Citation Nr: 1305347 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 04-20 297A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disease. 2. Entitlement to service connection for hypertension, to include as due to a lung disorder. 3. Entitlement to service connection for sleep apnea, to include as due to a lung disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from September 1951 to September 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. A lung disorder, to include chronic obstructive pulmonary disease (COPD), is not related to the Veteran's military service. 2. Hypertension and sleep apnea disorders are not related to the Veteran's military service or to a service-connected disability. CONCLUSIONS OF LAW 1. A lung disorder, to include COPD, was not incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). 2. Hypertension was not incurred in active military service and may not be presumed to have been so incurred, nor is it proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 3. Sleep apnea was not incurred in active military service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claims herein, 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). 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 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. The RO's notice letters dated in December 2002, December 2003, April 2005and March 2006 advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The March 2006 letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. Accordingly, with these letters, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Although the December 2003, April 2005, and March 2006 letters were provided to the Veteran following the initial adjudication of his claims in February 2003, the claims were later readjudicated, with the most recent occurring in the December 2012 supplemental statement of the case. With respect to the duty to assist, the Veteran's service treatment records were not available. The National Personnel Records Center informed the RO in June 2011 that the Veteran's service treatment records were not obtainable and were presumed destroyed in a 1973 fire. The RO notified the Veteran that his service treatment records were not obtainable in a July 2012 letter and asked him to submit any additional evidence in his possession. In December 2012, the Veteran indicated that he did not have any additional evidence to submit in support of his claims and requested that the case be forward to the Board. The fact that the Veteran's complete service treatment records are not available is not fatal to his claims. Smith v. Derwinski, 2 Vet. App. 147 (1992); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) (finding that as the Veteran's service treatment records are not available, the VA has a heightened duty to assist the Veteran in the development of the claim). The RO obtained the Veteran's VA treatment records and his identified private records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims were remanded in March 2008 so that the RO could attempt to obtain the Veteran's outstanding VA medical records; these records have been associated with the claims file. Additionally, the Veteran has submitted written statements as to his contentions. Neither the Veteran nor his representative has identified any other outstanding evidence and none is found by the Board. Additionally, VA provided the Veteran with VA examinations in June 2009, February 2010, and July 2012 with respect to the claimed COPD and sleep apnea disorders. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Collectively, the medical examinations and opinions are adequate, as they are based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examinations of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was not provided a VA examination with respect to the hypertension claim, and VA did not obtain medical opinions regarding whether the hypertension and sleep apnea disorders are related to a service-connected disability. Under 38 U.S.C.A. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, an examination and medical opinion are not needed as the Veteran does not claim that his hypertension and sleep apnea disorders began in or are related to his military service. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the Veteran's claim because there was no evidence, other than his own lay assertion, that reflected that he suffered an event, injury, or disease in service that may be associated with his symptoms). Moreover, there is no question that hypertension and sleep apnea have been diagnosed, but for reasons that will be more fully discussed on the merits below, there is no indication in the record of a causal connection between his diagnoses and a service-connected disability. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (noting that the Board has no obligation to obtain a medical opinion when there is no competent evidence that the appellant's disability or symptoms are associated with his service). Accordingly, it is not necessary to obtain medical examinations or medical opinions in order to decide these claims. 38 C.F.R. § 3.159(c)(4)(i); Duenas v. Principi, 18 Vet. App. 512, 517 (2004). The Veteran provided testimony during a videoconference hearing before the Board in December 2009. Following the hearing, the claim was remanded in January 2010, April 2011, and July 2012 for additional development. The Board finds that there has been substantial compliance with its remands as an attempt to obtain the Veteran's service treatment records, the Veteran was notified of the unavailability of these records, the Veteran VA was afforded examinations, and medical opinions with respect to his COPD claim were obtained. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, certain chronic diseases, including cardiovascular disease, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Moreover, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Lung Disorder, to Include COPD The Veteran claims that he currently has COPD due to his military service. He asserts that he was treated for respiratory symptomatology beginning in 1951, on several occasions while on active duty. He reports that he had a respiratory infection during basic training, but he did not seek treatment at that time. The Veteran also states that he was stationed at Warren Air Force base in Cheyenne, Wyoming in 1951 and 1952 during the time that the government performed chemical testing near that area. He claims to have been exposed to unknown chemicals that were present in the air due to this testing, and he states that he was treated for respiratory symptoms soon after what he now believes was a chemical exposure. He asserts that many other soldiers were treated around the same time for similar disorders. The Veteran also reports that he received in-service treatment and was given penicillin for his throat and lung symptoms on several occasions since that time, to include in-patient treatment for periods of approximately ten days to two weeks. During his in-patient treatment, he states that a nurse or doctor told him that he could have problems with his lungs or heart in the future due to the condition he had in-service. The Veteran attributes his current COPD to his in-service respiratory symptoms and the alleged exposure to unknown chemicals. Private medical records dated after the Veteran's military service reveal diagnoses of COPD. The private treatment records show a diagnosis of COPD as early as 1995, but do not show when this disorder was first diagnosed. Subsequent medical records show treatment for symptomatology related to COPD, but do not include a medical opinion regarding its etiology. The Veteran was afforded a VA respiratory examination in June 2009. The Veteran reported a history of numerous bouts of pneumonia, with the most recent occurring approximately one year prior. He reportedly smoked from approximately 1950 to 1960, quit for seven years, and the returned to smoking until he quit for good in 1980. The Veteran reported a history of a diagnosis of pulmonary embolism in May 2009 and treatment for the disorder since that time. The results of the clinical examination revealed a mild obstructive pattern. The examiner opined that it was "less likely than not that he developed a significant lung problem while in the service." The examiner did not provide a basis to support the opinion provided. As directed by the January 2010 Board remand, the Veteran was provided another VA respiratory examination in February 2010 so that an adequate opinion with supporting medical rationale could be obtained. The Veteran reported that his COPD was first diagnosed in the early 1980s following severe episodes of bronchitis and/or pneumonia. He had a history of smoking one half pack of cigarettes per day for approximately twenty-two years, until he quit in 1980. The Veteran also described his claimed in-service exposure to unknown chemicals during his military service. He stated that the chemicals caused coughing, sputum, fatigue, and hemoptysis, and he reported that he was hospitalized for these symptoms while on active duty. The clinical examination revealed a diagnosis of COPD. The examiner acknowledged the Veteran's report that this disorder was diagnosed in the 1970s or early 1980s, many years after his separation from service, and his report of in-service treatment for respiratory problems following exposure to toxic chemicals. The examiner was unable to locate any documentation of the Veteran's hospitalization or chemical exposure in the claims file. However, the examiner highlighted that the Veteran smoked for over twenty years. The examiner concluded that "unless there was some type of exposure in the service that can be verified, that caused permanent lung toxicity, it appears, in my medical judgment, less likely than not that his present pulmonary problems are related to his time in service." In the July 2012 remand, the Board directed that the Veteran be afforded a new VA examination, as the February 2010 opinion did not give adequate consideration to his competent reports of in-service exposure to chemicals. The Veteran was afforded a new VA respiratory examination in July 2012. The associated examination report documents the Veteran's report of in-service exposure to chemicals and his description of his in-service respiratory symptomatology and treatment. The Veteran described an incident in February or March of 1952 when he was standing outside in formation and noticed a strange smell. He did not see or feel any chemical being sprayed. He stated that he experienced coughing and a fever the next day, was hospitalized, and was treated with penicillin. The Veteran described experiencing a sore throat, fatigue, and chest congestion at later times during his service, which also involved hospital treatment and administration of penicillin. He reported having pneumonia approximately one to two years following his discharge from service and on several occasions thereafter. He was unable to recall when he was first diagnosed with COPD but stated that he was diagnosed with sleep apnea at the same time. He estimated that these disorders were first diagnosed in about 1991 or 1992. The Veteran also stated that in the 1990s he was told that he had a "film" over his lungs. He was then advised to investigate whether he had an exposure due to the spraying of chemicals by the Army's Biological and Chemical facility in Dugway, Utah. The Veteran reported a history of smoking cigarettes from the age of 16 or 17 years until his mid twenties and from the ages of 32 to 50 years, exposure to second hand smoke from his mid 20s to age 32, and weight gain since his discharge from service. The examination revealed diagnoses of COPD, chronic bronchitis, and resolved pulmonary embolism, without residuals. The examiner commented that the Veteran's pulmonary embolus had resolved without residuals, was not an active lung disorder, and was not caused by the COPD. The examiner indicated that the claims file was reviewed, identified relevant treatment records included in the claims file, and acknowledged the Veteran's lay statements regarding in-service chemical exposure, lung and throat symptoms during service, and his in-service hospitalizations. The examiner then opined that the Veteran's COPD was a chronic bronchitis type and "was less likely than not" incurred in or caused by the claimed in-service injury, event, or illness. The examiner highlighted the Veteran's report that he was unaware of any chemical exposure while in the military until he was informed thirty years later that he was stationed near Dugway, Utah where biologic and chemical exposures were possible. Once the Veteran researched this incident, the Veteran concluded that it was likely that the Army exposed him and fellow soldiers to chemicals, which caused his in-service illness in 1952 and his current COPD. Given that the Veteran was stationed 510 miles away from Dugway, Utah, the examiner determined that chemical exposure from that area was "unlikely." The examiner stated that although chronic occupational, recreational, or other chronic exposure to some dusts and chemical fumes had been associated with COPD, there was no cause and effect relationship established between fume exposure and COPD. Additionally, the examiner stated that there was no support in the medical literature for a single or short-term exposure to dust or chemicals causing COPD. The examiner concluded that "even in the unlikely event the Veteran had a chemical exposure during his relatively short time [in Wyoming], there is no support for that exposure to result in COPD." The examiner highlighted that the Veteran's report of other in-service episodes of illness occurred in areas without suspected chemical exposure. While the examiner acknowledged the Veteran's report that he was told in the 1990s that his lung disorder included COPD and a "film" on his lungs that could have possibly been caused by chemical exposure, the examiner highlighted that there was no documentation of a lung disorder other than COPD and pneumonia with reactive airways in the 1990s during the time that the Veteran stated that he was given this information. The examiner stated that the Veteran does not have a chronic lung disorder that could be described as a "film" on the lungs. The examiner stated that smoking was the most common cause of COPD and highlighted that the Veteran smoked cigarettes for a minimum of thirty years. The examiner relayed that it was not unusual for COPD to occur years after discontinuation of smoking. Based on the known and well documented risk of developing COPD from smoking, the examiner opined that it was "likely the Veteran's COPD/Chronic Bronchitis is caused by his long smoking history." Next, the examiner addressed the Veteran's reports of lung and throat symptoms and hospitalizations during service. The examiner stated that the Veteran's description of recurrent symptoms of sore throat, cough, weakness, and fatigue during service were most compatible with infection disorders. This was supported by the Veteran's reported treatment with penicillin. Although the examiner identified possible infectious etiologies, including pneumonia, the examiner concluded that it was not possible to identify the Veteran's primary diagnosis at those times without medical records. The examiner noted that the Veteran did not describe episodes of asthma, wheezing, or symptoms that were suspicious of COPD. The examiner also stated that medical literature did not support an association between recurrent infections contributing to the development of COPD; the examiner stated there is no pathophysiologic mechanism by which infections could cause COPD. The examiner noted that the Veteran did not require treatment for lung or throat disorders between the in-service episodes of illness. However, the Veteran did report being under much stress and smoking heavily at that time, which the examiner determined would contribute to the lower immune response to these infections. The examiner ultimately concluded that there was no evidence that the Veteran's episodes of illness and hospitalizations contributed to his development of COPD based on known epidemiologic patterns and pathophysiolgic processes. The examiner also acknowledged the Veteran's reports of pneumonia following his discharge from service, but again concluded that there was no support for pneumonia causing COPD. In conclusion, the examiner reiterated that the Veteran's exposure to chemical was unlikely as even if the Veteran had short-term chemical exposure in service, the examiner concluded that there was no medical evidence to support an association between that exposure and the current diagnosis of COPD/chronic bronchitis. The examiner determined that the Veteran's recurrent episodes of acute illness in service were most compatible with recurrent infections. The examiner again opined that the Veteran's COPD/chronic bronchitis was "likely a result of [his] significant smoking history." Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for a lung disorder. The medical evidence of record shows a current diagnosis of COPD of a chronic bronchitis type during the pendency of the appeal. However, the preponderance of the evidence does not show that this diagnosis is related to the Veteran's military service. The Veteran's service treatment records are unavailable. Thus, there is no documentation of his alleged chemical exposure and his in-service respiratory symptoms. However, the Veteran's statements is competent evidence to report his in-service symptomatology, as this information comes to him through his own senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, the Board finds that the Veteran's account of having respiratory symptomatology in service is credible. The Veteran's reports of in-service respiratory symptoms and the treatment of these symptoms have been consistent. Caluza v. Brown, 7 Vet. App. 498 (1995). Additionally, there is no evidence of record that contradicts his reports of being treated for respiratory symptoms while in the military. Thus, his statements are credible in this regard. However, while the Veteran's statements are competent evidence to describe a strange smell while stationed in Wyoming, as this comes through his senses, his statements that this "strange smell" was due to chemicals is not competent evidence, as this would require factual matters of which he did not have firsthand knowledge. Washington v. Nicholson, 19 Vet App. 362 (2005). The Veteran's statements reporting his pulmonary symptoms following service are competent evidence. Moreover, the Board finds these statements are credible. Caluza, 7 Vet. App. at 506. Regardless, the July 2012 VA examiner considered the Veteran's statements as to his respiratory history and concluded that the Veteran's lung disorder, COPD, was not related to his military service. The VA examiner instead attributed the Veteran's COPD to the Veteran's history of smoking. The VA examiner's opinions are considered highly probative, as they are definitive, based upon complete reviews of the Veteran's entire claims file, the Veteran's statements, clinical examination of the Veteran, and supported by a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-301 (2008); see also, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In reaching the above determination, consideration has been given to the Veteran's statements that his current lung disorder is related to his military service. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, a lung disorder is not a disability subject to lay opinions as to diagnosis and etiology. While symptoms of the disorders, such as difficulty breathing, may be reported by a layperson, the diagnosis and etiology of the disorder require medical training. The Veteran does not have the medical expertise to diagnose the claimed disorder, nor does he have the medical expertise to provide an opinion regarding its etiology. Thus, the Veteran's lay assertions as to the etiology of his COPD are not competent or sufficient in this instance. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the weight of the competent and probative evidence is against a finding that the Veteran's COPD is related to his military service, the preponderance of the evidence is against the claim of service connection for a lung disorder. Accordingly, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Therefore, service connection for a lung disorder, to include COPD, is not warranted. Hypertension and Sleep Apnea The Veteran testified during the December 2009 hearing before the Board that hypertension and sleep apnea were not diagnosed during his military service or within a year of discharge. He did not attribute his current hypertension and sleep apnea to a specific in-service occurrence or incident, or claimed to have experienced symptoms attributable to these disorders while on active duty. Instead, the Veteran testified that his hypertension and sleep apnea were related to his current lung disorder. Private medical records dated after the Veteran's military service reveal diagnoses hypertension and sleep apnea. These records show the earliest evidence of treatment for hypertension in July 1994, but do not include evidence of when the disorder was first diagnosed. A July 1996 private treatment record shows the earliest evidence of a sleep apnea diagnosis. Subsequent medical records show treatment for symptomatology related to the claimed disorders but do not include a medical opinion regarding their etiology. The Veteran was afforded a VA examination in June 2009. The Veteran reported a history of obstructive sleep apnea since the 1970s. The Veteran stated that he was first told that his blood pressure was high in 1959, but he did not begin to use medication to treat his blood pressure until the late 1960s. At a VA examination in February 2010, the Veteran reported that his sleep apnea was first diagnosed in the late 1970s. The clinical examination revealed a diagnosis of sleep apnea. The examiner noted that the Veteran was obese, with a short body habitus, which the examiner commented was typical for patients who experienced sleep apnea, although the examiner acknowledged the Veteran's report that he weighed less when he was diagnosed with the disorder. It was further noted that the Veteran did not think that he had snoring or abnormal breathing patterns during service. The evidence of record does not indicate, nor does the Veteran claim, that his hypertension and sleep apnea disorders began during his active duty service. Additionally, the medical evidence of record and the Veteran's competent lay statements do not indicate that these disorders were diagnosed until many years after his discharge from the military. Thus, service connection on a direct or presumptive basis is not warranted and need not be discussed further. Additionally, the Board finds that the preponderance of the evidence does not show that the Veteran's hypertension and sleep apnea disorders are etiologically related to a service-connected disability. See 38 C.F.R. § 3.310. Although the Veteran claims that both disorders are related to his COPD, service connection for a lung disorder has been denied in the preceeding discussion. Service connection is not in effect for any disability. Thus, there is no basis upon which secondary service connection can be awarded in this case. In summary, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for hypertension and sleep apnea due to a lung disorder. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension and sleep apnea, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a lung disorder, to include COPD, is denied. Service connection for hypertension is denied. Service connection for sleep apnea is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs