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Part Of My 2Nd Bva Decision


Here's another fine example of errors that vets have to put up with.

I represent myself, pro-se. Had I not caught this it would have probably

taken at least five years to get it corrected.


3. Entitlement to service connection for a claimed pulmonary disorder.


4. The Veteran is shown to have been treated for an upper respiratory infection, possible mild bronchitis, an acute respiratory disorder and a possible viral syndrome in service.

5. The currently demonstrated asthma and chronic bronchitis are shown as likely as not to the their clinical onset during the Veteran's period of active service.


3. By extending the benefit of the doubt to the Veteran, her pulmonary disability manifested asthma and bronchitis is due to disease or injury that was incurred in active service.

38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.102, 3.159, 3.303 (2009).


Pulmonary disability

The Veteran's STR shows that the Veteran was treated for chest congestion and coughing in September 1977, which was assessed as an upper respiratory infection.

In October 1977, during service, she presented with a cough and chest pain and was diagnosed as having a cold and possible mild bronchitis.

In December 1977, the Veteran was assessed with an "acute" respiratory disorder in response to complaints of

a runny nose and non-productive cough.

In response to complaints including soreness in the chest from coughing, the Veteran was diagnosed with a "resolving" viral syndrome in January 1978.

The clinical evaluation of her lungs at these times was normal.

In February 1978, the Veteran had a separation physical examination and complained of having shortness of breath from running and a chronic cough.

However, a clinical evaluation of the lungs was noted to be "normal."

The X-ray studies of the Veteran's chest performed in June and August 1979 were noted to be normal.

The VA treatment records dated in 1998 and 1999 show treatment for an upper respiratory infection and asthma. These records also note the Veteran's tobacco abuse.

There is no further pertinent evidence until June 2000, when D.L., M.D. submitted a statement on the Veteran's behalf and noted the Veteran had had multiple severe medical conditions related to military service,

including asthma and emphysema.

Dr. D.L. emphasized that there was evidence that she had had respiratory problems in the military.

A January 2001 outpatient note from Dr. D.L. notes the bronchitis and asthma were related to the Veteran's

conditions in the military.

He submitted a second statement in January 2001 indicating the Veteran's asthma was related to bronchitis in the military. The RO subsequently asked Dr. D.L. to provide a rationale for his opinion.

He responded that the September 1977 upper respiratory infection in service, as well her reports of shortness of breath upon separation, was the origin of her current asthma and bronchitis.

He noted that "asthma [was] a chronic process that [was] aggravated by stress, smoking, and recurrent infections

of the ears/sinus." In order to determine whether the Veteran had a respiratory disability related to service,

the Veteran was afforded two VA examinations.

The Veteran presented for a VA examination in February 2002.

The examiner indicated the Veteran was a heavy smoker.

After examination, the Veteran was diagnosed with a history of chronic obstructive pulmonary disorder (COPD)

and asthma, but the examiner was unable to relate these disabilities to service without resorting to speculation.

Confusingly, the VA examiner then indicated that "with a history of seasonal rhinitis, recurrent upper respiratory infections, chronic otitis media, shortness of breath on physical training runs, to

relate to her chronic obstructive pulmonary disease and asthma, [was] as likely as not to be service-connected.

She [was] also a heavy smoker." In light of this seemingly contradictory statement, the RO sought additional clarification as to the meaning of this opinion in June 2002.

The reviewing VA physician emphasized that the February 2002 VA examiner's first notation was correct, in that it was impossible to relate the Veteran's respiratory problems to military service without speculation.

This type of medical opinion expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993).

In November 2008, the Veteran was again examined in connection with her claim.

The examiner indicated that the claims file had been reviewed in connection with the examination, and described the above-cited findings in the STR. The Veteran's medical history and complaints were noted for the record.

The Board emphasizes that, contrary to the assertions of the Veteran, the examiner's notation that bronchitis began "during the service" was the Veteran's reported subjective history (see VA examination report, page 4), not the examiner's opinion as she asserted.

See the Veteran's September 2009 submission.

After spirometry testing, the Veteran was diagnosed with asthma and bronchitis.

The examiner opined it was less likely than not that the Veteran's disabilities were related to service, emphasizing she was not diagnosed with either of these conditions in the service or within a year of leaving the service (in this regard, the October 1977 assessment of bronchitis was speculative).

The examiner also highlighted two post-service examinations in January 1979 and June 1979 which were normal with respect to the lungs.

Based on a review of the entire record, the Board finds the evidence to be in relative equipoise in showing that the Veteran's asthma and bronchitis as likely as not had their clinical onset during her period of active service.

The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991).

The Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992).

The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators.

Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In this case, the Board finds that the May 2000 and January 2001 statements from Dr. D.L. to constitute probative opinions of nexus.

Dr. D.L. was relying on the Veteran's reported history and STR, with no apparent access to the Veteran's complete file. Indeed, Dr. D.L. indicated in January 2001 that the Veteran had provided the records he utilized to render his opinion, and his subsequent references indicate that the Veteran's STR was reviewed.

The Board cannot discount a medical opinion solely because it is based on history provided by the Veteran without also evaluating the credibility and weight of the history upon which the opinion is predicated. Kowalski v. Nicholson, 19 Vet. App. 171 (2005).

To the contrary, the VA examiner, who reviewed the Veteran's claims file and examined the Veteran in connection with the claim, provided no real opinion as to the likely etiology of the claim respiratory disorder.

Thus, in this case, the Board can afford no greater probative weight to the comments and opinion provided by the VA examiner, given the nature of the findings in service and the currently demonstrated lung disease.

See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Winsett, 11 Vet. App. at 424-25 (it is not error for the Board to value one medical opinion over another,

as long as a rational basis for doing so is given); Guerrieri, supra, at 470- 471 (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).

In addition to the medical evidence, the Board has carefully considered the lay evidence offered by the Veteran, including her testimony before the undersigned and her correspondence over the years to VA to the effect that her current respiratory disabilities have been evidenced continuously since separation from military service.

On this record, the Board finds her lay assertions to be credible. Lay testimony is competent to establish

the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (lay person may provide eyewitness account of medical symptoms).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when

(1) a layperson is competent to identify the medical condition,

(2) the layperson is reporting a contemporaneous medical diagnosis, or

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.

See Layno, 6 Vet. App. 465 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

The Board must weigh the absence if contemporaneous medical evidence against the lay evidence in determining credibility, but cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.

Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Thus, in resolving all reasonable doubt in the Veteran's favor, service connection for asthma and bronchitis is warranted.

***** ORDER

Service connection for asthma and bronchitis is denied.

SAY WHAT ???????????

Thankfully - I have been able to get this re-written and corrected to

"Service connection for asthma and bronchitis is granted."

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5 answers to this question

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I guess no one even proof reads these decisions!

It is enough to make a vet GET PTSD!

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Damn. Didn't they just make the exact same mistake last Decision? This is really crazy. ~Wings

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It's the same messed up order I posted about earlier, it's just now

I am able to post the exact wording.

I was in St. Louis recently and went to the VAMC by ambulance there (it sucked)

the diagnosis was Upper Respiratory Infection with acute asthma and bronchitis.

YEA for steroids - still feel crummy.

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There going to get it right Carlie, eventually. Remember that you do have Pulmonary HTN, It doesnt matter what the Pulmonary Folks say. The Echo Showed it. PFT's arent capable of showing it. Hang in there. It has been a long and winding road, but Hadit has built you an express way.


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It's the same messed up order I posted about earlier, it's just now

I am able to post the exact wording.

I was in St. Louis recently and went to the VAMC by ambulance there (it sucked)

the diagnosis was Upper Respiratory Infection with acute asthma and bronchitis.

YEA for steroids - still feel crummy.

That BVA decision was pretty bizarre. No no no no no no yes. Strange.

Remember, even though steroids are great for respiratory conditions, they are really rough on your heart. I hope they tapered you off of them gradually. The VA gave me a massive dose last year at their ER, but the taper was too fast. I felt like my head was going to explode and my heart was going to burst through my chest, like that monster in the first Alien movie.

I hope you feel better soon.

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