Citation Nr: 1648529	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  10-19 109	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to service connection for a lung condition to include pleuritic lung disorder, asthma, and chest pain and trauma. 

2.  Entitlement to service connection for thoracolumbar back disorder.  


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. Bush, Associate Counsel




INTRODUCTION

The Veteran served in the U.S. Army from May 1975 to July 1983.  He was awarded the army service ribbon, the overseas service ribbon, a parachutist badge, a good conduct medal, an expert badge with M-16 rifle bar and an expert badge with hand grenade bar. 

This matter comes before the Board of Veterans' Appeals (Board) from on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. 

While the Veteran has claimed pleuritic lung disorder, the record shows symptoms and diagnosis of asthma, thus the Board has reframed the issue on appeal as service connection for a lung condition to include asthma, pleuritic lung condition, and chest pain and trauma. 

The RO, in a May 2012 rating decision, granted the Veteran's claim for entitlement to service connection for abdominal pain; therefore, that issue is no longer before the Board. 
 
The Veteran requested a Travel Board hearing when he submitted his substantive appeal in May 2010.  In a correspondence dated September 2016, he was advised that he was scheduled for a hearing in November 2016.  However, he failed to report for the hearing without good cause and as such his request for a hearing is considered withdrawn.  38 C.F.R. § 20.702(d).  


FINDINGS OF FACT

1.  The evidence does not demonstrate that the Veteran's currently diagnosed lung disorder was shown in active service or for many years thereafter; thus, it is not related to such service.    

2.  The evidence does not demonstrate that the Veteran's currently diagnosed thoracolumbar back disorder had its onset during active duty service, manifested within one year of separation from service, or is otherwise etiologically related to service. 


CONCLUSIONS OF LAW

1.  The Veteran does not meet the criteria for service connection for a lung condition to include pleuritic lung disorder, asthma, and chest pain and trauma.  38 U.S.C.A. § 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2016).

2.  The Veteran does not meet the criteria for service connection for a thoracolumbar back disorder.  38 U.S.C.A. § 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Preliminary Matters

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104 (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence.  Id.   The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. It should not be assumed 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 claimant.  Id.   

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. Id.  
 
II. Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).

The Board finds that the notice requirements have been satisfied by letters dated September 2008 and November 2008. 

With regard to VA's duty to assist the Veteran, the claims file contains all pertinent service treatment records (STRs), VA and private medical records, and lay statements in support of the claim.  

The appellant has not been afforded a VA medical examination in conjunction with the current appeal, and upon review of the record, the Board has determined that such an examination is not warranted.  See McClendon v. Nicholson, 20 Vet App. 79, 81 (2006) (a VA examination or opinion is necessary where there other criteria are met and there is "insufficient competent medical" evidence for VA to decide the claim).  In this regard, the Board denies the claims below on the basis that the Board finds that the evidence weighs against: (1) an in-service injury or disease that could be related to any of the claimed disabilities, (2) relevant chronic symptoms in service, and (3) against continuous symptoms of relevant chronic diseases since service.  The appellant has not otherwise provided evidence that indicates that there may be a nexus between the claimed disabilities and his service.  As the Board has found no in-service injury or disease to which a competent medical opinion could relate the claimed disabilities, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection.  See 38 U.S.C.A. § 5103A (a) (2) (West 2014); 38 C.F.R. § 3.159 (d) (2016).

Neither the Veteran nor his representative has identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable.  He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VA's duties to notify and assist him with the claim have been satisfied. 

III. Service Connection

a. Pertinent 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; 38 C.F.R. § 3.303(a) (2016). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (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).

Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97   (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). 

However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013).  In this case, the Veteran is currently diagnosed with degenerative arthritis of the lumbar spine, and arthritis is considered a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies with respect to the claim. 

In addition, the Board notes that where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2016).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Davidson v. Shinseki, 581 F.3d 1313, 1316   (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran.  Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011).  In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

b. Service connection for pleuritic lung condition, chest pain and trauma

The Veteran contends that he has a pleuritic lung condition, chest pain and trauma and that these conditions are related to his active duty military service. 

Military personnel records reflect that the Veteran's military operational specialties were that of personnel records specialist and unit supply specialist.  

The Veteran's STRs do not show evidence of complaint, treatment, or diagnosis of a lung condition to include asthma, a pleuritic lung condition, and/or chest pain and trauma while in service.  See Veteran's STRs.  

Upon exiting the military, the Veteran affirmatively denied asthma, shortness of breath, or pain or pressure in the chest.  See Report of Medical History.  His  Separation Examination states that his lungs, chest, and heart were normal.  A chest x-ray performed also showed the Veteran was within normal limits.  See Veteran's Separation Examination.  In addition, the Veteran's physical profile, summarized on the separation examination report with the acronym "PUHLES" notes a "1" in each category, which is reflective of a high level of fitness.  A "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition."  Odiorne v. Principi, 3 Vet. App. 456, 457 (1992).

Private treatment records show that the Veteran complained of chest pain in October 1991.  He was found to have bibasal subsegmental atelectasis and pleural reaction with borderline lower lobe consolidation.  See October 1991 Private Treatment Records.   

VA Treatment Records show that the Veteran reported daily episodes of chest pain.  The chest pain was substernal pressure and was associated with shortness of breath, diaphoresis, and nausea.  The physician noted chest pain, edema, orthopnea, and syncope as all concerning symptoms and referred the Veteran for a chest x-ray. The radiologist found that he had mild left ventricular enlargement and dilated aorta likely due to systemic hypertension.  He found normal hilar regions, normal trachea, and normal pulmonary vascularity and no evidence of pneumonia or pulmonary edema. The Veteran was not diagnosed with a lung or respiratory condition.  See October 2008 VA Treatment Record and Radiology Report.   

Private treatment records from February 2000 show that the Veteran went to a facility following a car accident.  Radiology reports on his chest showed that his cardiomediastinal silhouette and pulmonary vasculature were within normal limits, the pleural margins and lung parenchyma were clear.  No obvious soft tissue or bony abnormality was noted. There was no evidence of cardiopulmonary injury.  See February 2000 Private Radiology Report. 

Additional private radiology reports from April 2003 show normal left ventricular function, normal sized left atrium, left ventricle, and right ventricle, no evidence of concentric left ventricular hypertrophy, or evidence of stenosis, or regurgitation of aortic, mitral, pulmonic, or tricuspid valves.  The Veteran was not diagnosed with a lung or respiratory condition.  See Private Radiology Report April 2003.   

VA Treatment Records from 2009 to 2010 indicate that the Veteran received treatment and was prescribed medication for exercise-induced asthma.  However upon physical examination, his lungs were shown as clear to auscultation (CTA) with no wheezing, rales, or rhonchi.   See 2009-2010 VA Treatment Records.

Based on a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to service connection for a lung condition to include pleuritic lung condition, asthma, and chest pain and trauma.   

As an initial matter, the Board finds that the Veteran has a current diagnosis of exercise-induced asthma, thereby satisfying the first requirement for service connection.  See 2009-2010 VA Treatment Records. 

The second requirement for service connection is an in-service incident or occurrence.  As previously noted, the Veteran's STRs are silent for any complaint, treatment, or diagnosis of any lung condition and/or chest pain or trauma.  See Veteran's STRs. The Veteran did not provide any lay statement alleging a specific in-service incident or occurrence resulting in his current disability.  Thus, there does not appear to have been an in-service incident or occurrence to satisfy the second requirement for service connection.  

Finally, the third requirement is a nexus between the Veteran's current disability and his military service.  The first documented complaint or treatment for chest pain occurred in 1991, eight years after the Veteran's separation from service and his documented diagnosis of asthma occurred in 2009, twenty-six years after separation.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  There is no probative evidence of record linking the Veteran's current disability and his military service.    
 
Accordingly, the preponderance of the evidence weighs against a finding in favor of the Veteran's service connection claim for a lung condition to include pleuritic lung condition, asthma, and chest pain and trauma. 

c. Service connection for thoracolumbar back condition 

The Veteran asserts that his current thoracolumbar back condition is related to his active duty military service.  

The Veteran's STRs are silent regarding complaint, treatment, or diagnosis of any back pain.  See Veteran's STRs.  He affirmatively denied recurrent back pain or arthritis, rheumatism, or bursitis in his Report of Medical History upon separation.  See Report of Medical History.  His spine was rated as normal on his separation examination.  See Veteran's Separation Examination.  In addition, the Veteran's physical profile, summarized on the separation examination report with the acronym "PUHLES" notes a "1" in each category, which is reflective of a high level of fitness.  

Following a car accident in February 2000, the Veteran received a limited lumbar spine x-ray.  While the study was limited because part of the Veteran's spine was partially cut off on the lateral view, it otherwise showed normal alignment of the lumbar spine.  See February 2000 Private Radiology Report.  

The Veteran continued to report and was diagnosed with low back pain in June 2000.  See June 2000 Private Treatment Record. 

In March 2007, the Veteran fell off a first floor ladder on to his back, injuring his back and legs, while at work.  He began treatment at a private orthopedic sports medicine facility where he was diagnosed with lower back syndrome and traumatic myofascitis lumbar spine.  He continued to receive treatment at another private facility in conjunction with a disability claim for this work injury.  There, radiology reports showed mild arthrosis of the facet joints at L4-5 and L5-S1. See April 2008 Private Radiology Report. 

VA Medical Records from February 2009 show the Veteran complained of recent back pain that disrupted his sleep and became worse when he moved around.  The physician noted his 2007 work injury in the history of present illness.  He was given an x-ray and degenerative changes with limited axial evaluation were noted.  There was no acute abnormality of the upper lumbar spine.  See February 2009 VA Medical Records.  Other VA treatment records show continued treatment for and assessments related to low back pain.  

Based on a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to service connection for a thoracolumbar back condition.     

The Veteran has been diagnosed with several low back disabilities since 2000, including low back pain, lower back syndrome, traumatic myofascitis lumbar spine, and arthrosis of the facet joints at L4-5 and L5-S1.  Therefore, he has a current disability and satisfies the first requirement for service connection.  

However, the Veteran's STRs do not show any complaint, treatment, or diagnosis of back pain.  Additionally, the Veteran did not provide lay statements pointing to any specific in-service incident or occurrence that he believes caused his current disability.  Thus, there does not appear to have been an in-service incident or occurrence.  

As arthritis is classified as a chronic disease, the Veteran is afforded additional avenues by which to satisfy the in-service and nexus requirements for service connection.  If a chronic disease such as arthritis manifests itself to a degree of ten percent or more after the date of separation, it is presumed to have been incurred during service, thereby satisfying the in-service requirement.   In the case at hand, this presumption does not apply as the Veteran's arthritis did not manifest itself to a degree of ten percent or more one year by 1984.  In fact, the Veteran did not complain of low back pain until 2000, seventeen years after separation, after a car accident.  See February 2000 Private Radiology Report. 

Both the in-service and nexus requirements of service connection may be satisfied if the Veteran can demonstrate continuity of symptomatology.  However, in the Veteran's case, the medical evidence does not show that 1) a low back disability was "noted" in service, 2) there was no post-service continuity of symptomatology (the Veteran did not complain of low back symptoms until 2000), and 3) medical evidence does not provide a link between the current disability and the Veteran's post-service symptomatology.  Therefore, continuity of symptomatology does not apply and the in-service and nexus requirements of service connection are not satisfied.  The Veteran does not meet the requirements for service connection for his thoracolumbar back condition. 

d. Conclusion

The Board is grateful for the Veteran's honorable service.  However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise.  See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits ...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA ... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). 

Accordingly, the preponderance of the evidence weighs against a finding in favor the Veteran's service connection claims for a lung condition to include pleuritic lung condition, asthma, and chest pain and trauma and for a thoracolumbar back condition so they must be denied.  











ORDER

Entitlement to service connection for a lung condition to include pleuritic lung condition, asthma, and chest pain and trauma is denied. 

Entitlement to service connection for thoracolumbar back condition is denied.  




____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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