Citation Nr: 1008929 Decision Date: 03/09/10 Archive Date: 03/17/10 DOCKET NO. 07-18 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a respiratory disorder, diagnosed as asthma and chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Thomas Knope, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1974. This matter is on appeal from the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in March 2009. A transcript of the hearing is of record. This case was remanded by the Board in May 2009 for further development and is now ready for disposition. FINDING OF FACT A chronic respiratory disorder was not manifest during service and was not identified until many years thereafter. CONCLUSION OF LAW A chronic respiratory disorder, diagnosed as asthma and COPD was not incurred in or aggravated by service. 38 U.S.C.A. § 1131, 5103(a), 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in May 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in June 2006, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Additionally, the Veteran submitted his own private outpatient treatment records. Next, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge in March 2009. Moreover, VA medical opinions pertinent to the issue on appeal were obtained in March 2007 and November 2009. The Board finds that these examinations were adequate for evaluation purposes. Specifically, the examiners reviewed the claims file, interviewed the Veteran and a physical examination was conducted at the March 2007 examination. Moreover, there is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002). Entitlement to Service Connection for COPD Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2009). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2009). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2009). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In conjunction with this appeal, the Veteran testified before the Board in March 2009. There, he denied experiencing any breathing problems prior to his entry into the military, and instead attributed his current pulmonary disorder to breathing problems he experienced while stationed at Parris Island, South Carolina. While he acknowledged that his breathing was normal at the time of his release from active duty, he asserted that the disorder reappeared within six months to a year after discharge. The Veteran's service treatment records indicate that he reported to a treatment clinic in May 1973 for a chest cold accompanied by complaints of coughing and difficulty breathing. He was diagnosed with sinus congestion, and no other treatment was noted. In October 1973, he again complained of breathing problems. However, his lungs were clear upon examination. Although slight congestion was observed, no follow-up treatment was noted. Moreover, no pulmonary deficiencies were noted or recorded during his separation physical examination in July 1974. Next, the post-service clinical evidence does not reflect a pulmonary disorder for many years after service discharge. In this case, the first indication of a pulmonary disorder in the record is not until August 1985, where the Veteran underwent a pulmonary function test, which indicated a diagnosis of moderate to severe chronic obstructive pulmonary disease (COPD). Of additional note, at his VA examination in November 2009, the VA examiner estimated that his COPD began in approximately 1976 or 1977 (5-7 years prior to 1984). Even so, this estimate is still two years after the Veteran left active duty. Therefore, the competent evidence does not reflect continuity of symptomatology. In addition to the absence of documented post-service respiratory symptomatology for many years, the evidence includes the Veteran's statements and sworn testimony asserting continuity of symptoms. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report respiratory symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. Here, he stated at his hearing that his respiratory symptoms began within a year after service. While the Board remanded this issue in an attempt to acquire VA and private treatment records from prior to 1985, no clinical evidence from before then was obtained. In determining whether the Veteran's statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). In this case, the Board finds that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. Specifically, the multi-year gap between discharge from active duty service (1974) and the VA examiner's estimate of 1976 as the earliest date of onset. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Therefore, the Board concludes that the Veteran's statements as to continuity of symptomatology are of lesser probative value. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). Accordingly, continuity has not here been established, either through the competent evidence or through his statements. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's respiratory disorder to active duty, despite his contentions to the contrary. To that end, the Board places significant probative value on opinions provided by VA examiners in March 2007 and November 2009 that specifically addressed the issue on appeal. At the March 2007 VA examination, the examiner confirmed a diagnosis of COPD. However, the examiner also opined that it was less likely than not that the Veteran's COPD was related to service. In arriving at this opinion, the examiner commented that the Veteran's in-service pulmonary history was limited to one chest cold in 1973 and one sinus cold a year later. Moreover, his recurrent bronchial problems did not appear until many years later. At the same time, the examiner noted that the Veteran drank and smoked heavily and instead attributed his COPD to these factors. Next, in November 2009, the VA examiner noted that no lung disorders were observed upon the Veteran's separation from active duty. The examiner also stated that, based on the Veteran's diagnosis of moderate COPD in 1984, he would have had the disorder for approximately five to seven years before that time. Even so, the examiner pointed out, this was still many years after his active duty service. In addition to her clinical observations, the VA examiner also stated that she knew the Veteran's private treating physician and, since the private examiner did not practice medicine in the State of Florida before 1981, there would be no treatment records from this private physician prior to that time. As was stated previously, the Board finds that these examinations were adequate for evaluation purposes. Specifically, both examiners reviewed the claims file, and the examiner in March 2007 interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. Therefore, the Board finds the VA examiner's opinion to be of great probative value. The Board has also considered an administrative note placed in the Veteran's treatment records in August 2006 opining that it is at least as likely that his current disability began on active duty. As with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). That is to say, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question. To that end, the Board places more weight on the March 2007 VA Examination and the November 2009 opinion. In those cases, the examiners had the claims file available for review and articulated a basis for their opinions. Specifically, the examiner in March 2007 believed that the Veteran's history of smoking was the most likely cause of his COPD. Additionally, the examiner in November 2009 was able to estimate the onset of COPD symptoms to a period after the Veteran's active duty. The August 2006 administrative note, on the other hand, does not make clear if the physician's assistant who provided the opinion had the Veteran's claims file for review. As such, the Board cannot infer his understanding of the Veteran's medical history. Moreover, there is no supporting basis given for the physician assistant's opinion. Therefore, of the two statements, the Board places more evidentiary weight on the March 2007 VA examination. The Board has also considered the Veteran's statements and sworn testimony. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. See Layno, 6 Vet. App. at 470. However, pulmonary disorders such as COPD are not the type of disorders that a lay person can provide competent evidence on questions of etiology or diagnosis. On the other hand, such competent evidence has been provided by the medical personnel who have examined and/or treated the Veteran during the current appeal and by service records obtained and associated with the claims file. The Board attaches greater probative weight to the clinical findings than to his statements. See Cartright, 2 Vet. App. at 25. In sum, after a careful review of the evidence of record, the Board finds that the benefit of the doubt rule is not applicable and the appeal is denied. ORDER Service connection for a pulmonary disorder, diagnosed as asthma and COPD is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs