Citation Nr: 1000085 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 07-21 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease claimed as secondary to service connected rhinitis. 2. Entitlement to an initial compensable evaluation for rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The Veteran had active duty service from February 1957 to February 1960 This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Travel Board hearing in August 2009. The issue of entitlement to an initial compensable evaluation for rhinitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will inform the Veteran if any further action is required on his part. FINDING OF FACT The preponderance of the competent evidence of record demonstrates that the Veteran's chronic obstructive pulmonary disease is caused by his history of smoking; there is no competent evidence of record linking chronic obstructive pulmonary disease to active duty on a direct basis or to rhinitis on a secondary basis. CONCLUSION OF LAW Chronic obstructive pulmonary disease was not incurred in or aggravated by the veteran's active duty service, nor is chronic obstructive pulmonary disease proximately due to or caused by a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations set forth certain notice and assistance provisions. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). After reviewing the claims folder, the Board finds that the appellant has been notified of the applicable laws and regulations which set forth the criteria for entitlement to service connection for the disability adjudicated by this decision. Specifically, the discussion in a June 2005 VCAA letter has informed the appellant of the information and evidence necessary to warrant entitlement to service connection for chronic obstructive pulmonary disease on a direct and secondary basis. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notice required by VCAA and implementing regulations was furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In this case, the RO's decision came after complete notification of the appellant's rights under the VCAA. The VCAA notice was timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Under these circumstances, the Board finds that all notification and development action needed to render a fair decision on the claim decided herein has been accomplished and that adjudication of the claim, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. See Dingess/Hartman, supra. In the present appeal, the veteran was provided with notice of what types of information and evidence were needed to substantiate his claim, but he was not provided with notice of the types of evidence necessary to establish a disability rating or an effective date for the disability on appeal. Despite the inadequate notice provided to the veteran on this element, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In that regard, as the Board concludes below that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for chronic obstructive pulmonary disease, any questions as to the disability rating or effective date to be assigned are rendered moot. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). The Board finds that a VA examination is not necessary to decide the COPD claim, as the standards of the Court's recent decision in McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met. Under McLendon, VA must provide a medical examination in a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Id at 81. In this case, there is no persuasive indication that the COPD may be associated with the Veteran's service or his rhinitis, and there is sufficient competent evidence of record to decide the claim. Associated with the claims file is the report of an August 2005 private medical examination which provides a strong medical opinion as to the etiology of the chronic obstructive pulmonary disease. This opinion was based on a review of pertinent medical evidence and took into account the Veteran's reported history at that time including his report of in-service symptomatology he experienced. No additional pertinent evidence has been identified by the appellant as relevant to the issue adjudicated by this decision. Under the circumstances of this particular case, no further action is necessary to assist the appellant. Competency and Credibility The appellant can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, and having a cough. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the appellant as a lay person has not been shown to be capable of making medical conclusions; thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). While the appellant is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." The Court found the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Although the appellant is competent in certain situations to provide a diagnosis of a simple condition such as varicose veins, the appellant is not competent to provide evidence as to more complex medical questions and is not competent to provide an opinion as to the etiology of the currently existing chronic obstructive pulmonary disease. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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")). See Barr. The issue on appeal does not involve a simple diagnosis or medical assessment. See Jandreau; see also Woehlaert. The appellant is not competent to provide more than simple medical observations such as noting that he had colds during service. The appellant is not competent to provide a complex medical opinion regarding the etiology of the claimed chronic obstructive pulmonary disease. See Barr. Service connection criteria 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; 38 C.F.R. §§ 3.303, 3.304. In addition, service connection may 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). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310; see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The term "disability" refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Entitlement to service connection for chronic obstructive pulmonary disease claimed as secondary to service connected rhinitis. In May 2005, the Veteran submitted a claim of entitlement, in pertinent part, for chronic obstructive pulmonary disease. He wrote that he has been diagnosed with chronic obstructive pulmonary disease as a direct result of chronic rhinitis, colds and coughs he had while in the service. A review of the claims file reveals intermittent complaints of, diagnosis of or treatment for colds and coughs including in March 1957, November 1958 and October 1958. Additionally, the Veteran was hospitalized for influenza in October 1957. No pertinent abnormalities were noted on the report of the Veteran's separation examination in November 1959. Clinical evaluation of the lungs and chest was determined to be normal at that time. Chronic rhinitis was noted. The Veteran denied having or ever having had asthma but reported having or having had shortness of breath and a chronic cough on a Report of Medical History he completed at the same time. Thereafter there are no medical records showing complaints of, diagnosis of or treatment for chronic obstructive pulmonary disease until many years after the Veteran's discharge. The first clinical evidence of the presence of respiratory problems is dated in the 1980's. The medical history provided by the Veteran at this time indicates his breathing disabilities began, at the most, ten years prior without reference to problems during active duty. Furthermore, the preponderance of the competent medical evidence attributes the chronic obstructive pulmonary disease to the Veteran's well documented history of smoking. For example, a private clinical record dated in February 1982, indicates the Veteran was seeking treatment, in part, for shortness of breath which he reported had been going on for the last ten years. He smoked two packs per day for 25 years but stopped five years prior. He denied a history of asthma but reported a history of bronchitis. The pertinent assessment was a suspicion of emphysema from his long history of smoking. A May 1984 private clinical record indicates the Veteran was still having a lot of problems with dyspnea and his rhinorrhea was markedly improved with medication. The assessment was that the Veteran had underlying severe chronic obstructive pulmonary disease related to his previous history of smoking, with some reversible component. A March 1987 private clinical record indicates the Veteran reported dyspnea on exertion around 1982. Since that time, he has been increasingly short of breath. He was an ex- smoker and had a history of bronchitis and possibly asthma as a child. The impression was chronic obstructive pulmonary disease which was unusually severe for the Veteran's smoking history. It was suspected that there was clearly some element of reactive airway disease. In October 1996, the Veteran reported that he did not have any significant problems with his lungs until approximately the 1980's when he started experiencing shortness of breath. In August 2005, the Veteran obtained a second opinion regarding the possible relationship between occupational exposures he had and their relationship to his chronic obstructive pulmonary disease. The Veteran reported that he had an abnormal spirometry in approximately 1972. He felt fine at that time and did not feel it was necessary to see a doctor for the abnormal tests. He was smoking at that time and had quit smoking in 1980. He had smoked for 25 years at one and a half packs of cigarettes per day. In approximately 1981, he began to experience shortness of breath with exertion. With regard to service, the Veteran reported that he was exposed to tear gas but there were no other exposures. He had frequent colds and upper respiratory infection while in Germany. At the time of the examination, the Veteran denied problems with a sore throat, nasal discharge, postnasal drip, or sinus symptoms. He had nasal congestion, especially at night. The Veteran's post-service occupations were reported. Numerous outside medical records were reviewed. The author concluded that the Veteran had a history of severe chronic obstructive pulmonary disease. It was most likely that the lung disease was related to his history of smoking and it was unlikely related to work given the longevity of his chronic obstructive pulmonary disease and his early disease onset prior to numerous exposures. The Board places great probative weight on the findings of this examiner. It is based on a review of pertinent medical evidence and a self-reported medical history from the Veteran including his report of in-service symptomatology and post- service nasal congestion. The examiner did not find that the chronic obstructive pulmonary disease was due to rhinitis or to any in-service symptomatology. The only evidence of record which indicates that the currently existing chronic obstructive pulmonary disease was due to the Veteran's active duty service or to a service- connected disability is the Veteran's own allegations and testimony and a single letter purportedly from a physician linking chronic obstructive pulmonary disease to the Veteran's service-connected rhinitis. The Veteran's opinion as to the etiology of his chronic obstructive pulmonary disease is without probative value. This does not involve a simple diagnosis. As set out above, the Veteran is not competent to provide an opinion on anything more than a simple diagnosis. To the extent that the Veteran alleges he was informed by health care professionals that he had chronic obstructive pulmonary disease as a result of his rhinitis, it must be noted that the U.S. Court of Appeals for Veterans Claims has held that a lay person's statement about what a physician told him or her, i.e., "hearsay medical evidence," cannot constitute medical evidence, as "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." See Robinette v. Brown, 8 Vet. App. 69 (1995). The Veteran submitted a statement dated in July 2007 which is purportedly from a physician. The author opines that the Veteran's chronic obstructive pulmonary disease is at least as likely as not to have been caused by his chronic rhinitis condition. The Board questions the authenticity of the evidence for several reasons. The opinion is not on any type of professional letterhead and the purported physician's first name is not provided at all. The author is simply identified as Doctor Crossno. Furthermore, the letter uses strange punctuation and incorrect grammar which leads the Board to question the educational level of its author. Finally, the letter uses language which is almost identical to a June 2007 letter the Veteran previously submitted from another medical professional. The June 2007 letter appears to be authentic as it is written on professional letterhead and the physician's name is provided in full. The probative value of the July 2007 letter is further undercut by the author's failure to address the Veteran's well documented history of smoking. Based on the above, the Board places no probative value on the July 2007 letter. The Board finds there is no continuity of symptomatology from the time of the Veteran's discharge to the 1980's when respiratory symptomatology was first noted in medical records. The Veteran's self-reported medical history included in medical records prepared prior to the submission of this claim document that the Veteran reported the onset of his symptomatology to the 1980's or late 1970's. The Veteran's April 2005 assertion that he had had a chronic cough and colds is totally undercut by the prior reports of history he provided in the 1980's and 1990's. It is the duty of the Board as the fact finder to determine the credibility of the testimony and other lay evidence. Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). It is further noted that not only may the Veteran's memory have dimmed with time, but self interest may play a role in the more recent statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [interest may affect the credibility of testimony]; cf. Pond v. West, 12 Vet. App. 341, 346 (1999). The Board finds the Veteran's most recent statements and testimony regarding the purported continuity of symptomatology are outweighed by his prior inconsistent statements indicating that respiratory symptomatology began many years after the Veteran's active duty service. The Board finds that the competent evidence of record demonstrates that the Veteran's chronic obstructive pulmonary disease is due to his history of smoking. There is no persuasive competent evidence of record linking chronic obstructive pulmonary disease directly to the Veteran's active duty service or secondarily to his service-connected rhinitis. As such, service connection is denied for chronic obstructive pulmonary disease on a direct basis and as secondary to the service-connected rhinitis. After reviewing the totality of the relevant evidence, the Board is compelled to conclude that the preponderance of such evidence is against entitlement to service connection for chronic obstructive pulmonary disease. It follows that there is not a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination pursuant to 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for chronic obstructive pulmonary disease claimed as secondary to rhinitis is denied. REMAND The Veteran submitted a claim of entitlement to an increased rating for his rhinitis. The service-connected rhinitis is evaluated as non-compensably disabling under Diagnostic Code 6522 which provides that a 30 percent evaluation is warranted for polyps and a 10 percent evaluation is warranted for rhinitis without polyps but with a greater than 50 percent obstruction of nasal passages on both sides or complete obstruction of one side. The last time the disability was evaluated for compensation and pension purposes by VA was in October 2005. At that time, physical examination revealed no nasal airway obstruction. The Veteran reported congestion which increased when lying down. The pertinent diagnosis was chronic rhinitis. In August 2009, the Veteran testified before the undersigned that he now experiences an over 50 percent obstruction in his nasal passages. Furthermore, a May 2006 computed tomography examination of the sinuses was interpreted as revealing a retention cyst versus hyperplastic polyps maxillary sinus. Thus there is evidence that the service-connected rhinitis may have increased in symptomatology since the time of the last VA examination in October 2005. The veteran is entitled to a new VA examination where there is evidence (including his statements) that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's outstanding VA medical records from the Denver facility dated from 2006 to the present. 2. Schedule the Veteran for an examination by a health care professional to determine the extent and severity of the service-connected rhinitis. The claims file should be made available to the examiner for review of pertinent documents therein in connection with the examination. The examination report should reflect that such a review was conducted. All clinical and special test findings should be clearly reported. The examiner must provide an opinion as to whether it is as likely as not that the service-connected rhinitis is productive of rhinitis, without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side, and must also provide an opinion as to whether it is at least as likely as not that the service- connected rhinitis is productive of polyps. 3. After completion of the above, review the expanded record, and readjudicate the issue of entitlement to an initial compensable evaluation for rhinitis. The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs