Citation Nr: 0813870 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-02 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from September 1959 to April 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the veteran's claim of service connection for chronic obstructive pulmonary disease (COPD). The veteran disagreed with this decision in October 2003. He perfected a timely appeal in December 2004 and requested a Travel Board hearing which was held in September 2005. In November 2006, the Board remanded the veteran's claim to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's currently diagnosed COPD is not related to active service. CONCLUSION OF LAW Chronic obstructive pulmonary disease (COPD) was not incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in August 2003 and in February 2007, VA notified the veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the veteran to submit medical evidence, statements from persons who knew the veteran and had knowledge of his COPD during service, and noted other types of evidence the veteran could submit in support of his claim. The veteran was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has substantially satisfied the requirement that the veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In response, the veteran notified VA in August 2006 that he had no further information or evidence to submit in support of his claim. Additional notice of the five elements of a service- connection claim was provided in February 2007, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the August 2003 letter was issued to the veteran and his service representative prior to the September 2003 rating decision which denied the benefits sought on appeal; thus, this notice was timely. Since the veteran's claim is being denied in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the veteran. See Dingess, 19 Vet. App. at 473. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file; the veteran does not contend otherwise. The veteran also has been afforded a VA examination to address the contended causal relationship between his currently diagnosed COPD and active service. In summary, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and no further action is necessary to meet the requirements of the VCAA. The veteran contends that he incurred chronic obstructive pulmonary disease (COPD) during active service. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. A review of the veteran's service medical records indicates that, at his enlistment physical examination in July 1959, the veteran's medical history included shortness of breath. Clinical evaluation of the lungs and chest was completely normal. The veteran's clinical evaluation was unchanged on periodic physical examination in July 1962, December 1971, January 1975, and December 1976. The veteran was not treated for COPD during active service. He denied any medical history of shortness of breath at his separation physical examination in November 1980. Clinical evaluation was completely normal. The veteran's post-service VA medical records show that, on outpatient treatment in March 1999, the veteran complained of COPD. His long history of tobacco smoking was noted. The assessment was probable COPD. On outpatient treatment in February 2003, the veteran complained of problems breathing at night. His medical history included COPD. Physical examination showed a breathing problem due to COPD. The assessment included COPD. On outpatient treatment in December 2004, the veteran reported that he smoked a pack of cigarettes a day. Physical examination showed no chest pain and clear lungs. The assessment included COPD. A review of the veteran's post-service treatment records from Brooke Army Medical Center ("BAMC") shows that spirometry in March 1999 revealed a mild obstructive ventilatory defect. The veteran was hospitalized at BAMC in April 1999 for diverticulitis. The diagnoses included COPD. The veteran was hospitalized again at BAMC in June 1999 for a partial small bowel obstruction. The diagnoses included COPD. The veteran was hospitalized briefly at BAMC in August 2000 for a left radical nephrectomy. The diagnoses included mild COPD. On outpatient treatment at BAMC in January 2001, the veteran complained of shortness of breath. Objective examination showed lungs that were hyper-resonant to percussion. The assessment included COPD secondary to smoking. The veteran was hospitalized at BAMC for a left gastrointestinal bleed in March 2003. The diagnoses include COPD. On VA examination in March 2007, the veteran complained of dyspnea on exertion, an inability to walk more than 2 or 3 blocks without stopping to catch his breath, a chronic cough with productive white sputum, and occasional nasal congestion with white to clear mucous from his nose. The VA examiner reviewed the veteran's claims file, including his service medical records. The veteran denied any hospitalizations for lung problems or COPD exacerbations. Physical examination showed clear lungs bilaterally with diminished breath sounds but no crackles or wheezing. An August 2006 chest x-ray showed hyperinflation of the lungs, apical emphysematous changes, and perihilar interstitial disease "that are presumed to be due to advanced COPD." The VA examiner opined that the etiology of the veteran's COPD was likely due to or a result of his history of tobacco smoking. The veteran had been smoking for almost 50 years, beginning with 11/2 to 2 packs per day and about 1/2 a pack a day currently. The diagnosis was COPD "which seems to be mainly obstructive and by x-rays is confirmed to be emphysema." The Board finds that the preponderance of the evidence is against the veteran's claim of service connection for COPD. The veteran was not treated for any lung problems during active service and repeated physical examinations during active service were normal. It appears that he was first treated for COPD in March 1999, or approximately 18 years after his service separation in April 1981, when he complained of breathing problems and the assessment included probable COPD. The veteran was first diagnosed with COPD while hospitalized for unrelated medical issues at Brooke Army Medical Center in April 1999. With respect to negative evidence, the fact that there was no record of any complaint, let alone treatment, involving the veteran's condition for many years is significant. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). The post-service medical evidence shows continuing outpatient treatment for COPD. These records also document a long history of tobacco smoking, as the VA examiner noted in March 1999. Following outpatient treatment at Brooke Army Medical Center in January 2001, the examiner determined that the veteran's COPD was secondary to his history of smoking. Similarly, after reviewing the veteran's entire claims file, including his service medical records and post-service treatment records, the VA examiner concluded in March 2007 that the veteran's COPD was likely due to or a result of his 50-year history of smoking up to 2 packs of cigarettes per day. As the preponderance of the evidence is against the veteran's claim, the benefit-of- the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for COPD is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs