Citation Nr: 1309512 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 11-32 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired respiratory disability, to include asthma, chronic obstructive pulmonary disease, and mild obstruction. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran appellant served on active duty from February 1980 to September 1984. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the above Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2012, a Travel Board hearing was held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. The Board remanded the case for additional development in April 2012 and November 2012. The case has now been returned to the Board for appellate review. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). That holding was expanded to encompass other conditions in Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (claimant's identification of the benefit sought does not require technical precision). The appellant's application for benefits listed her claim as one for asthma and she has testified that she had bronchitis prior to her entry into service and that she used over-the-counter bronchodilators. Review of the medical evidence of record reveals a diagnosis of asthma, chronic obstructive pulmonary disease, and PFT findings of mild obstruction. As such, the Board has recharacterized the issue as indicated above. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the evidence shows that the Veteran's acquired respiratory disability was not present in service or until many years thereafter, is not related to service, and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for an acquired respiratory disability have not been met. 38 U.S.C.A. §§ 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim 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 and 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 in accordance with 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in November 2009 that fully addressed the notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. In addition, the Veteran was provided notice that a disability rating and an effective date for the award of benefits would be assigned if service connection was awarded. The Board notes that the Veteran was not provided notice regarding the evidence required to substantiate a claim based upon secondary service connection. However, the Veteran in her statements at the hearing before the undersigned Veterans Law Judge indicated that her shortness of breath is brought on by panic attacks and anxiety and that sometimes her breathing or asthma attacks are worse when she is stressed or anxious. Therefore, the Board finds that the Veteran has not been prejudiced because she has actual knowledge of the criteria to establish service connection as secondary to a psychiatric disorder. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.); Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and 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 appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records. The Veteran submitted was provided an opportunity to set forth her contentions during the hearing before the undersigned Veterans Law Judge. The appellant was afforded a VA medical examination in January 2013. In April 2012 the Board remanded the Veteran's claim. Relevant to the current claim, the Board ordered that attempts be made to obtain additional VA treatment records and records regarding an application for Social Security Administration benefits. In April 2012 the Veteran was sent a letter asking for additional identification of records and in May 2012 the Veteran was sent a letter providing additional notice regarding what is required to substantiate her claim. In addition, records regarding the Veteran's application for Social Security Administration benefits were obtained and associated with the claims file. In November 2012 the Board remanded the Veteran's claim for additional records regarding the Veteran to be obtained and associated with the claims file and for the Veteran to be afforded a VA medical examination. Subsequently, a request was made for additional treatment records regarding the Veteran, the Veteran was asked to provide identification and authorization of any additional records of treatment regarding chronic respiratory or pulmonary problems since 1984, and in January 2013 the Veteran was afforded a VA medical examination. Therefore, based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's April 2012 and November 2012 remands. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Significantly, neither the appellant nor her representative has 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 appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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). The Court held in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) that there are two duties imposed by 38 C.F.R. 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked-are not impacted by the Veteran's receipt of a VCAA-compliant notice letter. Here, during the hearing, although the Veterans Law Judge did not explicitly note the bases of the prior determinations or note the elements that were lacking to substantiate the Veteran's claims, the Veteran's representative demonstrated actually knowledge of this information. The representative's questions specifically elicited responses designed to show that the Veteran had an acquired respiratory disability related to her service and/or her psychiatric disability. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.) Accordingly, the Veteran is not shown to be prejudiced on this basis. In addition, the Veterans Law Judge sought to identify any pertinent, outstanding evidence that might have been overlooked. In the context of another claim at the same hearing, the Veterans Law Judge specifically asked the Veteran when she first sought treatment for her back. The Veteran thereafter responded that she found out in 2005 that she could go to the Bay Pines VA Healthcare System and that was when medications were started for her back. In addition, the subsequent remands by the Board and notice letters sent to the Veteran by VA asked her to identify additional treatment records regarding her claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3-2003. A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). In VAOGCPREC 3-2003, the VA's General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation by clear and unmistakable evidence in order to rebut the presumption of sound condition. See also Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The language of the regulation at 38 C.F.R. § 3.304(b) requires that VA, rather than the claimant, bears the burden of proving that the disability at issue pre-existed entry into service, and that the disability was not aggravated by service, before the presumption of soundness on entrance into active service may be rebutted. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Cotant v. Principi, 17 Vet. App. 116 (2003). Once the presumption of soundness at entry has been rebutted, aggravation may not be conceded unless the pre-existing condition increased in severity during service, pursuant to 38 C.F.R. § 3.306. See VAOPGCPREC 3-2003 (July 16, 2003). In addition, the usual effects of medical and surgical treatment in service, provided to ameliorate a pre-existing condition, will not be considered service connected unless the disorder is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed.Cir.1996). The Veteran seeks entitlement to service connection for an acquired respiratory disability. The Veteran contends that her military service aggravated a pre-existing respiratory condition. Service treatment records reveal that the Veteran was not diagnosed with any respiratory or pulmonary disorder upon examination at entrance to active service in August 1979. In addition, the Veteran did not report any shortness of breath at entrance to active service. In February 1980 the Veteran was diagnosed with an upper respiratory infection. In April 1980 the Veteran complained of coughing, sinus drainage, and chest pains for one week. She was diagnosed with sino bronchitis. The Veteran was diagnosed with an upper respiratory infection in November 1980 and February 1982. Review of the service treatment records and service personnel records does not reveal any indication that the Veteran was placed on any restriction, profile, or waiver due to any chronic respiratory or pulmonary disorder. After service, the Veteran underwent pulmonary function testing in October 2007. The tests revealed mild obstruction; however, no opinion was expressed regarding the etiology of the Veteran's mild obstruction. In November 2007, the Veteran underwent an x-ray that revealed no acute cardiopulmonary disease. Thereafter, the Veteran was diagnosed with asthma in April 2008 and has been consistently diagnosed with asthma since that time. In August 2008 the Veteran reported cough, wheeze, dyspnea, and dyspnea on exertion. The Veteran was diagnosed with chronic obstructive pulmonary disease (COPD)/emphysema with bronchiectasis and a six millimeter ill-defined density in the right upper lobe (RUL) (nodule v. infiltrate) in May 2010. In another treatment note dated in May 2010 it was reported that there was no evidence of pulmonary embolic disease. There were atelectatic changes in the lungs bilaterally with COPD and bronchiectasis. A six millimeter ill defined density in the right upper lobe, which may represent evolving infiltrate versus a nodule, was reported. Subsequently, the Veteran was noted to have no infiltrate. The Veteran complained of shortness of breath with exertion in May 2010. Pulmonary function tests in October 2010 revealed mild obstructive lung defect with significant improvement post bronchodilators. The lung volumes were found to be normal. At a hearing before the undersigned Veterans Law Judge in February 2012 the Veteran reported that prior to service she had bronchitis. She indicated that she was not treated with medications for bronchitis. The Veteran stated that she used an over the counter "asthma pump." She indicated that she did not have any waivers to enter the military. She stated that she received a waiver while she was in the military due to her shortness of breath. The Veteran reported that her military service made her respiratory condition worse due in part to the anxiety that she experienced. Pursuant to the Board remand, the Veteran was afforded a VA medical examination in January 2013. The Veteran was noted to be diagnosed with COPD, upper respiratory infection resolved, and bronchitis resolved. The examiner noted that a Report of Medical History, dated in August 1979 indicates that the Veteran reported no medications, no chronic or frequent colds, no sinusitis, no asthma, no tuberculosis, no shortness of breath, no chronic cough, and no hay fever. Physical examination was noted to reveal no lung abnormalities. The examiner discussed the Veteran's treatment for upper respiratory infections in service on multiple occasions and indicated that only in April 1980 did the Veteran had faint, scattered, inspiratory wheezing that was assessed as sinobronchitis. At the time of the other treatments the Veteran was noted to have no evidence of wheezing and the lung fields were noted to be clear on most examinations. The examiner reported that a Dental Patient History, dated in February 1984, revealed that the Veteran reported a diagnosis of asthma; however, the examiner noted that there was no objective confirmation. The examiner reported that the Veteran marked down that she had no frequent chest pains, no shortness of breath, no tuberculosis, no lung disease, was not on medication, and had not been under the care of a physician over the prior year. The examiner noted that the Veteran was reported to smoke one half pack of cigarettes per day in September 2007 and that in September 2010 there was mild emphysematous changes in the right middle lobe of the lung. Pulmonary function tests in October 2007 were noted to show mild obstructive ventilator defect and there were no bronchodilator test results. The examiner subsequently noted that pulmonary function tests in October 2007 showed that the Veteran had a mild obstructive lung defect with significant improvement post bronchodilators. Repeated pulmonary function tests in October 2012 indicated the same findings. The Veteran's COPD was noted to have been managed in an outpatient setting and to no require frequent emergency room visits or hospitalizations. The Veteran was noted to report that when she walks about 100 feet she will experience dyspnea on exertion. She was noted to still be smoking cigarettes and that she did not receive any care for any medical condition from 1984 to 2000. The examiner found that the Veteran did not have asthma, bronchiectasis, pulmonary vascular disease including pulmonary embolism, bacterial lung infection, mycotic lung infection, pneumothorax, gunshot/fragment wound, cardiopulmonary complications, respiratory failure, tumors or neoplasms or other pulmonary conditions. Pulmonary functions tests were noted to have been performed in December 2012 and the results were included in the examination report. After examination the examiner rendered the opinion that the Veteran had no clear and unmistakable evidence of any respiratory or pulmonary disorders that existed prior to her entry into active service. The rationale provided was that the Veteran's entry history and physical examination forms of August 1979 do not indicate that there were any prior or active respiratory or pulmonary disorders that existed prior to her entry into active duty. The examiner rendered the opinion that the Veteran's current respiratory or pulmonary pathology is not causally or etiologically related to any incident of military service. The rationale provided was that the Veteran's current respiratory condition is that of COPD and that COPD is characterized by airflow limitation that is not fully reversible. Risk factors for this included cigarette smoking and increased airway responsiveness. The examiner noted that the Veteran was reported in May 2011 to be a smoker of one half pack per day for 25 plus years. The examiner stated that while in the service the records demonstrate that the Veteran primarily had upper respiratory infections as her respiratory or pulmonary incidents in the military service. However, it was noted that neither upper respiratory infections nor sinobronchitis episodes are risk factors or causation for COPD according to the consensus of medical literature. It was noted that there are no other incidents while in the military that would have led to her current respiratory or pulmonary condition. The examiner rendered the opinion that the Veteran's current respiratory or pulmonary pathology is not related to symptoms or signs she may have manifested in service, including complaints of shortness of breath. The examiner noted that the episodes of the shortness of breath and upper respiratory infections noted in service were self-limiting situations that resolved. It was reported that one episode of shortness of breath that was related to costochondritis arose from a musculoskeletal etiology and not a respiratory one. It was also noted that a transient condition that was not associated with either chronicity or complications while in service. The examiner stated that they had no role either as a causation or risk factor for the development of COPD. However, the examiner reported that the Veteran's cigarette consumption would have been a factor in the development of her COPD. The examiner rendered the opinion that the Veteran's current respiratory or pulmonary pathology is not related to symptoms and signs that may have occurred within one year after her separation from service in September 1984. The examiner noted that there were no episodes of respiratory complaints seen from the records present one year after separation from service. The examiner stated that the Veteran's current respiratory is COPD and it was diagnosed in 2007 by pulmonary function tests. The examiner found that there were no earlier records present one year after the Veteran's service separation that would have confirmed the presence of COPD. The examiner rendered the opinion that the Veteran's current respiratory or pulmonary pathology is not caused by, related to or aggravated by the Veteran's service connected psychiatric disability. The examiner noted that COPD is characterized by airflow limitation that is not fully reversible. The examiner stated that risk factors for it included cigarette smoking and increased airway responsiveness; however, psychiatric disorders are neither a risk factor nor causation for COPD development according to the consensus of the medical literature. The examiner noted that the Veteran has not had any aggravation of her COPD in that it has not required oxygen, chronic antibiotic therapy, steroids, escalating doses or additional medications to maintain stability, frequent emergency room visits, or the need for hospitalizations in order to maintain her respiratory condition. The Board finds that entitlement to service connection for a respiratory disability is not warranted. The Board finds that the Veteran was sound upon entry into active service. The Board acknowledges that the Veteran reports that she had bronchitis prior to service and that she went to the doctor to know that it was bronchitis but that she was not prescribed any medication. The Board further acknowledges that the Veteran reported that she used an over the counter medication to treat her bronchitis. However, there is no medical evidence that the Veteran was diagnosed with any chronic respiratory or pulmonary disorder prior to entrance to active service. Upon entry to active service the Veteran was not noted to have any respiratory or pulmonary disorders. In addition, the Veteran reported that she did not have any waivers to enter military service. After examination in January 2013 the examiner rendered the opinion that the Veteran had no clear and unmistakable evidence of any respiratory or pulmonary disorders that existed prior to her entry into active service. Therefore, the Board finds that the Veteran was sound upon entrance to active service. Service treatment records reveal multiple treatments for upper respiratory infections and for sinobronchitis; however, they do not reveal any diagnosis for any chronic respiratory disorder. The Board acknowledges that the Veteran has reported that she complained about shortness of breath in service and indicated that she received a waiver for physical activity while in service. However, service treatment records and service personnel records do not reveal any record of the Veteran being given a waiver or profile for any chronic respiratory or pulmonary disorder. As such, although the Veteran is competent to report that she was given a waiver or placed on a profile for a chronic respiratory or pulmonary disorder, the preponderance of the evidence is against this assertion. The Board notes that there is no indication that the Veteran was diagnosed with any chronic respiratory or pulmonary disorder until 2007, more than twenty years after separation from service. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In addition, the Veteran reported that she did not receive any medical treatment from 1984 to 2000. After examination in January 2013 the examiner diagnosed the Veteran with COPD, upper respiratory infection resolved, and bronchitis resolved. The examiner rendered the opinion that the Veteran's respiratory or pulmonary disorder is not causally or etiologically related to any incident of service. The examiner reasoned that the Veteran's smoking is a risk factor for the development of COPD but that the Veteran's in service infections and sinobronchitis were not risk factors for the development of COPD. The examiner rendered the opinion that Veteran's current respiratory or pulmonary pathology is not related to the Veteran's symptoms or signs in service, including complaints of shortness of breath. The examiner reasoned that the Veteran's episodes of shortness of breath in service were self-limited situations that resolved. The examiner rendered the opinion that the Veteran's current respiratory or pulmonary pathology is not related to symptoms and signs that may have occurred within one year after her separation from service in September 1984 as there were no episodes of respiratory complaints within one year after separation from service. Lastly, the examiner rendered the opinion that the Veteran's current respiratory or pulmonary pathology is not caused by, related to or aggravated by the Veteran's service connected psychiatric disability. Again, the examiner noted that the risk factors for COPD include cigarette smoking and increased airway responsiveness. The examiner noted that psychiatric disorders are neither a risk factor nor causation for COPD development according to the consensus of the medical literature. The examiner stated that the Veteran has not had any aggravation of her COPD in that it has not required oxygen, chronic antibiotic therapy, steroids, escalating doses or additional medications to maintain stability, frequent emergency room visits, or the need for hospitalizations in order to maintain her respiratory condition. The Board finds the VA medical examiner's opinion to be highly probative as it is based upon examination of the Veteran, review of the claims file, and is supported by thorough reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-04 (2008). A January 2013 Supplemental Statement of the Case denied service connection and discussed evidence regarding both direct service connection and secondary service connection. Therefore, the Board finds that both theories of entitlement were considered. Therefore, although the Veteran is currently diagnosed with an acquired respiratory disability, variously diagnosed as asthma, COPD, and emphysema, the preponderance of the evidence is against a finding that the disability incurred in service, arose within one year of separation from service, or is causally related to the Veteran's active service. In addition, the preponderance of the evidence is against a finding that the Veteran's acquired respiratory disability is causally related to or aggravated by the Veteran's service-connected psychiatric disability. As such, entitlement to service connection for an acquired respiratory disability, to include asthma, COPD, and mild obstruction, is denied. ORDER Service connection for an acquired respiratory disability, to include asthma, COPD, and mild obstruction, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs