Citation Nr: 0002063 Decision Date: 01/27/00 Archive Date: 09/08/00 DOCKET NO. 98-02 986A DATE JAN 27, 2000 On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for a lung disorder as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Nicholas M. Auricchio, Associate Counsel INTRODUCTION The veteran served on continuous active duty from June 1972 to June 1992. This matter is currently before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. FINDING OF FACT The claim of entitlement to service connection for a lung disorder as due to an undiagnosed illness is not plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to service connection for a lung disorder as due to an undiagnosed illness is not well-grounded. 38 U.S.C.A. 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking entitlement to service connection for a lung disorder as due to an undiagnosed illness. 1 The legal question to be answered initially is whether he has presented evidence of a well-grounded claim; that is, a claim that is plausible. If he has not presented a well-grounded claim, his appeal must fail with respect to this claim and there is no duty to assist him further in the development of this claim. 38 U.S.C.A. 5107(a). As will be explained below, the Board finds that this claim is not well grounded. --------------------------------------------------------------- 1 The veteran is service connected for rhinitis. - 2 - The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. 1110, 1131 (West 1991); 38 C.F.R. 3.303 (1999). Service-connected disability compensation may also be paid to any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses) that became manifest to a compensable degree through the year 2001. 38 U.S.C.A. 1117 (West 1991); 38 C.F.R. 3.317 (1999). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Three discrete types of evidence must be present in order for a veteran's claim for benefits to be well grounded: (1) There must be competent evidence of a current disability, usually shown by medical diagnosis; (2) There must be evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence; and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. Epps v. Gober, 126 F. 3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the alternative, the chronicity provisions of 38 C.F.R. 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court), lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. 3.303(b) if the condition is noted during service or during an applicable - 3 - presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In the present case, the service medical records show that, on his June 1972 entrance examination, the veteran reported that he suffered from shortness of breath. He complained of a cold and an upper respiratory infection in April 1975. No pertinent diagnosis was made. In April 1976, he complained of a cold with symptoms of a cough and was assessed as having an upper respiratory infection. In December 1976, he was treated for coughing up mucous and was again assessed with an upper respiratory infection. Treatment was provided for upper respiratory infections in April and June 1977, and in October 1977, the veteran complained of dyspnea with a nonproductive cough. The latter impression was pharyngitis. He complained of a productive cough in January 1978. There was no chest pain when coughing. The assessment was inflamed throat and head cold. In February and December 1978, he complained of coughing. The impression each time was an upper respiratory infection. In January 1981, he was reported to have bronchitis. The veteran complained of congested lungs and was assessed with a viral upper respiratory infection in July 1983. A July 1983 radiographic report indicated that the veteran had chest tightness and congestion and a fever over the prior five days. The X-ray study revealed slight accentuation of the lung markings on both sides probably due to bronchitis. No infiltration or congestion changes were seen. In an October 1984 Report of Medical History, the veteran complained of shortness of breath. In January 1990, the veteran complained of cold symptoms. The assessment was an upper respiratory infection. He complained of a cold with symptoms of cough and tight chest in September 1990. The assessment was sinusitis. He was treated for upper respiratory problems and was diagnosed with bronchitis in September 1991 - 4 - and an upper respiratory infection in January 1992. In March 1992, he complained of a sore throat times five days with severe coughing and severe sinus congestion. The assessment was viral syndrome. In his May 1992 retirement Report of Medical History, the veteran denied a history of asthma but stated that he did have shortness of breath and a chronic cough. In the physician's summary section, the examiner indicated that the veteran's symptoms were caused by dyspnea with exertion which ceased when he stopped smoking three years previously. The veteran was judged to be fine at the time of examination with clinical evaluation disclosing normal lungs and normal chest. The veteran does have a current diagnosis for asthma. This disorder was diagnosed on VA examination in December 1994 and again in VA outpatient treatment records, dated in February and November 1995. However, no examiner has linked this current disorder with the appellant's active duty service, and the appellant has not submitted any competent evidence otherwise suggesting such a nexus. Rather, the only evidence presented by the veteran that tends to show a connection between his lung disorder in service and his current disability are his own statements. As the veteran is not trained in the field of medicine these statements are not competent evidence. Under such circumstances this claim is not well grounded. Hence, this benefit is denied. Furthermore, the Board finds that any claim pursuant to 38 C.F.R. 3.317, which relates to undiagnosed illnesses resulting from service in the Persian Gulf, is also not well grounded and fails because the veteran's lung disorder has been attributed to a known clinical diagnosis, namely asthma. The regulations require that in order to qualify as an undiagnosed illness, any respiratory disorder (upper or lower) must not be attributed "by history, physical examination, or laboratory test," to any known clinical diagnosis. The December 1994 VA examination report relates the veteran's lung disorder to asthma. Hence, the veteran's claimed lung disorder is known and there is no "undiagnosed illness." 38 C.F.R. 3.317. - 5 - In reaching this decision the Board carefully considered the statements of the veteran, and his sincere belief that he has a lung disorder that is related to service. In this respect, on VA examination in December 1994, the veteran indicated that approximately five months following his return from the Persian Gulf he began to experience a tight feeling in his chest. The veteran, however, is a lay person who is untrained in the field of medicine. As such, he is not competent to offer an opinion as to the etiology of any current lung disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (lay testimony is not competent evidence when the question presented requires specialized knowledge). Finally, with regard to the representative's request for an additional examination, as the veteran has not presented a well- grounded claim, the duty to assist him, to include an additional VA compensation examination, does not arise. See Slater v. Brown, 9 Vet. App. 240 (1996); Franzen v. Brown, 9 Vet. App. 235 (1996). The United States Court of Appeals for the Federal Circuit held that only a person who has submitted a well-grounded claim can be determined to be a claimant for the purpose of invoking the duty to assist provisions of 38 U.S.C.A. 5107(a). See Epps v. Gober, 126 F.3d 1464, 1468-69 (1997). ORDER Service connection for a lung disorder as due to an undiagnosed illness is denied. DEREK R. BROWN Member, Board of Veterans' Appeals - 6 -