Citation Nr: 1216017	
Decision Date: 05/03/12    Archive Date: 05/10/12

DOCKET NO.  06-28 267A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for chronic obstructive pulmonary disease (COPD) and emphysema, status post lung transplant.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

L. Durham, Counsel
INTRODUCTION

The Veteran served on active duty from August 1967 to August 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 RO decision, which denied a claim for service connection for a lung transplant due to COPD and emphysema (claimed as pulmonary condition due to lung transplant).  This issue was remanded by the Board in May 2009 and June 2010 for further development.

In December 2008, a Travel Board hearing was held before the undersigned Veterans Law Judge at the St. Petersburg, Florida, RO.  A transcript of that proceeding has been associated with the claims folder.

The Board notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the Veterans Law Judge (VLJ)/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the VLJ fully explained the issue on appeal during the hearing.  Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim, and he requested attempts be made to locate evidence that he believed would show that he had a degree of COPD immediately following his discharge from service.  Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).


FINDING OF FACT

The Veteran is not shown by competent medical evidence to have bronchiectasis that manifested within 1 year from discharge from service or COPD and emphysema, status post lung transplant that is etiologically related to a disease, injury, or event in service, to include exposure to herbicides or agent orange.


CONCLUSION OF LAW

COPD and emphysema, status post lung transplant were not incurred in or aggravated by active service, and may not be presumed to have been incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2011). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless. 

A VCAA letter dated in April 2005 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187.  The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim.  This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  Additionally, a March 2006 letter described how appropriate disability ratings and effective dates were assigned.  

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's available service treatment records and relevant VA and private medical records are in the file.  The Board notes that this issue was remanded in May 2009 in order to attempt to locate chest x-ray films from December 1987.  A September 2009 response from the James A. Haley Veterans' Hospital reflects that the chest x-rays films from December 1987 are no longer available.  In June 2010, this issue was remanded once again in order to request the December 1987 chest x-ray films from the Bay Pines VA Healthcare Systems facility.  In an October 2010 response from Bay Pines VA Healthcare System, it was indicated that the system would not be able to pull up any films from 1987.  It was further indicated that most systems for x-rays only go back 6 years and then they are deleted because of the memory.  A Formal Finding of Unavailability was issued in December 2010 with regard to this record.  Therefore, all records identified by the Veteran as relating to this claim have been obtained, to the extent possible.  As such, the Board finds that the record contains sufficient evidence to make a decision on the claim.  VA has fulfilled its duty to assist.

With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2011).  A VA medical opinion was provided in April 2008, which addressed his claim for service connection for COPD and emphysema, status post lung transplant.  The examiner reviewed the claims file and noted the Veteran's assertions.  The Board finds this examination report and opinion to be thorough and complete.  Therefore, the Board finds this opinion is sufficient upon which to base a decision with regard to this claim.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Analysis

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110 (West 2002).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2011).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d) (2011).
 
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).   

Certain diseases, to include bronchiectasis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011).

If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e) (2011).  In this regard, it is noted that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service."  38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2011).

The diseases alluded to above include AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemia, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e) (2011).

Notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation.  See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994).  See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000).

As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection.  However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims.

In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims.  See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988).  The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1 MR, part VI, Subpart ii, Chapter 2, Section C (December 13, 2005).

In this regard, the M21-1 MR provides the following non- exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b).

The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment.  See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f).

The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease.  Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods.  See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (e).

The Veteran is seeking entitlement to service connection for COPD and emphysema, status post lung transplant.  Specifically, the Veteran has asserted that he had numerous episodes of respiratory infections and bronchitis while on active duty.  See VA Form 9 Appeal, August 2006.  The Veteran contends that his current disease was present but not detected during active duty due to the fact that COPD/emphysema is a slow moving disease.  Id.  He also contended at the December 2008 hearing that he had a bout of acute pleurisy in 1981, 1982, or 1983.  Further, he contended that he was exposed to diesel exhaust, asbestos, cleaning chemicals, fiberglass fibers, methyl ethyl ketone, and painting without a respirator.

A review of the Veteran's service treatment records does not reveal complaints, treatment, or diagnoses of COPD or emphysema.  The Board notes that the Veteran complained of constant chest pain in a February 1974 service treatment record.  The Veteran complained of a chest cough in a December 1975 service treatment record. A chest x-ray report was negative.  In July 1978, a chest x-ray report revealed no significant abnormalities.  In a March 1979 service treatment record, the Veteran was noted as having bronchial "amonia" and asthma.  In February 1982 and May 1982, the Veteran was noted as having a normal chest x-ray report.  In a separate May 1982 service treatment record, the Veteran was noted as having acute pleurisy, bronchitis, and a possible fracture of the 11th right rib.  A subsequent May 1982 x-ray report confirmed a fracture of the 11th rib.  In a November 1984 service treatment record, the Veteran was noted as having pleurisy or pleuritic chest pain.  In a June 1987 Report of Medical History, the Veteran reported having asthma in his childhood with no problem since childhood.  It was also noted that he fractured his right rib in 1982 while coughing. 

With regard to a current disability, the Board notes that the Veteran underwent a VA examination in April 2008.  The examiner indicated that she reviewed the claims file and noted the Veteran's assertion that treatment for numerous episodes of upper respiratory infections are clinical manifestations of COPD.  The examiner noted that there is no diagnosis or treatment for COPD shown in the Veteran's service treatment records.  The Veteran was treated a few times over the years for upper respiratory infections in service.  Chest x-rays and periodic examinations and separation examination report normal respiratory system.  The examiner reviewed the Veteran's VA and private medical records.  She noted that there is no evidence of COPD or chronic pulmonary condition found on examination in December 1987.  X-rays performed at a private hospital in connection with a cervical spine fusion in June 1989 (about 2 years after discharge from service) report hyperinflation of the lung fields consistent with a degree of COPD.  The Veteran has a long history of smoking that began prior to enlistment.  Based on review of the medical literature and medical records, as well as clinical experience, the examiner determined that the Veteran's clinical manifestations of COPD were not caused by or the result of active duty.  The examiner noted that review of the service treatment records confirms numerous treatments for "viral URI's", cough, sore throat, flu, pleuritic chest pain, and acute pleurisy.  Given extensive review of the service treatment records, there is no objective evidence that a chronic pulmonary condition onset during active duty, as these pulmonary conditions noted during active duty were acute and transient without objective evidence of a chronic pulmonary process.  In rendering this opinion, the examiner noted a February 1987 private medical record which reflected that the Veteran had smoked 2 packs a day for 20 years.  In a November 1999 private medical record, it was noted that the Veteran had smoked since the age of 12.  In a September 2003 private medical record, it was noted that the Veteran smoked 1 to 3 packs of cigarettes per day for 30 years.  The examiner also noted that medical literature reveals that cigarette smoking is by far the most common reason that people develop COPD and emphysema.  The examiner concluded by stating that there is no objective evidence to support the Veteran's claim that the clinical manifestations of COPD began in service.  

Additionally, the Board has reviewed the other medical evidence of record.  Notably, in a November 2005 letter from a Major at the MacDill Air Force Base, it was noted that the Veteran was a patient at the MacDill Air Force Base Medical Center.  The Veteran's medical history is pertinent for severe COPD and is status post lung transplantation in the past.  He indicated that he believed that the Veteran's COPD was likely present during active duty but went undetected and should be reevaluated considered service connected.

In a November 2005 private medical record from Shands Transplant Center at the University of Florida, it was noted that the Veteran received a single left lung transplant related to COPD in September 2001 at Johns Hopkins Medical Center.  In 1989, the Veteran had a chest x-ray that showed his lungs were hyperinflated.  The physician indicated that this finding is consistent with a diagnosis of COPD.  In a September 2003 private medical records from Shands Lung Transplant Clinic, it was noted that the Veteran smoked 1 to 3 packs of cigarettes daily for 30 years.  He quit one year prior to his lung transplantation and reported that he started smoking again one year ago.  He smokes on average one pack of cigarettes every month and has completely stopped.  It was noted that this is in question according to his wife, who states that he may be smoking.  The Veteran denied any exposure to chemical or asbestos.  In a September 2003 medical record from Macdill Air Force Base, it was noted that the Veteran smoked 2 packs of cigarettes daily for 40 years.  In a July 2003 letter from a physician at Johns Hopkins Medical Institutions Lung Transplanation Program, it was noted that the Veteran has been followed for end stage lung disease secondary to COPD since November 16, 1999.  In a March 2002 medical record from Johns Hopkins, it was noted that the Veteran had emphysema presumably secondary to an 80 pack-year smoking history.  In a June 1994 VA general medical examination report, it was noted that the Veteran had a history of pleurisy, with no residual recurrence.  In a January VA 1991 radiology report, it as noted that the Veteran's lungs were clear but appeared hyperinflated.  In a January 1991 VA examination report, the Veteran was diagnosed with a history of non-traumatic pleural effusion, resolved.  In a July 1989 medical record from St. Vincent's Medical Center, it was noted that a chest x-ray showed the lung fields were hyperinflated, consistent with a degree of COPD.  No acute process was detected.  In December 1987, the Veteran underwent a VA examination, at which he was noted as having a history of pleurisy with alleged fractures ribs.  X-rays from December 1987 revealed that the lungs were clear and pulmonary vasculature was normal.  The Veteran was noted as having a normal chest.   

As an initial matter, the Board notes that there is no competent evidence of record reflecting that the Veteran demonstrated bronchiectasis to a compensable degree within one year of discharge from active duty.  As such, service connection for bronchiectasis cannot be granted on a presumptive basis.  

With respect to granting service connection for COPD and emphysema, status post lung transplant on a presumptive basis due to exposure to agent orange or herbicides, the evidence of record reflects that the Veteran served in the Republic of Vietnam from March 1969 to November 1970.  As such, in-service exposure to herbicides or agent orange is presumed. 

However, the Board notes that neither COPD or emphysema is listed as being presumptively associated with exposure to agent orange or herbicides under 38 C.F.R. § 3.309(e).  There is a presumption of service connection for respiratory cancers, but respiratory cancers are specifically defined in the governing laws and regulations as cancer of the lung, bronchus, larynx, or trachea.  38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2011).  Therefore, as the Veteran has not been diagnosed with a respiratory disease listed under 38 C.F.R. § 3.309(e) as being presumptively associated with agent orange or herbicide exposure, service connection cannot be granted on a presumptive basis. 

With regard to granting service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. 3.303(d) (2011).
 
In this regard, the Board acknowledges that it was noted in the November 2005 letter from a Major at the MacDill Air Force Base that he believed that the Veteran's COPD was likely present during active duty but went undetected and should be reevaluated and considered service connected.  However, this opinion contained no rationale or explanation as to the conclusion offered, nor is it clear that the Veteran's extensive history of smoking was considered in rendering this opinion.  With regard to the April 2008 VA opinion, however, the examiner clearly reviewed the claims file and considered the Veteran's pertinent medical history.  Moreover, this examiner was clearly aware of the Veteran's history of smoking.  The examiner clearly felt that smoking was the most likely cause of the disability, and the examiner also considered the history of upper respiratory infections and other acute illnesses in service, but ultimately found that there was no objective evidence to support the Veteran's contention that COPD began in service.  Therefore, as the April 2008 VA opinion is based on a complete review of the claims file, this examiner clearly considered the Veteran's history of smoking and upper respiratory infections in service, and this examiner also reviewed relevant medical literature regarding the relationship between cigarette smoking and COPD and emphysema, the Board finds this opinion to be more probative on the matter.  

Therefore, as the most probative medical opinion of record on the matter specifically indicates that the Veteran's clinical manifestations of COPD were not caused by or the result of active duty, the Veteran's claim fails.  See Shedden, supra. 

The Board acknowledges the Veteran's contentions that he has a current respiratory condition as the result of his active duty service.  However, as discussed above, the most probative medical evidence of record does not support these contentions.  The Veteran can attest to factual matters of which he had first-hand knowledge.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  However, the Veteran 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).  While the Veteran 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, 469-470 (1994).  Therefore, the Board has considered his lay assertions but ultimately places more weight on the aforementioned April 2008 VA opinion for the reasons discussed above.

Additionally, the Board acknowledges that the Veteran has submitted medical literature regarding COPD.  While the Board has considered this evidence, the Board finds that such generic texts, which do not address the facts of this particular Veteran's case, and with a sufficient degree of medical certainty, do not amount to competent medical evidence of causality.  Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996).  As noted, the April 2008 VA examiner reviewed the claims file and took into account the specific circumstances of the Veteran's case, to include his specific history with respect to smoking in relation to his specific diagnosis of COPD.  As such, the Board finds his conclusion to be of greater evidentiary weight than the generic literature that was submitted.

Finally, the Board would also like to note that, to the extent that any of the Veteran's disabilities may be related to his extensive history of tobacco use while in service, service connection for disability on the basis that it resulted from disease or injury attributable to the use of tobacco products during active service is prohibited by law.  38 U.S.C.A § 1103(a) (West 2002); 38 C.F.R. § 3.300(b) (2011).

In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for COPD and emphysema, status post lung transplant, and the benefit-of-the-doubt rule is not for application.  



ORDER

Entitlement to service connection for COPD and emphysema, status post lung transplant is denied.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs