Citation Nr: 1006992 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 08-21 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a respiratory disability. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The Veteran had active service from August 1957 to October 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied service connection for a respiratory disability. The Veteran's disagreement with this rating decision led to this appeal. In January 2008, the Veteran testified before a Hearing Officer at the RO. In April 2009, the Veteran testified before the undersigned Veterans Law Judge. Copies of the transcripts of these hearings have been associated with the claims file. Subsequently, in September 2009, the Board referred the appeal to a VA medical expert opinion. This opinion has been obtained and a copy of the opinion has been associated with the claim file. The appeal is ripe for adjudication upon the merits. FINDINGS OF FACT 1. All evidence necessary to decide the claim adjudicated upon the merits has been obtained; the Veteran has been provided notice of the evidence necessary to substantiate this claim and has been notified of what evidence he should provide and what evidence VA would obtain; there is no indication that the Veteran has evidence pertinent to this claim that he has not submitted to VA. 2. The preponderance of the evidence is against a finding that the respiratory disability, currently diagnosed as chronic obstructive pulmonary disease (COPD), is attributable to service or any incident of service; the preponderance of the evidence indicates that the disability is attributable to tobacco use. CONCLUSION OF LAW Service connection for a respiratory disability is not warranted. 38 U.S.C.A. §§ 1103, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The VCAA provides, among other things, for notice and assistance to VA claimants under certain circumstances. VA has issued final rules amending its adjudication regulations to implement the provisions of the VCAA. See generally 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The intended effect of these regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits or who attempts to reopen a previously denied claim. In order to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. During the pendency of this appeal, 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 38 U.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. Additionally, this notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. The Veteran was issued an October 2006 VCAA notification letter. This notice fulfilled the provisions of 38 U.S.C.A. § 5103(a). The Veteran was informed about the information and evidence not of record that is necessary to substantiate his claim; the information and evidence that VA will seek to provide; and the information and evidence the claimant is expected to provide. In addition, this letter provided the Veteran notice regarding the evidence and information needed to establish disability ratings and effective dates, as outlined in Dingess. In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II), the Court held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the October 2006 VCAA letter noted above was issued prior to the July 2007 rating decision on appeal. Thus, the VCAA notification letter was timely. The Board also finds that all necessary assistance has been provided to the Veteran. The claims file contains service treatment records, to include the separation report of medical history and medical examination. The Board is aware, however, that the record indicates that the service treatment records were affected by fire, with the originals brittle and moldy. The claims file contains copies of the original records. It is, therefore, possible that certain records are no longer existent. In this situation, the Board has a heightened duty to assist a claimant in developing his claim See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. The evidence of record includes VA medical records, to include an opinion from a VA treating physician, a May 2008 VA examination report, and a VA medical expert opinion. After review of this evidence, the Board finds that the claims file contains sufficient competent medical evidence to decide the claim. The Board finds that the obtained VA medical expert opinion substantially responds to the questions posed by the Board and is supported by adequate rationale. There is no duty to provide another examination or opinion. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the foregoing, the Board finds that VA has fulfilled its duty to notify and assist the Veteran in the claim under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is 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 a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Applicable to this case, service connection is prohibited for disability on the basis that the disability resulted from disease or injury attributable to the use of tobacco products during a veteran's service. 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300(a). This prohibition does not apply if the disability resulted from a disease or injury that is otherwise shown to have been incurred or aggravated during service. This means that the disability can be service- connected on some basis other than the veteran's use of tobacco products during service, or that the disability became manifest during service. 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. Factual Background The Veteran has provided testimony that conditions of service, to include severe cold weather, contributed to his current lung disability. The Veteran asserted that coughing led to contusions of the chest wall. The Veteran has asserted that he has had a respiratory disability from the time of service to the present. Service treatment records document hospitalization for one episode of pneumonia. Although there is a record that documents a contusion of the anterior chest wall, this injury is documented as occurring due to the Veteran falling and slipping on ice, and not due to coughing or other lung disability. The October 1962 report of medical examination and report of medical history do not record findings of a current lung disability. In this regard, in the report of medical examination, a clinician marked that the clinical evaluation of the lungs was normal, but noted previous hospitalization for pneumonia. In the Veteran's claim, he listed the respiratory disability as "only 35% pulmonary function." Post-service treatment records document that the current disability is COPD. The earliest diagnosis of record is dated in 2003. A February 2005 VA treatment record, however, documents that the Veteran had longstanding severe COPD. An April 2005 VA treatment record indicates that the Veteran had a chest cold for the past two weeks. A May 2005 VA treatment record documents that the Veteran had a history of chronic obstructive lung disease secondary to smoking. The claims file contains a February 2008 letter from a VA clinician. The clinician opined that it was "as likely as not that [the Veteran's] respiratory condition [was] the result of, or was aggravated by, his pneumonia related condition for which he was treated and hospitalized while in the military service." He did not provide any additional rationale. The claims file contains treatment records completed by this clinician. Review of these treatment records reveals that the clinician was aware of the Veteran's history of smoking and current diagnosis of COPD, but this history or current diagnosis was not noted in the February 2008 opinion. Subsequently, VA obtained a May 2008 examination with opinion. The examiner completed testing and a medical history. The examiner diagnosed COPD. The examiner addressed whether the Veteran's current lung disability was attributable to exposure to aviation fuel and fumes from aircraft, cold, coughs, and pneumonia in service. The examiner documented the Veteran's contentions as well as the Veteran's history of smoking tobacco. The examiner wrote that the Veteran did appear to have some fume exposure during service and complained of one pneumonia episode and working under cold conditions. The examiner again noted the history of smoking. The examiner wrote that the Veteran had began smoking when 13 to 14 years of age, stopping smoking in 1985. The examiner opined that the most common cause of COPD is an extensive smoking history. He wrote further, however, that "[e]nvironmental factors have also been noted to play into this, but appear to have small effects as compared to a many year smoking history." The examiner opined, therefore, that it was "less likely that any aviation fuel exposure, fumes exposure, cold, coughs, and an isolated pneumonia episode played to this veteran's COPD, because his smoking history overshadows these considerably." The examiner again found that the most likely cause of the COPD was a very long smoking history. The examiner wrote that it would be impossible to provide an opinion regarding aggravation. Pursuant to the Board's request, the claims file now contains a VA medical expert opinion, completed by a pulmonologist. He noted review of the available medical records. The pulmonologist wrote that cold air was a "non-specific bronchial irritant which does not induce respiratory disease nor cause pneumonia." He noted the diagnosis of pneumonia in service, but reported that the record showed a "full recovery without any lingering adverse effects or disability." He wrote that the Veteran's "subjective self diagnosis of recurrent" pneumonia was not substantiated in the record. The pulmonologist found that the clinical history was consistent with chronic bronchitis with reversible bronchospasm. The pulmonologist wrote that the cause was typically tobacco use. Essentially, he found that the Veteran's previous tobacco use was consistent with the development of this disability. The pulmonologist acknowledged the contention regarding exposure to aviation fuel and fumes, but indicated that the open air environment in which this took place would not be expected to be associated with lung injury. Further, the clinical history was not consistent with diagnosis of occupational asthma. He reiterated the history of smoking and that the affect of tobacco use/consumption could not be discounted. He noted that the persistence of respiratory symptoms after quitting smoking was not unusual, and reported that there was evidence of tobacco induced lung disease. The pulmonologist opined that it was unlikely that the lung disability was linked to service, to include as to exposure to cold air, an isolated episode of pneumonia, and potential inhalational exposure to hydrocarbon fumes. Instead, he linked the current disability to tobacco use. He further wrote that he did "not see [ ] any credible medical evidence in the medical records or medical literature to support the contention that an isolated episode of pneumonia aggravated or contributed to the [Veteran's] respiratory status in subsequent years." The Board finds that this statement adequately responded to the Board's request that the medical expert provide comment on the possible meaning of the VA's clinician's February 2008 opinion that pneumonia aggravated the Veteran's current respiratory disability. Analysis The Board finds that service connection for a respiratory disability is not warranted. The Veteran has asserted multiple theories of causation regarding the contended link between current respiratory disability and service. The Veteran has asserted that exposure to cold and fuel led to the disability. The Veteran has also asserted that repeated coughing led to contusions of the chest and that he had repeated treatment for pneumonia. Regarding the events that occurred in service, the service treatment records document that the Veteran did receive treatment for pneumonia. The examination conducted at the time of discharge noted this history of pneumonia but found no current disability of the lungs and the Veteran did not report any. Further, although the Veteran was treated for a chest contusion, this was noted to be subsequent to a fall injury and not due to respiratory symptoms (coughing) as asserted by the Veteran. That is, the report of medical history and medical examination completed at the time of discharge counter the Veteran's assertion of continuity of symptomatology. The Board finds that these documents completed at the time of discharge and prior to the current claim are of more probative value. Thus, the Board finds that there is no continuity of symptomatology. See 38 C.F.R. § 3.303(b). In further support of this finding, the Veteran's current history provided for the cause of a chest contusion counters the contemporaneous clinical record. Based on these discrepancies between the Veteran's current history and that recorded at the time of the events, the Board finds the Veteran's current statements regarding the events of service to be of reduced credibility. As there was not continuity of symptomatology, the Board now turns to the opinion evidence of record. There is one positive medical opinion of record. In the February 2008 opinion, the VA clinician links the current disability to the pneumonia for which the Veteran received treatment in service. Although review of the treatment records reveals that this clinician had previously noted the history of tobacco use and that the current disability was COPD, in this opinion he provided no rationale and did not explain or acknowledge the possible role of tobacco use in the current disability or name what the current disability was. For these reasons, the Board finds this opinion to be of reduced probative value. In the May 2008 VA examination opinion, the examiner provided, essentially, a negative opinion regarding a link between COPD and the Veteran's service, noting that the etiology of the COPD was tobacco use. The examiner, however, indicated a role for environmental factors, but did not indicate that any of these in-service factors at least as likely as not led to the current disability. Based on ambiguities left by this opinion, the Board obtained the VA medical expert opinion. The Board finds that pulmonologist that completed this opinion fully considered the Veteran's contentions and he indicated a knowledge of the relevant evidence of file. The pulmonologist provided a negative opinion. Based on the rationale provided, the Board finds that the VA medical expert opinion is of substantial probative value. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The preponderance of the medical evidence of file weighs against service connection. The preponderance of the evidence indicates that the current disability is COPD due to tobacco use. Under the facts of this case, service connection is prohibited for disability on the basis that the disability resulted from disease or injury attributable to the use of tobacco products during a veteran's service. 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300(a). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit Court 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. See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). The Board has fully considered the Veteran's lay statements. The questions involved in this case, however, involve the etiology of a disability (whether due to cold weather or fuel exposure) and whether one diagnosed respiratory disability (pneumonia) is etiologically related to another respiratory disability. These questions require opinions from persons with medical expertise, as the answers cannot be ascertained through lay observation. Rather, these opinions require knowledge of how one disease is attributable to another disease and the causes for that disease. The Veteran has not been shown to possess the requisite medical training or credentials needed to render a competent opinion as to these questions. Accordingly, his lay opinion does not constitute competent medical evidence and lacks probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). 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). As outlined above, the evidence weighs against a finding of continuity of symptomatology and the competent evidence weighs against a finding that the disability is attributable to service, to include any incident of service (other than tobacco use). After consideration of the evidence of records, the Board finds that the preponderance of the evidence is against the claim. Therefore, the benefit of the doubt doctrine is not applicable and the claim for service connection for a respiratory disability must be denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for a respiratory disability is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs