records were unavailable. Here, the Board finds that the AOJ has undertaken appropriate actions in attempting to obtain service records. In December 2015, the AOJ sought service treatment records; however, in January 2016, the AOJ was informed that the service treatment records were unavailable. In March 2017, the Veteran was informed of the AOJ's efforts and invited to submit the service treatment records himself. The Veteran did not reply to the letter. Given the missing service treatment records, VA has a heightened duty to assist the Veteran in development of his claim. See O'Hare v. Lewinski, 1 Vet. App. 365, 367 (1991). The AOJ met this heightened duty here, advising the Veteran of the lack of availability of his service treatment records; informing him of the alternative forms of evidence that can be developed to substantiate the claim; and otherwise expending exhaustive efforts to obtain the Veteran's service treatment records. As such, no further AOJ action in this regard is warranted. With respect to the Board's December 2015 remand, it is noted that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). In September 2011, the Board remanded these matters for further development of the evidence. First, the AOJ was to inform the Veteran that he failed to appoint a representative and inform him that he was still able to do so. As noted above, such action was accomplished and the Veteran himself did not appoint a representative. Second, the AOJ was to undertake efforts to obtain service treatment records. As discussed above, the AOJ made exhaustive efforts to obtain such to no avail. The Veteran was informed of those efforts pursuant to 38 C.F.R. § 3.159 (2017). He did not respond. Third, the AOJ was to obtain any outstanding VA treatment records. However, the AOJ determined there were no such records outstanding. Finally, the Veteran was to be informed that he could provide, or provide necessary, authorization for VA to obtain any additional evidence pertinent to the claims on appeal. Such a letter was sent to the Veteran in April 2016. The Veteran submitted a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs, but he did not sign that form or identify any outstanding records to be obtained, despite clear instructions that such information was necessary. Accordingly, the Board finds that there has been substantial compliance with the December 2015 Board remand directives such that no further action is necessary in this regard. Id.; see also D 'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Dyment v. West, 13 Vet. App. 141 (1999). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim herein decided. As such, the Veteran is not prejudiced by the Board proceeding to a decision on the claims on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lyndall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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 that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hicks on v. West, 12 Vet. App. 247, 253 (1999). See also Andrea v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its competency, credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, such as arthritis, and cardiovascular disorders, to include hypertension, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (one year for arthritis and cardiovascular disorders), even though there is no evidence of such disease during the period of 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. With chronic disease shown as such in service (or within the presumptive period) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or within the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit has clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of a medical opinion) apply only to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Considering the evidence of record, in light of the above-noted legal authority, the Board finds that service connection for claimed osteoarthritis, hypertension, upper respiratory tract infection, COPD with chronic bronchitis, or hypertensive cardiovascular disease is not warranted. The Veteran filed his claim for service connection for the identified disabilities in e in November 2013. In support of the claim, he submitted a September 2013 record of Dr. E.P.G, which notes diagnoses of osteoarthritis, hypertension, upper respiratory tract infection, COPD with chronic bronchitis, and hypertensive vascular disease. Thus, the claimed disabilities are medical shown. Significantly, however, each of the service connection claims must fail in the absence of any evidence or argument whatsoever linking any currently claimed in-service disability to an in-service injury, disease, or event. In this appeal, the Veteran has advanced no specific theory of entitlement or argument as why service connection is warranted for any of the claimed disabilities. As noted above, the Board acknowledges that service treatment records are unavailable. Moreover, there is no evidence or argument that any claimed disability had its onset during service or shortly thereafter-for example, within the one year presumptive period for osteoarthritis and cardiovascular diseases. The Board finds it noteworthy that, the Veteran filed his claims for service connection in November 2013-nearly six decades after service-and there is no allegation of, or evidence documenting, any complaints pertaining to the any of the claimed disabilities earlier than September 2013. Notably, the fact that the service record does not document any such problems for many years after service is a factor that tends to weigh against an award of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Significantly, moreover, there is no competent evidence or opinion relating any diagnosed post-service osteoarthritis, hypertension, upper respiratory tract infection, COPD with chronic bronchitis, and hypertensive cardiovascular disease condition to any event, injury or disease in service, and, in this case, the Veteran cannot establish a nexus to service for any of the claimed disabilities on the basis of lay assertions, alone. The Veteran, as a layperson, is certainly competent to attest to matters within his own personal knowledge, such as those observed or experienced (see, e.g., Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005)), and may opine as etiology of some simple disabilities, such as those observable or otherwise perceived through the senses (see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring)). However, the matters of diagnosis and etiology of the medically complex disabilities here at issue are based on internal processes not observable to the human eye or otherwise perceived through the senses; hence, questions of diagnosis and etiology of such disabilities are only within the province of individuals with special knowledge, training, and experience. See Jandreau, 492 F.3d at 1377, n. 4 (Fed. Cir. 2007) (a layperson may be competent to attest to a broken leg, but not to diagnose cancer). As the Veteran is simply not shown to have such special knowledge, training, and experience, any such assertions in this regard would not be competent, and hence, not probative. Furthermore, on these facts, VA is not required to arrange for VA examination or to otherwise obtain a medical opinion in connection with any of these claims. Generally, VA has a duty to provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. See 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017);McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board points out that the Veteran has merely filed a claim for service connection and provided a treatment record reflecting diagnoses of the disabilities at issue. These acts, alone, are not sufficient to trigger the duty to obtain an examination or to otherwise obtain any etiology opinion. The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. The Board reiterates that, in connection with these claims, the Veteran has not articulated a specific theory of entitlement or advanced any argument as why service connection for the claimed disabilities is warranted. However, to the extent that the act of filing an application for service connection, alone, is comparable to a generalized statement suggesting a nexus between each claimed disability and service, such does not meet the requirements for obtaining an examination or medical opinion, as espoused in Waters. For all the foregoing reasons, the Board finds that the claims for service connection for osteoarthritis, hypertension, upper respiratory tract infection, COPD with chronic bronchitis, and hypertensive cardiovascular disease must each be denied. In reaching the conclusion to deny these claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, credible and probative evidence supports the required elements of any of these claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for osteoarthritis is denied. Service connection for hypertension is denied. Service connection for lower respiratory tract infection is denied. Service connection for COPD with chronic bronchitis is denied. Service connection for hypertensive cardiovascular disorder is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs