BVA9500276 DOCKET NO. 93-08 164 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The veteran served on active duty from May 1952 to May 1957 and from October 1959 to October 1972. A historical review of the record indicates that unappealed rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) dated in February 1973 and July 1977, which denied service connection for a chest condition, pertained to cardiovascular disease including hypertension, which was allowed by a Board of Veterans' Appeals (Board) decision in April 1982. The veteran's claim for service connection for chronic obstructive pulmonary disease, first filed in September 1991, has been developed by the RO on a de novo basis. CONTENTIONS OF APPELLANT ON APPEAL It is contended by the veteran, in essence, that his current pulmonary disease is etiologically related to many episodes of respiratory infections during 20 years of military service. As an example, he points out that in August 1967, chest X-rays revealed "Linear scarring in the left midlung is again identified." In January 1969 upper respiratory infection, organism undetermined, was noted. He maintains that a thorough review of his complete service medical records would confirm the fact that he definitely had the early onset of some type of progressive respiratory disorder and that, although undiagnosed in service, an etiologic relationship exists between the respiratory symptoms present in service and lung disorder diagnosed following separation from active duty. He believes that missing service medical records dating between approximately May 1952 through May 1957 show evidence that he had "spots" on his lungs. He requests that such records be obtained. He also notes that, following his discharge in 1957, he was assigned to the inactive Reserve Continental Air Command and that the medical records during such time would substantiate the spots noted in his lungs in 1953 while in North Africa. The veteran maintains that his current chronic obstructive pulmonary disease, therefore, may not be disassociated from the numerous episodes of respiratory infections noted in service and X-ray studies reflecting spots on his lungs DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for chronic obstructive pulmonary disease. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Any lung symptoms present during active duty were not more than acute and transitory in nature and are not shown to be associated with any chronic lung disorder at that time, and are without any etiologic link to the chronic obstructive pulmonary disease first noted many years following separation from active duty, based on the lack of continuity of post service symptomatology. CONCLUSION OF LAW Chronic obstructive pulmonary disease was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303(d)(b) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist Upon review of the record the Board concludes that the veteran's claim is well grounded within the meaning of the statute and judicial construction. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The VA, therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. In this regard, we recognize that attempts by the RO to obtain any additional outstanding service medical records than those currently on file have been unsuccessful. Following the RO's request for any available service medical records dating from 1952 through 1957 and any medical records at the Office of the Surgeon General, correspondence received through the National Personnel Records Center in March 1992, indicates that the facility had no record of where or when such records were sent after the veteran's retirement. Moreover, there was no indication that Surgeon General Office records were available. As it stands, the evidence of record consists of service medical records primarily dating between May 1952 and June 1952 and from May 1957 through June 1972, numerous post-retirement medical records through private and VA medical providers and through the United States Air Force Clinic, Rickenbacker Air Force Base, Ohio, dating between approximately June 1975, and June 1991, and a transcript of a personal hearing held before a hearing officer at the RO in September 1992. Such evidence provides a sufficient basis to address the merits of the veteran's claim. We note that there is no indication that there are additional records which the RO has not attempted to obtain. Accordingly, no further assistance to the veteran is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (West 1991). II. Pertinent Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Further, for the showing of chronic disease in service, there are 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 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) (1993). Regulations also provide that 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(d) (1993). We note that the record does not show, nor does the veteran maintain, that he directly participated in combat for consideration under the provisions of 38 U.S.C.A. § 1154(b) (West 1991). III. Chronic Obstructive Pulmonary Disease A review of the numerous service medical records on file shows that when the veteran was examined in May 1952, for enlistment purposes, the examination of the lungs and chest was normal. A chest X-ray study was not performed. The veteran reported a history of shortness of breath; however, he specifically denied having any problems with asthma. He also reported a history of chronic or frequent colds, and ear, nose, or throat trouble. Although a clinical notation of "asthma" was noted on a medical record dated in early June 1952, a clinical evaluation of the respiratory system was reported as negative. In mid-June 1952, the veteran underwent a period of hospitalization for symptoms solely attributed to pharyngitis, acute, organism undetermined. No pertinent objective findings were recorded. No lung symptoms were reported. The record lacks any subsequent service clinical data until a report of a discharge examination dated in May 1957. A clinical evaluation of the lungs and chest was normal. A chest X-ray was negative. It was noted as significant or interval history that the veteran had diphtheria, mumps, and whooping cough in childhood, with no complications or sequelae. He also had had sinusitis in service, which he also had prior to entering service. There was no mention of any lung disorder. On a report of medical history, the veteran complained of ear, nose and throat trouble, chronic and frequent colds, and sinusitis, although he denied having any asthma, shortness of breath or any pertinent problems pertaining to a lung disorder. On the report of a reenlistment examination dated in October 1957, the examination of the lungs and chest was normal. A chest X-ray was normal. In April 1958, the veteran was treated for sore throat and pharyngitis. No lung disorder was noted at that time. A report of a physical examination dated in October 1958 reflected a normal clinical evaluation of the lungs and chest. A chest X-ray was negative. In January 1959, he was treated for complaints of persistent sore throat of six years' duration. Impression was infection involving the pharyngeal lymphoid tissue. An ear, nose and throat evaluation in February 1959 showed much symptomatic and objective improvement of the lymphoid tissue still present but not inflamed. He was to avoid excessive smoking and finish the medication. Reports of physical examinations dated in August 1958, August 1960, and June 1961 revealed normal clinical evaluations of the chest and lungs, and negative chest X-rays. No pertinent lung complaint was noted. The veteran denied any pertinent medical history since his last physical examination. In October 1961 and January 1962, the veteran was treated for episodes of upper respiratory infection with chest tightness and acute "strep throat" with pharyngitis. No objectively demonstrated lung disorder was noted. Also noted was indication of sinusitis. A report of a physical examination dated in July 1962 reflected a normal clinical evaluation of the lungs and chest, although he had much purulent mucus in the nasal passages. A chest X-ray was negative. Between August 1962 and March 1963, he was treated for bouts of pharyngitis with sore throat, but without any evidence of a lung disorder noted. On a report of a physical examination dated in August 1963, an examination of the chest and lungs was normal. A chest X-ray was negative. No significant interval medical history was noted. On the report of a physical examination dated in July 1964, an examination of the lungs and chest was normal. A chest X-ray was within normal limits. No pertinent significant medical history was reported. On physical examination in August 1965, the lungs and chest were normal. A chest X-ray study was negative. It was noted as significant interval history that he had had viral pneumonitis in July 1965 that cleared on medication with no complication or sequelae. He denied having any problems with lower respiratory symptoms. In September 1965, he was treated for upper respiratory infection. No objective findings were noted. Subsequent service medical records continue to reflect episodes of treatment for upper respiratory infection dating through a report of a physical examination dated in July 1966 without mention of any lung symptoms. At the time of the July examination, a clinical evaluation reflected normal chest and lungs. A chest X-ray was negative. Significantly, the reported interval medical history primarily pertained to upper respiratory symptoms of the nose and sinus, occasionally symptomatic, which responded to treatment with no complication or sequelae, and frequent colds averaging 6 or 7 per year, with no complication or sequelae. There was no mention of any lung symptoms. A report of a physical examination dated in April 1967 reflected a normal clinical evaluation of the lungs and chest. Chest X-ray study was negative. The veteran's reported respiratory medical history revealed sinusitis with congestion and post nasal drainage associated with upper respiratory infections, and chest pain secondary to nervous tension in 1963, but no pain since that time. No pertinent lung symptoma- tology was reported. A report of a physical examination dated in August 1967 reflected normal clinical evaluation of the lungs and chest. However, it was noted that when a chest X-ray was compared with previous examination, linear scarring in the left midlung was noted as being again identified, although no significant change was present and no evidence of active pulmonary inflammatory disease was present. The veteran's respiratory complaints were primarily of an upper respiratory nature and without any mention of lung symptoms. He noted that his chest pain was secondary to nervous tension in 1963 with no pain since. Subsequent service medical records between approximately January 1968 through the veteran's retirement from active duty continued to reflect episodes of treatment for colds, acute diffuse upper respiratory infection with pharyngitis manifested by inspiratory wheezing, but without chronic lung pathology. On an examination in June 1972 for purposes of retirement from active duty, an objective evaluation of the lungs and chest was normal. A chest X-ray was normal. No pertinent lung pathology was noted as significant or interval medical history. The veteran denied having any pertinent respiratory symptoms on a report of medical history at that time. Any chest pain was of undetermined etiology. The post-service evidence consists of numerous VA and private clinical data and post-retirement treatment records from Rickenbacker Air Force Base dating between approximately June 1975 and June 1991. While these records refer to episodes of treatment for upper respiratory infections and pharyngitis primarily between 1977 and 1979, no pulmonary pathology was noted until acute bronchitis was noted in November 1986, with chronic obstructive pulmonary disease noted during a period of hospitalization in June 1991, along with a long history of chronic bronchitis. The veteran gave sworn testimony at a hearing on appeal at the RO in September 1992. He noted that his current chronic obstructive pulmonary disease developed as a consequence of numerous episodes of respiratory infections in service as supported by X-ray studies reflecting spots on his lungs during active duty. Following a comprehensive review of the evidence of record, the Board recognizes that some of the veteran's service medical records dating between June 1952 and May 1957 may be missing. The numerous available service medical records dating between May 1952 and June 1972, however, clearly demonstrate that any lung symptoms associated with the upper respiratory disorders during active duty were not more than acute and transitory in nature and are not shown to be associated with any chronic lung disorder at that time and are without any etiologic link to the chronic obstructive pulmonary disease first noted many years following separation from active duty, in view of the lack of continuity of post-service symptomatology. The isolated clinical notation of asthma, indicated apparently by history in June 1952, was not supported by objective findings and is not now shown. Moreover, we note that the chest X-ray findings of scarring in the left midlung in August 1967 were not associated with a chronic lung disorder. Subsequent chest X-rays in service showed clearing. As it stands, the veteran's self-reported history, testimony, and arguments raised on appeal comprise the only association between any respiratory symptoms present in service with the current chronic obstructive pulmonary disease; however, his arguments are substantially outweighed by the clinical data of record. We note that the veteran is not competent to make such diagnosis or offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 494 (1992). Because of the absence of any chronic pulmonary pathology in service or for many years thereafter, without any etiologic link to service demonstrated, a grant of service connection for chronic obstructive pulmonary disease is not warranted. ORDER Entitlement to service connection for chronic obstructive pulmonary disease is denied. WILLIAM J. REDDY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.