Citation Nr: 0007323 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 98-00 644A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Douglas E. Massey, Associate Counsel INTRODUCTION The veteran had active service from June 1970 to May 1972 and from June 1972 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the veteran's claim of entitlement to service connection for respiratory problems. During the course of this appeal, the veteran moved to Michigan and her records were transferred to the RO in Detroit. Appellate processing was continued by that office and the records were forwarded to the Board. In a VA Form 21-4138 (Statement in Support of Claim) dated May 1998, the veteran filed claims for service connection for right and left wrist conditions, hypertension, a gastrointestinal condition, and a "gyn-perineal" laceration. In April 1999, the RO sent the veteran a development letter regarding these issues as well as service connection for sleep apnea. Another letter was sent to the veteran regarding these matters in June 1999. However, these claims have not been developed for appellate review at this time, and, as such, the Board refers them back to the RO for any further appropriate action. FINDING OF FACT No opinion from a medical professional links a current respiratory disorder to the veteran's period of military service. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for a respiratory disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran claims that she currently suffers from a respiratory disorder which is the same disability she was treated for in service. She maintains that service connection for this disorder is therefore warranted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b) (1999). The preliminary question to be answered, however, is whether the veteran has presented evidence of a well-grounded claim. A well-grounded claim is not necessarily a claim that will ultimately be deemed allowable; rather, it is a plausible claim, properly supported with evidence. See 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464, 1468 (1997); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the absence of evidence of a well-grounded claim, there is no duty to assist the veteran in developing the facts pertinent to the claim, and the claim must fail. See Slater v. Brown, 9 Vet. App. 240, 243 (1996); Gregory v. Brown, 8 Vet. App. 563, 568 (1996) (en banc); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Three types of evidence must generally be presented in order for a claim for service connection to be well grounded: (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps, 126 F.3d at 1468. Alternatively, the United States Court of Appeals for Veterans Claims (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, 498 (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." Id. In this case, service medical records show that the veteran was treated for an upper respiratory infection on several occasions. In September 1970, she was seen for symptoms involving a cough, sore throat and congestion. In March 1971, the veteran reported a two to three week history of an upper respiratory infection manifested by pain in the left upper quadrant of the chest. An April 1972 periodic examination report notes the veteran's history of frequent upper respiratory infections, with no clinical findings reported at that time. The veteran was seen again in November 1972 for an upper respiratory infection. In June 1973, the veteran was seen for chest pain associated with a cold. When seen in August 1974, the diagnosis was upper respiratory infection, probably viral and strep throat was to be ruled out. A September 1974 entry documents the veteran's complaints of pleuritic chest pain. The remainder of the service medical records, including an April 1976 separation examination report, makes no further reference to any respiratory problems. Chest X-rays taken at various times during service were consistently negative for any disease process. Post-service medical evidence shows that the veteran was treated at a VA medical facility for various problems from 1977 to 1997. A report dated in January 1978 reflects that the veteran was seen for complaints of dysphagia, an earache and hoarseness. No respiratory diagnosis was provided. In April 1980, the veteran was diagnosed with hyperventilation syndrome. The veteran reported a two day history of sinus trouble in July 1980, assessed as possible sinus infection. In January 1981, the veteran was treated for bronchitis. The veteran was seen on several occasions in 1985 for complaints of substernal chest pain, shortness of breath, and sinus congestion. These symptoms were believed to be related to an upper respiratory infection. The veteran presented to the Emergency Room in January 1986 with complaints of chest pain and coughing. Chest X-rays showed no disease process. The diagnosis was bronchitis. In 1997, the veteran was diagnosed as having sinusitis and sleep apnea. After carefully reviewing these reports, the Board points out that no opinion from a medical professional discusses the etiology or date of onset concerning any of these disorders. Thus, no medical opinion links any of the veteran's respiratory disorders to her period of service. The veteran was seen at the Henry Ford Hospital in February 1995 for complaints of head congestion, postnasal drainage and off-color secretion. Physical examination showed that her lungs were clear, with congestion of the nasal turbinate. The physician's impression was upper respiratory infection with some sinusitis. The veteran also underwent treatment at Providence Hospital from January 1996 to February 1997 for respiratory disorders identified as bronchitis, sinusitis, allergies, pneumonia, and obstructive sleep apnea. None of these reports, however, contains a medical opinion linking any of these disorders to the veteran's period of military service. The veteran also submitted letters from her husband and sister in support of her claim. In a July 1997 letter, the veteran's husband stated that the veteran had been suffering from chronic sinus and respiratory conditions since they first met in 1972. A July 1997 letter from the veteran's sister stated that she and the veteran entered military service at the same and completed basic training in McClennan, Alabama. She indicated that it was during basic training that the veteran first began experiencing sinus and respiratory problems, which had continued to the present time. After a review of the medical evidence, the Board finds that the veteran has not submitted a well-grounded claim of entitlement to service connection for a respiratory disorder because no medical evidence of record links any current respiratory disorder to the veteran's period of military service. Service medical records show periodic treatment for acute respiratory problems associated with upper respiratory infections over a period of several years. The first post- service evidence of a respiratory disorder was in 1980, approximately four years after she left service. The Board also stresses that none of the post-service clinical records contains a medical opinion relating any of the veteran's respiratory disorders to her period of service. Thus, no medical evidence shows a nexus between the veteran's in- service respiratory problems and her current respiratory disorder. Despite contentions by the veteran, her husband and her sister that her current respiratory problems initially began in service, lay assertions of medical etiology can never constitute evidence to render a claim well grounded under section 5107(a). See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1991). In support of her appeal, the veteran essentially asserts that she had the onset of a chronic respiratory disorder in service, and that the symptoms of this disorder have continued through the present. As noted, the record reflects that the veteran was treated for upper respiratory infections on several occasions over a period of several years in service. There is no diagnosis of a chronic respiratory disorder in service, however. Service medical records dated after 1974 as well as separation examination are negative for a finding of a chronic respiratory disorder. In view of such evidence and the lack of any medical opinion establishing that a chronic respiratory disorder was present in service and that a current respiratory disorder is a manifestation of such chronic disorder, it is concluded that a chronic respiratory disorder was not shown to be present in service and that service connection is not warranted on a direct basis or with application of 38 C.F.R. § 3.303(b); Savage, supra. As noted above, in Savage the Court observed that a claimant may obtain the benefit of § 3.303(b) by showing a continuity of symptomatology. The Court noted that a veteran's assertion of continuity of symptomatology, in and of itself, may be sufficient to well ground a claim by providing a nexus, in some cases. The veteran has indicated that she has had continuous respiratory symptomatology since service. She also indicated that prior to service she did not have any respiratory problems which she asserts began in service and which she now experiences. The veteran, as a lay person, is competent to provide evidence of the occurrence of observable symptoms during and following service. See Savage, 10 Vet. App. at 497. However, the Court in Savage held that unless the relationship between any present disability and the continuity of symptomatology demonstrated is one as to which a lay person's observation is competent, medical evidence demonstrating the relationship is still required to well ground the claim. Id. at 497-98. It must be considered that there are many and diverse reasons that could explain the symptoms the veteran states that she continuously experienced. Expert medical opinion, which is lacking in the record, is required to establish such a nexus. While her statements are presumed to be credible, the veteran, as a lay person, is not competent to relate the symptoms which she has stated she has experienced during and since service to her current disability. As the record is devoid of any such competent medical evidence, the case is not well grounded. In the absence of competent medical evidence to support the veteran's claim that her respiratory disorder is related to service, the Board concludes that the veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that her claim is well grounded. Therefore, the VA has no further duty to assist the veteran in developing the record to support her claim. See Epps, 126 F.3d at 1469 ("[T]here is nothing in the text of § 5107 to suggest that [VA] has a duty to assist a claimant until the claimant meets his or her burden of establishing a 'well grounded' claim."). The Board notes that the veteran was scheduled to undergo a VA respiratory examination at the Tampa VA Medical Center in April 1998. That examination was canceled, however, because the veteran had moved to Michigan. In any event, as the claim is not well grounded, the veteran was never entitled to a VA examination under 38 U.S.C.A. § 5107. The Board is also unaware of any information in this matter that would put VA on notice that any additional relevant evidence may exist which, if obtained, would well ground the veteran's claim. See generally, McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). The Board also views the above discussion as sufficient to inform the veteran of the elements necessary to present a well-grounded claim for the benefit sought, and the reasons why the claim has been denied. Id. ORDER In the absence of evidence of a well-grounded claim, service connection for a respiratory disorder is denied. S. L. KENNEDY Member, Board of Veterans' Appeals