Citation Nr: 0714687 Decision Date: 05/17/07 Archive Date: 06/01/07 DOCKET NO. 04-08 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for lateral degeneration of both eyes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The appellant had active service from October 1980 to December 1992. This case comes to the Board of Veterans' Appeals (Board) from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The case was certified to the Board by the Buffalo, New York. FINDINGS OF FACT 1. Asthma is not shown by competent medical evidence to have a nexus to service. 2. Lateral degeneration of the eyes is not shown by competent medical evidence to have a nexus to service. CONCLUSIONS OF LAW 1. Asthma was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304 (2006). 2. Lateral degeneration of the eyes was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSIONS Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., evidence of veteran status; existence of a current disability; evidence of a nexus between service and the disability; the degree of disability, and the effective date of any disability benefits. The veteran must also be notified to submit all evidence in his possession, what specific evidence he is to provide, and what evidence VA will attempt to obtain. VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record, and in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In this case, there is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in May and August 2002 correspondence, amongst other documents considered by the Board, generally fulfills the rovisions of 38 U.S.C.A. § 5103(a), save for a failure to provide notice addressing the type of evidence necessary to establish a disability rating and an effective date for the disabilities on appeal. The claims were readjudicated in a December 2003 statement of the case. The failure to provide notice of the type of evidence necessary to establish a disability rating and an effective date for the disabilities on appeal is harmless because the Board has determined that the preponderance of the evidence is against the claims. Hence, any questions regarding what rating or effective date would be assigned are moot. The Board acknowledges that under 38 U.S.C.A. § 5103(a), notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, any timing error was cured by providing notice and readjudicating the claims. The veteran has been afforded a meaningful opportunity to participate in the adjudication of his claims, to include the opportunity to present pertinent evidence. Thus any error in the timing was harmless, the appellant was not prejudiced, and the Board may proceed to decide this appeal. Simply put, there is no evidence that any VA error in notifying the appellant that reasonably affects the fairness of this adjudication. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). VA has secured all available pertinent evidence and conducted all appropriate development. There is no pertinent evidence which is not currently part of the claims file that has been adequately identified to permit its addition. Hence, VA has fulfilled its duty to assist the appellant. Background The veteran's service medical records are silent for any evidence of asthma or lateral degeneration of the eyes. They do show treatment for bronchitis/pneumonitis in October 1991. In December 1991, the veteran was treated for bronchitis and reactive airway disease. In August 1992, he was treated for a viral upper respiratory infection. The veteran's October 1992 separation examination revealed no evidence of an eye disorder or asthma. VA and private treatment records for the period from October 1992 until approximately 2002 do not reveal any treatment or diagnoses of asthma or an eye disorder. A June 1994 VA eye examination found the veteran's eyes to be normal. A general examination noted a history of pneumonia in service, but identified no current respiratory disorder. Private medical records note the veteran's 1999 report of a history of asthma. The treatment records do not include a nexus opinion concerning either claimed disorder. VA outpatient clinic physicians do not offer any opinion linking any current asthma or eye disability to service. Analysis In order to establish service connection for a disability, there must be objective evidence that establishes that such disability either began in or was aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Such a determination requires a finding of a current disability that is related to an injury or disease incurred in service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To establish service connection for a claimed disorder, 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. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Court has held that the second and third elements can be satisfied, under 38 C.F.R. § 3.303(b), by the submission of (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. McManaway v. West, 13 Vet. App. 60, 65 (1999) (citing Savage v. Gober, 10 Vet. App. 488, 495-97 (1997)). After a review of the evidence, the Board concludes that the preponderance of the evidence is against finding that the appellant's asthma and lateral degeneration of the eyes are related to service. In this regard, neither disorder was demonstrated inservice nor is there any competent evidence which links either disorder to service. Without competent evidence of a chronic disorder in-service, and without competent evidence linking a current disorder to service, the claims must be denied. In reaching this decision the Board considered the veteran's own argument that these disorders were incurred while on active duty. There is no evidence, however, showing that the veteran has the medical training necessary to offer an opinion which requires specialized medical knowledge. As such, the veteran is not competent to offer such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(l). Finally, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for asthma is denied. Entitlement to service connection for lateral degeneration of the eyes is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs