Citation Nr: 0003633 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-05 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for Guillain-Barre syndrome. 2. Entitlement to service connection for respiratory disorder, variously diagnosed. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran and veteran's spouse ATTORNEY FOR THE BOARD L. Helinski, Associate Counsel INTRODUCTION The veteran had active military service from September 1965 to August 1969, followed by a period of service in the United States Air Force Reserve from approximately July 1973 to July 1992. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 1998 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. There is no medical diagnosis of current Guillain-Barre syndrome or any residuals thereof. 2. There is a state of equipoise of the positive evidence with the negative evidence on the question of whether or not the veteran's current respiratory disability is related to his period of active military service. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for Guillain-Barre syndrome is not well-grounded. 38 U.S.C.A. § 5107(a). 2. Chronic respiratory disability was incurred during the veteran's active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issues before the Board involves claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. § 1110,; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). However, it should be noted at the outset that statutory law as enacted by the Congress charges a claimant for VA benefits with the initial burden of presenting evidence of a well- grounded claim. 38 U.S.C.A. § 5107(a). A well-grounded claim has been defined by the United States Court of Appeals for Veterans Claims (Court) as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 91 (1990). Where the determinative issue involves a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). A claimant therefore cannot meet this burden merely by presenting lay testimony and/or lay statements because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well- grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In order for a service connection claim to be well-grounded, there must be competent evidence: i) of current disability (a medical diagnosis); ii) of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and; iii) of a nexus between the inservice injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet.App. 498, 506 (1995). Moreover, the truthfulness of evidence is presumed in determining whether a claim is well- grounded. King v. Brown, 5 Vet.App. 19, 21 (1993). The Board emphasizes, however, that the doctrine of reasonable doubt does not ease the veteran's initial burden of submitting a well-grounded claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Alternatively, the Court has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. Factual Background Initially, the Board notes that as the veteran had active service in the United States Air Force from September 1965 to August 1969 followed by reserve service. The veteran is claiming service connection for Guillain-Barre syndrome and for a respiratory disorder variously diagnosed as hyperactive airways disease, chronic respiratory rhinosinusitis, and trachea bronchitis. The veteran's original claim for service connection, received in October 1997, listed the claimed conditions, but the veteran did not include an explanation as to his basis for those claims. After the RO denied the veteran's claims in a March 1998 rating decision, he submitted a notice of disagreement in March 1998 and indicated that it is his "strong belief that these conditions are the direct result of ... exposure to toxic substances while working on the flight line during active duty in the USAF." In the veteran's substantive appeal, received in October 1998, he stated that when he first entered active military service, he did not have any of the respiratory disorders that he currently has. However, he indicated that after he commenced working on the flight line he began to experience respiratory problems, including flu-like symptoms, sinusitis, dizziness, and nausea. The veteran maintained that his symptoms continued to manifest, and in 1973 he was diagnosed with Guillain-Barre syndrome. In short, he claimed "that my respiratory condition was incurred during my active duty service." In the July 1998 hearing, the veteran testified that he performed aircraft maintenance during active military service and for one year during service in the Reserve. The veteran stated that while performing this work, he was exposed to a large number of toxins and fumes. The Board has reviewed all of the medical evidence of record, which reveals the following, in summary. During active military service, in December 1965 and September 1966 he was noted to have flu-like symptoms. In December 1965, he was diagnosed with an acute upper respiratory infection and bronchitis. Following active duty service, the veteran's Reserve records reveal that in February 1974, he was noted to have recovered from Guillain-Barre syndrome. In April 1974, he was noted to have a history of Guillain-Barre syndrome, which was 96-99 percent resolved. A December 1975 record noted Guillain-Barre syndrome, resolved. A September 1979 record reflected complete recovery from Guillain-Barre syndrome, and an October 1979 record noted bronchitis. The medical evidence following the veteran's active duty service reveals that from March 1982 to April 1982, the veteran was hospitalized at St. Joseph Hospital, with a discharge diagnosis of "hyperactive airway disease with sinusitis, right maxillary, and tracheobronchitis; history compatible with twitchy lung syndrome; observation for immunodeficiency, none found; costochondral fracture, second costochondral junction on the right secondary to coughing; irritable bowel syndrome; status post Guillain-Barre syndrome." The attending physician was F.F. Marschalk, M.D. A May 1988 private medical record from Charles H. Banov, M.D., indicates that he had treated the veteran since 1982 for rhinosinusitis and tracheobronchitis. The veteran was also noted to be hypersensitive to a number of common inhalant allergens, and he had some recent recurrent bronchitis. An October 1991 statement from Dr. Marschalk indicated that from September 1973 to November 1973, the veteran was treated for Guillain-Barre syndrome, which Dr. Marschalk referred to as an "acute episode of illness." Dr. Marschalk further stated that since that time, the veteran has been subject to recurrent respiratory tract infections including mycoplasma pneumonia, tracheobronchitis, and sinusitis. Dr. Marschalk opined that "[i]t is medically documented that exposure to noxic and toxic inhalants triggers [the veteran's] respiratory episodes." In an August 1997 statement from Dr. Marschalk, he opined that "because of all [the veteran's] exposure on Flight Line to noxious and toxic substances that he is experiencing what we call hyperreactive airways disease that is ongoing and is service connected." (emphasis in original). In November 1997, the veteran underwent a VA examination. The examiner noted that the veteran had a history of reactive airways disease since the 1980s, which is manifested by episodes of wheezing and sinusitis. The veteran indicated that this problem began after he worked on the flight line, and was exposed to noxious chemicals. Allergy testing had revealed that he was allergic to trees, grass, dust mites, chemical fumes, and feathers. The veteran reported that he had had an episode of Guillain-Barre syndrome in the past, but that it was totally resolved. Pulmonary function tests demonstrated FEV1 of 3.75, which is 91 percent of predicted, and FVC was 4.72, which is 93 percent of predicted. The examiner described these findings as normal. Blood pressure was 132/80, and cardiovascular was normal. The assessment was reactive airways disease. The examiner opined that "since the patient's exposure to noxious chemicals he has sustained reactive airways disease manifesting itself as chronic respiratory allergies, rhinosinusitis and tracheobronchitis." The assessment also included "Guillain-Barre syndrome, resolved." In an August 1998 private medical report from C. W. Wimberly, Jr., M.D., it was noted that a review of the veteran's records revealed a long history of tracheobronchitis, respiratory allergies and sinusitis. Dr. Wimberly indicated that he had treated the veteran since "years ago after release from active duty." Dr. Wimberly further indicated that the records revealed "quite an occupational exposure to chemicals, fumes and allergens ... [and that] [f]light line exposure was quite positive after review with his occupational exposures." In conclusion, the doctor opined that "the veteran has suffered occupational damage to his respiratory system and should be rated service connected." The Board acknowledges that in addition to the foregoing medical evidence, the veteran has submitted copies of medical treatises and articles regarding exposure to toxins. Analysis A. Guillain-Barre Syndrome Although the hospitalization report for the period during which the veteran was treated for Guillain-Barre syndrome is not of record, the medical and other evidence is consistent that the veteran was treated for this syndrome in 1973. However, there is no medical diagnosis of current Guillain- Barre syndrome or any residuals thereof. In fact, as summarized above, the medical evidence of record consistently indicates that the veteran had completely recovered from Guillain-Barre syndrome in the 70s, and that the condition had "resolved." The Board notes that an integral element for any claim for service connection is evidence that the veteran has the claimed disability. See Mercado-Martinez, 11 Vet. App. at 419. While the Board does not dispute that the veteran was treated for Guillain-Barre syndrome in 1973, there is no evidence that the veteran currently suffers from Guillain-Barre syndrome, or any residuals thereof. As such, in the absence of any medical diagnosis of current disability, the claim for entitlement to service connection for Guillain-Barre syndrome is not well-grounded. 38 U.S.C.A. § 5107(a). B. Respiratory Disability The veteran contends that his current respiratory disorder is related to his exposure to various toxins during active military service while working on the flight line, performing aircraft maintenance. Given the evidence of a medical diagnosis of current disability and medical evidence suggesting a link to the veteran's military service, the Board finds that the veteran's claim for service connection for a respiratory disorder, variously diagnosed as hyperactive airways disease, chronic respiratory rhinosinusitis, and trachea bronchitis, is well-grounded under 38 U.S.C.A. § 5107(a). After reviewing the record, the Board also finds that the duty to assist the veteran has been met. As summarized earlier in this decision, the veteran's service medical records reflect treatment for flu-like symptoms, an upper respiratory infection, and bronchitis. It is clear from the veteran's DD-Form 214, that his specialty during service was aircraft maintenance. Following service separation, there is substantial medical evidence of record that reflects treatment for respiratory disorders, diagnosed as hyperactive airway disease with sinusitis, tracheobronchitis, rhinosinusitis, hyperreactive airways disease, and reactive airways disease. More significantly, the physicians rendering these diagnoses have, for the most part, drawn a positive correlation between the veteran's current respiratory disorder and his exposure to toxins during active military service. Significantly, there are no medical opinions of record that specifically negate such a relationship. As such, the Board finds that resolving all remaining reasonable doubt in the veteran's favor, the evidence supports a finding that the veteran's current respiratory disability is related to his active military service. 38 U.S.C.A. § 5107(b). ORDER The veteran's claim of entitlement to service connection for Guillain-Barre syndrome is not well-grounded. To this extent, the appeal is denied. Entitlement to service connection for chronic respiratory disability is warranted. To this extent, the appeal is granted. ALAN S. PEEVY Member, Board of Veterans' Appeals