Citation Nr: 0709155 Decision Date: 03/28/07 Archive Date: 04/09/07 DOCKET NO. 04-43 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for asthma. ATTORNEY FOR THE BOARD K. Seales, Associate Counsel INTRODUCTION The veteran had active service from December 1972 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for asthma. In March 2006, the Board remanded the claim for further development. The remand directives having been completed, the claim is again before the Board for appellate review. FINDING OF FACT The veteran does not currently have a diagnosis of a respiratory condition, including asthma. CONCLUSION OF LAW A respiratory condition, including asthma, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107(West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the veteran's claims folder, which includes, but is not limited to: service medical records, lay statements in support of his claim, and a July 2006 VA medical opinion statement. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. The Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, on the claim. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). The veteran claims service connection for asthma, which he contends initially manifested in service. He reports having difficulty breathing and states he must control his condition with albuterol inhalers and nebulizer treatments. In order to establish service connection, three elements must be satisfied. There must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2006); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Factual Background No conditions affecting the lungs and chest were noted during the veteran's December 1972 service induction examination, and he did not report a history of asthma. In December 1973, he sought treatment for an asthmatic attack and reported a history of previous attacks. The veteran was not in distress at the time of treatment. On examination, his chest was clear and there was no evidence of wheezes or rales. His examining physician noted a doubtful history of asthma and no treatment was provided. The veteran's lungs and chest were normal at separation from service in January 1974. In July 2006 the veteran's claims folder was submitted to a VA physician for an opinion regarding whether his current respiratory condition is related to service. The examiner noted that the veteran's complaints of a respiratory condition were isolated to the treatment received in December 1973; no additional respiratory complaints were noted during service. The physical findings at the time of treatment did not support a diagnosis of asthma, and further, there was no diagnosis of asthma during service. The examiner explained that, despite the veteran's lay statements attesting to a current asthma disability, the medical evidence of record did not support a diagnosis of asthma. In addition, the examiner concluded that there is no evidence to support a medical nexus between the veteran's current claim for asthma and the asthmatic attack noted during service. The veteran has submitted an October 2005 medical follow up form which indicates that he is to report to the clinic every six months, as needed, for albuterol nebulizer treatments. The form does not note a diagnosis of a respiratory condition, including asthma. Analysis Based upon the evidence of record, there is no objective medical support for the veteran's claim of a current chronic disability characterized as asthma. Although the veteran sought treatment for an asthmatic attack during service, he demonstrated no symptoms of asthma on examination and his treating physician concluded that his reported history of asthma was doubtful. The Board has considered the October 2005 medical follow up form submitted by the veteran. The document does not reflect a current diagnosis of a respiratory disability, including asthma, despite documenting the veteran's intermittent nebulizer treatments. Further, a VA physician reviewed the veteran's claims folder and concluded there is no evidence of a current diagnosis of asthma. In the absence of evidence that the veteran suffers from a current disability, the preponderance of evidence is against the claim, the "benefit of the doubt rule" does not apply, and his claim for service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App 49 (1990). Duty to Notify and Assist Duty to Notify: Regarding VA's duty to inform the veteran of the evidence needed to substantiate his claim, the RO notified him of the information and evidence needed to establish entitlement to service-connection in correspondence dated February 2003 by informing him of the evidence he was required to submit, including any evidence in his possession, and the evidence that the RO would obtain on his behalf. Because service connection has been denied, any question as to the appropriate disability rating or effective date is moot, and there can be no failure-to-notify prejudice to the veteran. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Duty to Assist: Regarding the duty to assist the veteran in obtaining evidence in support of his claim, the RO obtained his service medical records, and obtained a VA medical opinion in July 2006. Of record are April 2004 and June 2004 requests for medical records, however, no response was received. The veteran was not afforded a VA examination in connection with the claim and the Board finds that such an examination is not necessary. The veteran has not indicated the existence of any other evidence that is relevant to this appeal. The Board concludes that all relevant data has been obtained for determining the merits of this claim and that no reasonable possibility exists that any further assistance would aid him in substantiating this claim. ORDER Entitlement to service connection for asthma is denied. ____________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs