Citation Nr: 0923753 Decision Date: 06/24/09 Archive Date: 07/01/09 DOCKET NO. 07-00 115A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1970 to January 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 decision rendered by the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for COPD, also claimed as an upper respiratory infection, bronchitis, and pneumonia. The Veteran testified before the undersigned at a hearing in May 2009. A transcript of the hearing is of record. Additional evidence presented at the hearing was accompanied by a waiver of RO consideration. See 38 C.F.R. § 20.1304 (2008). FINDINGS OF FACT COPD is related to active military service. CONCLUSION OF LAW COPD was incurred during active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). The VCAA is not applicable where further assistance would not aid the appellant in substantiating the claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5- 2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. Legal Criteria Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2008). The Veteran alleges that his COPD was caused by exposure to asbestos, herbicides, or other chemicals and fuels during service in Vietnam. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that a veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within one year, after the last date on which the veteran was exposed to an herbicide agent during active service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(ii) (2008). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Diseases Not Associated With Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630-41 (May 20, 2003). Failure to establish presumptive service connection based on herbicide exposure does not preclude the Veteran from establishing direct service connection. See Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Veteran also contends that his COPD disorder was caused by exposure to asbestos. There is no statute specifically dealing with asbestos and service connection for asbestos- related diseases, nor has VA promulgated any specific regulations; however, VA has issued a circular on asbestos- related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in the VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The guidelines provide that the latency period varies from 10 to 45 years between first exposure and development of the disease. The guidelines also indicate that an asbestos-related disease can develop from brief exposure to asbestos or from being a bystander. The most common asbestos related disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See M21-1, part VI, para. 7.21(a)(1). These provisions are not substantive, but must be considered by the Board in adjudicating asbestos related claims. VAOPGCPREC 4-2000 (2000); 65 Fed. Reg. 33,422 (2000). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Because the Board is granting service connection on a direct basis, it will not further consider entitlement on a presumptive basis or as related to asbestos exposure. Service treatment records show the Veteran was hospitalized for an upper respiratory infection (URI) in April 1970. He was seen in August 1971 with a report of feeling fatigued for several months. The records further show treatment on at least three occasions between December 1971 and January 1972 for symptoms of cold, fever, sore throat, inflamed tonsils, cough and sinus drainage. He was seen on two more occasions in January 1972 and prescribed antibiotics, other medications, and 24-hour bed rest. The last note of treatment in January 1972 shows he reported two prior episodes of tonsillitis; he was advised to have a tonsillectomy. There are no further records of treatment. The January 1972 physical examination for separation shows that a chest X-ray was within normal limits. The Veteran report his general medical condition was "fair." Post-service medical records are significant for treatment for respiratory problems beginning in April 1999, with prior treatment for pneumonia in the fall of 1998. COPD was diagnosed in November 1999, and since then pertinent diagnoses have included, but have not been limited to, tobacco addiction, pulmonary hypertension, emphysema, sleep apnea, and respiratory failure. The records reveal that the Veteran was a heavy smoker with over a 30 pack-year history, with cessation beginning in 2000. Records from the Social Security Administration (SSA) show the Veteran is currently in receipt of SSA disability benefits based on diagnoses of severe COPD and cor pulmonale, secondary to chronic pulmonary vascular hypertension. The Veteran was afforded a VA examination in August 2008, where he reported a history of severe pulmonary infections during basic training, as well as exposure to various fumes and Agent Orange herbicide. Referring to the August 2005 rating decision, the examiner noted that the Veteran was treated for an upper respiratory infection (URI) during service, but the military medical records did not indicate any chronic respiratory disorder at the time of separation. He also noted that the post-service private medical records did not relate the current condition to service. The examiner indicated that the Veteran was a heavy smoker and the private records consistently showed at least a 30-year pack history of smoking with anywhere from 1 to 1.5 packs per day. He referred to the Veteran's current respiratory disorders as "advanced emphysema" and "severe obstructive airways disease." The examiner opined that the Veteran's advanced emphysema was not related to any medical disorder incurred during military service and that "[I]n any medical circle his advanced emphysema would be blamed squarely on his cigarette smoking and nothing else." He also stated that the Veteran's obstructive airways disease was of no relationship to military service. In an April 2009 opinion, the Veteran's private treating physician, Dr. L.S. wrote that the Veteran had underlying severe lung disease. The current diagnoses were COPD and significant pulmonary hypertension, with right heart failure in the past. Dr. L.S. noted that the Veteran's medical history included two hospitalizations that were lengthy for what he thought "sounded like a pneumonia" in the early 1970s during the Vietnam War. He stated his opinion "as a board-certified pulmonary and critical care physician, that severe prior pulmonary infections cannot be excluded as a contributing factor to his current severe debilitated lung state." He added that, while the Veteran's current pulmonary status was clearly due, in part, to smoking-induced lung damage, additional damage likely occurred from the two previous severe respiratory infections. In a March 2005 statement submitted with his claim, the Veteran indicated that he worked as a general laborer at a steel company, prior to service- from September 1969 until he was drafted in February 1970. After service, he worked at a steel company for about 4 years. He then worked at a facility that manufactured chemicals for use in the water treatment of boilers, cooling systems and wastewater treatment systems until February 1983. Throughout this 4-year period, he was promoted to a sales manager and was transferred to various cities. After leaving that company, he continued to work in sales at various other chemical companies. He noted that in June 1990, he failed a pulmonary function test (PFT) during a pre-employment physical examination at one of these chemical companies. He noted that he was diagnosed with COPD in September 1999. Turning to the merits of the claim, the Veteran is currently diagnosed with advanced emphysema and severe end-stage COPD. COPD refers to a group of lung diseases that block airflow and make it increasingly difficult for you to breathe. Emphysema is one of the two main conditions that make up COPD. See http://www.mayoclinic.com/health/copd/DS00916. Hence, a current disability is established. The evidence indicates the Veteran was treated for an URI during military service, and also for upper respiratory symptoms in December 1971 and January 1972, which were not linked to any specific diagnoses. There is evidence that the Veteran began smoking in service and continued to smoke for many years afterward. His current lung disease has been directly and explicitly linked to this lengthy smoking history by the 2009 VA examiner (and by other non-specific inferences in the cumulative private treatment records). Compensation is not payable for disability resulting from the use of tobacco products. 38 U.S.C.A. § 1103 (West 2002). Nonetheless, the Veteran's treating physican has opined that the Veteran's in-service pulmonary infections were a likely contributing factor to his current severe debilitated lung state and pulmonary status. The credibility and weight to be attached to the contrasting opinions are within the providence of the Board as adjudicators. See Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualification and analytical finding, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Skylar v. Brown, 5 Vet. App. 140 (1993). While the VA examiner had the claims file and service treatment records at his disposal, the Veteran appears to have related the same, if not similar recollection of his in- service symptoms to the private physician. Thus, both opinions appear to have been based on the Veteran's service medical history. In addition, both of the opinions were offered by licensed physicians, and the private physician is a board-certified pulmonary and critical care physician. Thus, the opinions are competent. Moreover, while supporting rationales accompanied each opinion, neither explanation was especially detailed on the narrow issue of nexus. Hence, the Board finds that both opinions are of relatively equal probative value and therefore the medical evidence is in equipoise. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The medical evidence is in equipoise. Thus, reasonable doubt must be resolved in the Veteran's favor. COPD was incurred during service. ORDER Service connection for COPD is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs