Citation Nr: 1309136 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 07-34 835A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a chronic respiratory disorder, claimed as chronic obstructive pulmonary disease (COPD), asthma, and bronchitis. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1967 to October 1969, including service in the Republic of Vietnam (Vietnam) during the Vietnam era (defined as January 9, 1962 to May 7, 1975). This matter comes on appeal before the Board of Veterans' Appeals (Board) from a rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in December 2012, when it remanded the case in order to provide the RO with the opportunity to review certain evidence in the first instance, and to issue a supplemental statement of the case (SSOC). An SSOC was issued in January 2013. As an initial matter, when the Board's remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the instant case, the Board finds that there has been effective compliance with its remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) FINDING OF FACT The competent evidence of record does not support a finding that a relationship exists between the Veteran's currently-diagnosed respiratory disorder and his military service. CONCLUSION OF LAW The Veteran's respiratory disorder was not incurred or aggravated by the Veteran's active duty military service, and it may not be presumed to have been incurred therein. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 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 Veteran. 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, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VCAA also defines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 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). 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. See 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 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. See id. at 486. Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In the instant case, correspondence dated March 2003 notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The Veteran filed his claim prior to the Court's 2006 decision in Dingess, and as such, he was not provided with full Dingess notice at the time of the March 2003 VCAA letter. Instead, in March 2011, pursuant to the Court's holding in Dingess, the Veteran was provided with notice regarding the degree of disability and effective date. Additionally, since the time of the March 2011 Dingess notice, the Veteran has been provided with several readjudications of his claim, and the Board finds that there has been no prejudice to the Veteran requiring additional notice. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). The Veteran's service treatment records, VA medical treatment records, private medical records, and records from the Social Security Administration (SSA) have been obtained, to the extent available. There is no indication that there is any additional relevant evidence that is available and not part of the claims file. The Veteran was provided with a VA examination in April 2011. Upon review of this examination report and the other medical evidence of record, in April 2012, the Board requested an expert medical opinion from a VHA physician. A VHA opinion was provided in June 2012. Upon review of the VHA opinion, in July 2012, the Board requested clarification, and a clarifying opinion was provided in September 2012. Upon review of the June 2012 VHA opinion, as supplemented in September 2012, the Board observes that the VHA expert reviewed the Veteran's claim file, past medical history, recorded his current complaints and history, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The VHA opinion is therefore adequate for the purpose of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). While the Veteran has submitted a statement expressing disagreement with certain findings in the VHA opinion, as will be discussed in further detail below, the Board places more weight on the opinion of the VHA expert than on the Veteran's lay opinions. The Veteran declined the opportunity to present testimony before a Veterans Law Judge. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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." For certain chronic diseases set forth in 38 C.F.R. § 3.309, a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (noting that a "continuity of symptomatology" as specified in 38 C.F.R. § 3.303(b) affords an alternative route to service connection only for specific chronic diseases). The Board notes, however, that the Veteran's respiratory disorders are not among the chronic diseases set forth in 38 C.F.R. § 3.309, and therefore service connection cannot be established based solely on a continuity of symptomatology. See Walker. A veteran who had active military service in Vietnam during the Vietnam era is presumed to have been exposed to an herbicide agent during such service, unless there is affirmative evidence to establish that the veteran was not so exposed. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). If such exposure occurred, the veteran is entitled to a presumption of service connection for certain disorders listed under 39 C.F.R. § 3.309(e). The Board notes that the Veteran's respiratory conditions, including asthma, COPD, and bronchitis, are not listed among the disorders entitled to presumptive service connection. See 39 C.F.R. § 3.309(e) (2012). While the Board notes that respiratory cancers (that is, cancer of the lung, bronchus, larynx, or trachea) are entitled to presumptive service connection, the Veteran had not been diagnosed with a respiratory cancer. He does not contend otherwise. Therefore, despite serving in Vietnam during the Vietnam era, the Veteran's respiratory conditions are not entitled to presumptive service connection. Notwithstanding the foregoing, the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), states that even when presumptive service connection is not appropriate, a veteran is not precluded from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Though Combee concerns radiation exposure rather than herbicide exposure, it applies by extension to cases, such as this one, that involve herbicide exposure. See McCartt v. West, 12 Vet. App. 164, 167 (1999). The Board will therefore analyze the possibility of entitlement to service connection for a respiratory condition on a direct basis. With regard to the first Hickson element, medical evidence of a current disability, the June 2012 VHA letter, along with many other medical treatment records, demonstrates that the Veteran suffers from advanced COPD most consistent with a mixture of chronic bronchitis and emphysema. The first Hickson element, medical evidence of a current disability, is met. With respect to the second Hickson element, in-service disease or injury, service treatment records are silent for any complaints, treatment, or diagnosis of a respiratory disorder. He specifically denied any history of asthma, shortness of breath, chest pressure, or a chronic cough when he was examined for service discharge in October 1969. His lungs and chest were described as normal on physical examination. Put another way, there is no competent, objective evidence of a chronic respiratory disorder (disease) in service. However, Veteran claims that he suffers from a respiratory disability as a result of his exposure to herbicides and other vesicant agents (that is, substances that cause blistering) such as gunpowder residue. The Veteran served in Vietnam during the Vietnam era and thus, as noted above, his exposure to herbicides is conceded. Furthermore, his service separation document indicates that he served in an artillery unit, which is consistent with the Veteran's claimed exposure to vesicant agents. The second Hickson element is therefore met as to an in-service injury. Regarding the third Hickson element, medical evidence of nexus, the determination of the relationship, if any, between the Veteran's current disability and either his military service or his diabetes, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Turning to the facts in the instant case, in January 2003, the Veteran reported to Dr. F.J.R. that he smoked up to two packs of cigarettes per day for approximately 40 years. An October 2003 note from Dr. W.C.A. indicates that he treated the Veteran in the 1970s and 1980s for acute bronchitis. A March 2004 note from Dr. W.C.A. states that the Veteran's service in the military and associated exposure to Agent Orange most likely caused his COPD, asthma, and chronic bronchitis. In June 2004, D.S., a VA Advanced Registered Nurse Practitioner, stated that the Veteran had a history of COPD and chronic bronchitis since 1970, and that the Veteran's severe COPD was more likely than not related to Agent Orange exposure. Similarly, an October 2004 note from D.S. stated that the Veteran had severe obstructive lung disease. D.S. stated that it was more likely than not that the Veteran's exposure to external irritants while on active duty contributed to the Veteran's severe lung disease. In an August 2004 medical examination, the Veteran stated that he smoked one pack of cigarettes per day from 1970 to 1990. In August 2005, the Veteran reported that he smoked one pack of cigarettes per day for 40 years. The Veteran received a VA examination in April 2011. The examiner noted that the Veteran had previously stated that he smoked up to two packs of cigarettes per day for almost 40 years. The Veteran told the examiner that he smoked fewer than two packs per day, but he admitted to a 40-year use of cigarettes of usually less than a pack per day, and possibly more on weekends. The VA examiner indicated that the Veteran was first diagnosed with chronic bronchitis in 1999. While the examiner noted the presence of treatment records before 1999, including episodes of acute bronchitis in 1993 and 1994, the examiner did not believe that either episode was indicative of chronic recurring bronchitis or COPD. The examiner also pointed out that if the Veteran had been exposed to agents that affected his respiratory functioning while on active duty, there would have been observable symptomatology at the time of his separation physical examination in October 1969. Since there were no symptoms observed in October 1969, it was the examiner's opinion that the Veteran's COPD was less likely than not related to his active duty service, but rather due to a decades-long history of heavy cigarette use. Upon review of the April 2011 examination report, in April 2012, the Board noted that while the examiner did not believe that a chronic respiratory disorder was shown until 1999, this opinion did not take into consideration a number of lay statements from the Veteran, his friends, and his family members who recalled long-standing symptoms of dyspnea and exhaustion. Specifically, the Veteran's sister-in-law stated that the Veteran never had respiratory problems before entering active duty, but he experienced episodes of bronchitis approximately twice annually after returning. The Veteran's nephew also stated that he recalled the Veteran often becoming sick at work and routinely coughing. Other friends similarly stated that the Veteran has experienced breathing difficulty for as long as they could remember. There is nothing in record that necessarily refutes the credibility of these statements. Therefore, noting the weaknesses in the April 2011 examination, in April 2012, the Board requested that a medical expert from the VHA offer an etiological opinion taking into account the above-described lay statements. A VHA opinion was offered by the chief of the pulmonary section of the VA Boston Healthcare System in June 2012, and a clarifying opinion was provided in September 2012. The letter indicated that the Veteran had experienced a chronic respiratory disorder that began after active service. The letter indicated that the Veteran suffered from advanced COPD most consistent with a mixture of chronic bronchitis and emphysema (that is, a reduction of diffusing capacity). The letter reviewed the results of the Veteran's pulmonary function testing (PFT), and it found that the Veteran had a severe persistent obstructive pulmonary disorder with preservation of total lung capacity and decrease in diffusion capacity. No PFTs were available before 2003. The VHA expert opined that the Veteran's chronic respiratory disorder did not arise in service. The expert observed that the Veteran did not experience trauma to the chest in service, and at the end of service, the Veteran was reported to have a normal lung examination. There was no history of respiratory disorders in service. The examiner further observed that it was not likely that the Veteran's respiratory disorder was related to exposure to Agent Orange, gunpowder residue, or similar contaminants. As a rationale for this opinion, the VHA expert noted that COPD results most commonly from cigarette smoking in susceptible individuals. A subpopulation of patients with chronic persistent asthma can also develop COPD. A review of the Veteran's records mentioned the presence of asthma. There was no documentation of childhood asthma or asthma during the Veteran's military service. The examiner noted that patients with smoking-induced bronchitis may have associated bronchospasm that may be confused with asthma. The VHA expert noted that the Veteran smoked cigarettes for approximately 40 years and quit smoking at or around 1996. The record indicated that the Veteran smoked between one and two packs of cigarettes each day. This amount of smoking in a susceptible patient is sufficient to account for all of the pulmonary function abnormalities and clinical course. The clinical record revealed evidence of recurrent episodes of bronchitis. The record indicates that the Veteran quit smoking because of recurrent bronchitis. Thus, while the VHA expert conceded that the Veteran had been exposed to herbicides and other vesicant agents in service, the expert found that it was highly unlikely that the respiratory disorder developed secondary to exposure to such substances. Epidemiological studies have not demonstrated an association between COPD and exposure to Agent Orange, gunpowder residue, or similar contaminants. The clinical course and pulmonary function findings were most consistent with smoking-related COPD. In July 2012, the Board requested a clarification opinion from the VHA expert, noting that the examiner's report was not internally consistent, and that it did not sufficiently address the lay evidence of record. In September 2012, the VHA expert offered a clarifying opinion noting that acute episodes of bronchitis usually resolve without sequelae. Recurrent episodes of bronchitis and asthma can be initiated by a severe episode of bronchitis. In some cases, episodes of bronchitis reflect an underlying asthmatic condition. However, the examiner noted that the Veteran had no documented respiratory problems in service. There is no evidence in the record indicating that the respiratory disorder began or was exacerbated during active service. The evidence indicated that respiratory problems were noted after active service, although the exact date of onset was not defined. The examiner acknowledged that the record contained lay statements from the family describing episodes of bronchitis at least once or twice a year beginning in 1970, and a physician's statement indicating treatment for episodes of bronchitis during the 1970s. The examiner found that the relation between these bronchitic episodes that occurred after completion of service and the subsequent development of a severe respiratory disorder was uncertain. The Veteran has alleged a number of deficiencies with this opinion. The Veteran has stated on a number of occasions, for example in November 2012 and February 2013, that he did not receive a separation examination, and that his lungs were not normal when he left active duty service. Despite the Veteran's assertions that his lungs were abnormal during active duty service, the Veteran's service treatment records are silent as to any lung abnormalities during service. An examination was in fact conducted on October 9, 1969, which is a mere 16-days prior to his separation from service. The Veteran at time specifically denied having any chronic respiratory symptoms and none were shown by examination. Furthermore, the VHA expert, upon review of the evidence of record, was unable to find evidence demonstrating that the Veteran suffered from a lung abnormality during active duty service. The Board also notes that the opinion of the VHA expert does not rely solely on a lack of a showing of a lung condition at separation as a rationale for its opinion. As will be discussed in further detail below, the etiology of a lung condition is outside the realm of knowledge of a lay observer, and the Board therefore affords the VHA expert's opinion with greater probative weight than the Veteran's current assertions. In November 2012, the Veteran also stated that he did not smoke one to two packs of cigarettes per day for 40 years, as noted by the VHA expert. Instead, the Veteran indicated that he smoked between 35 and 40 years, most often smoking one-half pack per day or less, and smoking up to one pack per day only on the weekends. The Board finds the Veteran's current statements minimizing his use of cigarettes to be inconsistent with the weight of medical evidence to the contrary. For example, in January 2003, the Veteran stated to a private clinician that he smoked up to two packs per day for 40 years. As he was seeking care, as opposed to pursuing a claim for benefits, this history is provided significant probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Indeed, a similar history was provided in August 2004 and August 2005, wherein, respectively, the Veteran stated that he smoked one pack of cigarettes per day for 30 years, and that he smoked one pack of cigarettes per day for 40 years. In April 2011, the Veteran stated that he had a 40-year use of cigarettes of usually less than a pack per day, with possibly more smoking occurring on weekends. Though the Veteran has offered conflicting accounts of the length of his smoking history and the number of cigarettes he smoked, the Board finds that the evidence of record is generally consistent with the June 2012 finding of the VHA expert that the Veteran smoked cigarettes for approximately 40 years, and that he smoked between one and two packs of cigarettes each day. The Board finds that the Veteran's current account that he generally smoked one-half pack of cigarettes per day or less to be inconsistent with his previous accounts to clinicians. His current assertion lacks credibility and the Board affords it with little probative weight. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Upon review of the evidence, the Board observes that the record contains two opinions linking the Veteran's current respiratory disorder to military service: the March 2004 note from Dr. W.C.A., and the June 2004 and October 2004 notes from D.S. Contrary to these positive opinions, in June 2012, as supplemented in September 2012, the VHA expert found that the evidence did not support a connection between the Veteran's military service and his respiratory disorder. The Board ultimately affords the opinion of the VHA expert with more probative weight than the positive nexus opinions of record for several reasons. The opinions of Dr. W.C.A. and D.S. are simply conclusory statements and are not supported by a rationale. They do not address the Veteran's 30- to 40-year smoking history at all. Contrast these bare conclusions with the conclusion of the VHA expert, which was supported by a robust rationale referencing medical literature and the evidence of record. The Board further notes that the June 2004 opinion of D.S. indicated that the Veteran had a history of COPD and chronic bronchitis "since 1970," which is an assertion that is apparently based only on the Veteran's self-reported history and is not otherwise supported by the medical evidence of record. A medical opinion that is premised upon an unsubstantiated account is of no probative value. See, e.g., Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996); Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993). To the extent that the Veteran himself believes that his respiratory disorder is related to military service, the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (that is, experiencing physical symptoms such as shortness of breath). See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With this said, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, namely, the etiology of a respiratory condition including COPD, asthma, and bronchitis, the issue of causation of such an ailment is a determination outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, although the Board has carefully considered the lay contentions of record from the Veteran and others suggesting that his respiratory disability is related to his military service, the Board ultimately affords the weight of the objective medical evidence of record, which fails to find a connection between the Veteran's respiratory disorder and his military service, with greater probative weight than the lay opinions of record. Moreover, and while not being outcome determinative, the Board emphasizes that continuity of symptomatology, in this instance, does not fill the nexus/chronicity void. In light of the above, the Board finds that the probative evidence of record does not demonstrate a nexus between the Veteran's respiratory disorder and active duty military service, and it finds that the third Hickson element has not been met. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The benefit sought on appeal is accordingly denied. ORDER Service connection for a chronic respiratory disorder is denied. ____________________________________________ MICHAEL HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs