Citation Nr: 0721693 Decision Date: 07/19/07 Archive Date: 08/02/07 DOCKET NO. 05-17 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for pulmonary tuberculosis (PTB) (claimed as chest pains). WITNESSES AT HEARING ON APPEAL The veteran and S.B. ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served as a New Philippine Scout from May 1946 to April 1949. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Manila, Philippines, Department of Veterans Affairs (VA) Regional Office (RO). The veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in July 2006. A transcript of that hearing is associated with the claims file. FINDING OF FACT PTB was not manifested in service or within three years following active duty discharge, and is not shown to be related to the veteran's service. CONCLUSION OF LAW PTB was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2006). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini II that VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), to the extent possible, must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. Pelegrini II, 18 Vet. App. 112, 119-20 (2004). See, too, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the veteran was provided notice of the VCAA in September 2003, prior to the initial adjudication of his claim in the March 2004 rating decision at issue. The VCAA letter summarized the evidence needed to substantiate the claim and VA's duty to assist. It also specified the evidence the veteran was expected to provide, including the information needed to obtain both his private and VA medical treatment records. In this way, the VCAA letter clearly satisfied the first three "elements" of the notice requirement. In addition, in a February 2004 letter, VA stated: "If there is any other evidence or information that you think will support your claim, please let us know." (Emphasis in original). This satisfies the fourth "element". During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must include mention that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. In this case, the veteran received Dingess notice in August 2006, including as it relates to the downstream disability rating and effective date elements of his claim. The Board finds that all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service medical records and private treatment records. The Board notes that although some of the veteran's service medical records show fire damage, none of them appear to have been destroyed. In June 2006, the veteran stated that he had no other information or evidence to give VA to substantiate his claim. There is no indication there exists any additional evidence that has a bearing on this case that has not been obtained. The veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2006). The VCAA and implementing regulations require VA to provide a veteran with an examination or to obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (a) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (b) establishes that the veteran suffered an event, injury or disease in service; and (c) indicates that the claimed disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. See 38 C.F.R. § 3.159(c)(4) (2006). Upon review, the Board has concluded that a remand for physical examination of the veteran and/or a medical nexus opinion is not warranted. As discussed in more detail below, the service medical records do not contain any reference to treatment of any respiratory condition in service. In the absence of evidence of in-service incurrence of a respiratory disease, referral for a medical nexus opinion is unnecessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Court has held on a number of occasions that a medical opinion premised on an unsubstantiated account is of no probative value. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993). Obtaining a medical nexus opinion under the circumstances presented in this case would be a useless exercise. In so concluding, the Board finds that the circumstances here presented differ from those found in Charles v. Principi, 16 Vet. App. 370 (2002), wherein the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this particular case there is no evidence of in-service respiratory disease. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claims has been consistent with the provisions of the VCAA. Accordingly, the Board will proceed to a decision on the merits as to the issue on appeal. Pertinent Law and Regulations Service connection may be granted for disability due to disease. or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTB may be established on a presumptive basis if such disease is shown to have been manifested to a compensable degree within three years following the veteran's discharge from active duty. 38 C.F.R. §§ 3.307(a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to establish service connection for the 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). Analysis With respect to Hickson element (1), current disability, an undated medical certificate from Dr. F.T., received in September 2003, indicates that the veteran was treated for chest pain and productive cough in June 2002. The diagnosis was Koch's pulmonary (PTB). Although the medical evidence is negative for any more recent diagnosis of active tuberculosis, the Board will presume for the sake of argument that current disability exists. Therefore, element (1) has been met. With respect to Hickson element (2), in-service disease, the veteran contends that he reported to sick call in 1947 with complaints of chest pains. The veteran's service medical records include both his entrance (May 1946) and discharge (April 1949) physical examinations; however, neither shows any respiratory complaints. In fact, both show that he had a normal respiratory system, with annotations of normal/negative chest x-rays. While there are annotations of sick calls in the medical tags of his service medical records, none of them pertain to treatment of pneumonitis or any respiratory condition. The Board acknowledges the veteran's testimony that he was treated in service for complaints of chest pain which were later diagnosed as PTB; however, his statements are outweighed by the utterly negative service medical records. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran long after the fact]. The Board also notes that the post-service medical evidence does not show any treatment or diagnosis of PTB within three years following the veteran's discharge from service. The veteran has indicated that he was treated by a private physician approximately a month after service for coughing and told at that time that he might have PTB. He was also told that he might have PTB in 1952 when treated by "Dr. Acousta." In an April 2004 statement, B.V. reported that he accompanied the veteran when he was treated for PTB, however, the records of the attending physicians were no longer available. The Board regrets that treatment records from these physicians are not available, however, the Board finds pertinent the fact that the veteran, himself, testified that he was not diagnosed with PTB until 1997, many years after service. See hearing transcript, page 6. The truthfulness of this admission is supported by a January 1990 statement from the veteran, submitted in conjunction with a claim for pension, wherein he indicated that "he did not have any physical disability acquired during my military service . . . ." Such statement supports the medical evidence which shows that the earliest diagnosis of any respiratory condition is in June 1997 when the veteran was hospitalized for pneumonitis secondary to influenza. Therefore, the statutory presumption pertaining to tuberculosis specifically is not applicable in this case. See 38 C.F.R. §§ 3.307, 3.309. Since the medical evidence shows that PTB was not diagnosed in service or within the three year presumptive period after service, Hickson element (2) has not been met. Insofar as the veteran himself is attempting to provide medical evidence concerning the in-service existence of PTB, it is now well established that an opinion of a person without medical training or experience on medical matters such as diagnosis and etiology is entitled to no weight of probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. As to Hickson element (3), medical nexus, there also is no competent medical opinion of record otherwise linking the veteran's PTB to his military service. 38 C.F.R. § 3.303(d). It is clear that in the absence of any relevant disease in service a medical nexus opinion would be an impossibility. Cf. Charles v. Principi, 16 Vet. App. 370, 374 (2002). And as already mentioned, the veteran is not competent to offer a medical opinion attributing a disability to service. See Espiritu. Therefore, Hickson element (3), medical nexus, is not met. ORDER Entitlement to service connection for PTB (claimed as chest pains) is denied. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs