Citation Nr: 1301935 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 11-17 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease. ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. Chronic obstructive pulmonary disease (COPD) did not have onset during the Veteran's active service and was not caused by any event, injury, or disease during his active service, other than the contribution of his tobacco use during service. 2. The Veteran's COPD was caused by his tobacco use. 3. VA first received the Veteran's claim of entitlement to service connection for COPD after June 9, 1998. CONCLUSION OF LAW The criteria for service connection for COPD have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.300, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). 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). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2009. That letter informed him of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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). The RO has obtained service treatment records, VA treatment records, records associated with his application for disability benefits administered by the Social Security Administration (SSA), and has assisted the Veteran in obtaining private treatment records. VA provided a relevant medical examination in December 2009, including an addendum medical opinion added in February 2010. The physical examination portion of the December 2009 report is adequate. Determining that additional medical opinion evidence was necessary, in August 2012 the Board referred the Veteran's case for a medical expert opinion by a Veterans Health Administration (VHA) physician. See VHA Directive 2010-044, dated September 29, 2010; 38 U.S.C.A. §§ 5103A, 7109 (West 2002); 38 C.F.R. § 20.901 (2012). That opinion was provided to the Board in October 2012. That same month, a copy of the medical opinion was provided to the Veteran and he was offered the opportunity to present additional evidence or argument in accordance with 38 C.F.R. § 20.903 (2012). See also Thurber v. Brown, 5 Vet. App. 119 (1993). In a statement received in December 2012, the Veteran indicated that he had no further argument or evidence to submit and requested that the Board proceed with the adjudication of his appeal. The October 2012 VHA opinion includes a sufficiently detailed description of the Veteran's claimed disability, the physician provided a relevant history evidencing review of the Veteran's medical history, and the examiner supported his opinion with an analysis. The opinion is therefore adequate. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Veteran has not 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 to the Veteran is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection In his September 2010 notice of disagreement with the RO's denial of his claim, the Veteran contended that his in-service diagnosis of bronchitis is evidence that his COPD had onset during service. He also contended that he became addicted to smoking tobacco during service and this caused his COPD. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For claims filed after June 9, 1998, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to the claimant's use of tobacco products during service. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2012). In October 2012, a VHA physician provided an expert medical opinion. Included in that opinion is a detailed summary of the relevant facts of this case as found in the claims file. These include that the Veteran was treated for bronchitis and upper respiratory infection during service, chest x-rays during service were normal, and at retirement from service in 1993 he reported no dyspnea, chronic cough, or asthma. This opinion notes that the Veteran had a 40 year history of smoking tobacco, chest x-rays from 2005 showed increased lung volume, and December 2009 pulmonary function tests documented mild obstruction. VA and private treatment records document diagnosis of COPD no earlier than 2005. These facts as related in the opinion are accurate and in accordance with the service and post service treatment records. The examiner concluded that it was less likely than not that the in-service bronchitis contributed materially to the development of COPD, chronic bronchitis, or any other pulmonary disability; and that his COPD was most likely caused by chronic cigarette smoking. This opinion is well supported by citation to relevant medical literature showing that the most significant risk factors for COPD are cigarette smoking, genetic factors, and airway responsiveness. The examiner explained that there was no documented family history of COPD and regardless, this would not be relevant to the question of service connection. He explained that the episodes of bronchitis during active duty were not indicative or suggestive of airway responsiveness, but that the Veteran has a significant and ongoing exposure to cigarette smoke. The Board assigns significant probative weight to this opinion because it is supported by a compelling rationale. See Nieves-Rodriguez v. Peake, 295 Vet. App. 304 (2008) (explaining that most of the value of a medical opinion lies in its reasoning). There is no expert evidence of record indicating that he Veteran's COPD had onset during active service or was caused by any event during his active service other than to the extent that his cigarette smoking history includes his active service. It is noted by the Board that there is one in-service notation of "Ch Bronchitis" in July 1978 with a recommendation to reduce smoking. The Board affords that notation minimal probative weight as to whether the Veteran has a chronic respiratory condition that had onset during his active service; it does not change the Board's determination that the preponderance of evidence is unfavorable to the Veteran's claim. The October 2012 opinion reflects review of the service treatment records so the examiner had that notation before him. That expert evidence is the most probative evidence of record as to the etiology of the Veteran's claimed disability. Additionally, the entire history shown in the claims file is consistent with the October 2012 expert opinion. As the examiner noted, at separation from active service the Veteran reported that he had no chronic cough, in July 1993 he filed a claim of entitlement to VA disability compensation for iritis and low back pain and upon general medical examination conducted in January 1994 his respiratory system was found to be normal. Beginning in 1997, VA treatment records document that the Veteran had a tobacco use disorder. Results of a January 2003 clinical examination were that he had normal excursion and noted that he had an upper respiratory infection of 3 weeks duration. By November 2003 he was prescribed albuterol and those notes reference his tobacco use. The earliest reference to lung disease is found in September 2005 VA treatment notes where a physician documented review of pulmonary function tests and concluded he had some restrictive but more obstructive disease. Both the in-service and post service records include recommendations to stop or reduce smoking, and the post service records that refer to lung disease typically include reference to his smoking history. Thus, the clinical evidence is consistent with the October 2012 expert opinion that the Veteran's tobacco use caused his COPD. To the extent that the Veteran asserts that his in-service bronchitis either was the first sign of COPD or caused his COPD, the Board finds that his opinion in this regard is not probative evidence. The Veteran has not shown that he has expertise in medical matters and the Board finds that an opinion as to whether isolated findings of bronchitis leads to COPD diagnosed years later or tends to show COPD diagnosed years later had onset with the bronchitis, are issues upon which non-expert (layperson) medical opinion evidence is not competent. It is error to categorically reject layperson nexus evidence as incompetent but the Board does not err simply by finding that the nexus evidence is not competent and favoring competent medical evidence over it. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Whether a layperson opinion as to a nexus or diagnosis is competent evidence depends on the facts of the particular case. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor for consideration is the complexity of the question to be determined. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example in footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not competent to diagnose a form of cancer). Another factor is whether the question can be answered by personal observation alone. See Layno v. Brown, 6 Vet. App. 465, 496 (1994) (explaining that a layperson is competent to report only that which he or she observed). Here, whether bronchitis during service causes COPD, as opposed to tobacco use, is not a question that can be answered by mere observation. Nor is the question of whether bronchitis present during service was indicative of COPD caused by something other than tobacco use, or for that matter, was indicative of COPD first diagnosed years later. First, the diagnosis of COPD versus bronchitis is neither a simple matter nor is it one that can be determined by observation of a layperson. Second, the tobacco use occurred both during and after service and for years before COPD was diagnosed and observation could not separate out the tobacco use with regard to either the COPD or, for that matter, the bronchitis. As is clear from the medical literature referred to by the VHA examiner, there are numerous factors of varying significance related to the cause of COPD, so determining what causes COPD is not a simple issue but rather is a complex issue and the subject of research by trained professionals. For these reasons the Board finds that the Veteran's nexus opinion in this regard is not competent evidence. The most probative evidence of record as to the etiology of the Veteran's COPD is therefore the October 2012 VHA opinion. VA first received a claim of entitlement to service connection for the Veteran's COPD in August 2009. For claims filed after June 9, 1998, 38 U.S.C.A. § 1103 as implemented by 38 C.F.R. § 3.300, bars service connection for respiratory disability resulting from tobacco use during service. The Veteran filed his claim after June 9, 1998 and therefore any respiratory disease or condition that resulted from his tobacco use during service is specifically excluded from service connection. The language of the statute and regulation encompasses addiction to tobacco use during service resulting in later disease from continued use. For the reasons stated above, the Board concludes that the preponderance of evidence of record shows that the Veteran's COPD is due to tobacco use rather than any other disease, event, or injury during active service. Service connection for COPD is therefore prohibited and his appeal must be denied. There is no reasonable doubt to be resolved in this case. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for COPD is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs