Citation Nr: 1038017 Decision Date: 10/07/10 Archive Date: 10/15/10 DOCKET NO. 06-31 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased evaluation for asthma, currently rated as 30 percent disabling. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The appellant served on active duty from February 1955 to November 1956. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of July 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburg, Pennsylvania. In June 2009, the Board remanded the claim for additional development. The issue of entitlement to service connection for COPD is intertwined with the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of the evaluation for asthma 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. FINDING OF FACT COPD is due to an in-service event. CONCLUSION OF LAW COPD was incurred in service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA 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 the instant case, since the appellant's claim is being granted, any deficiencies with regard to VCAA are harmless and nonprejudicial and VCAA analysis is not required. Legal Criteria and Analysis Veterans are entitled to compensation from the Department of Veterans Affairs if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1131. To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so- called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). 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). Where a chronic disease is shown in service, or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean, however, that any manifestation in service will necessarily permit service connection. Showing chronic disease in service requires 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." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A rating decision of July 2004 granted service connection for asthma, claimed as chronic lung disorder caused by frozen lungs with a disability rating of 30 percent. In November 2004, the appellant filed a claim for a higher rating. At the time, he alleged his asthma had worsened since 2003. That claim was denied by the RO in a rating decision of July 2005, the appellant disagreed with the decision leading to the ensuing appeal. In June 2009, the Board remanded the claim for further development. The Board noted that in April 2005, the appellant was diagnosed with COPD. A Remand was ordered for the purpose of obtaining additional evidence. The appellant was afforded a VA examination in May 2010. At the time, the examiner diagnosed COPD and opined that "it is more likely than not the events while in the military working in Alaska that [exposed] his lungs to cold air, due to constant exposure at low temperatures contributed to his scarring of his lung tissue. Causing him to have chronic obstructive pulmonary disease and also reactive airway disease." Considering the evidence as delineated above, the Board finds that the evidence supports a finding of service connection for COPD. In that regard, the Board notes that service personnel records show that the appellant had service in Alaska. This is a fact that has been accepted by the RO. In addition, the record clearly shows that appellant has been diagnosed with COPD. Moreover, as noted above, the VA examiner of May 2010 opined that "it is more likely than not the events while in the military working in Alaska that [exposed] his lungs to cold air, due to constant exposure at low temperatures contributed to his scarring of his lung tissue. Causing him to have chronic obstructive pulmonary disease and also reactive airway disease." The May 2010 VA examination is competent. It was provided after a review of the claim file, an interview of the appellant during which his medical history was elicited, an examination of the appellant, consideration of his reported smoking history and appropriate testing. Moreover, the opinion stands uncontradicted by any other competent medical opinion of record. The Board in cognizant of the findings in the April 2004 VA examination where the examiner noted that based on PFT testing it is likely the appellant has some obstructive airway disease related to smoking, although the possibility exists that he may have an asthma component as well. He further stated that the appellant's predominant disability was his asthma. The April 2004 examiner's statements amount to no more than a suggestion the appellant may have an obstructive airway disease which is related to smoking. However, the 2004 opinion is less persuasive than the more recent opinion. The more probative evidence establishes that the appellant currently has COPD, and that the COPD was due to an in-service event. Accordingly, service connection for COPD (and asthma) is granted. ORDER Service connection for COPD (and asthma) is granted. REMAND The appellant is seeking an increased evaluation of his service connected asthma. As noted in the above decision, service connection for COPD has now been granted. Therefore, the issue now for consideration is the evaluation of the service connected respiratory disability, including asthma and COPD. The Board notes that the VA examiner of May 2010 references findings regarding PFT testing. However, a review of the file shows that PFT testing results have not been associated with the claim file. These records must be obtained and associated with the file. Moreover, as service connection for COPD has now been granted, the RO should readjudicate the evaluation of the service connected respiratory disability with consideration of all the rating criteria applicable to asthma and COPD. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The RO should request and associated with the claim file, the records of the PFT testing conducted in association with the May 2010 VA examination. If the records are unavailable, is should so be stated on the record and the reason for the unavailability should be provided. 2. After the above development has been completed, the RO should readjudicate the issue of the evaluation of the service connected respiratory disability to include asthma and COPD. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant has 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). ______________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs