Citation Nr: 1311657 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 12-17 487 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a chronic respiratory disorder other than pneumonia, variously diagnosed to include chronic obstructive pulmonary disease (COPD), including as due to cold weather exposure. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for pneumonia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from May 1944 to April 1947 and from August 1950 to September 1951. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that denied the Veteran's claim for service connection for a respiratory disorder other than pneumonia, variously diagnosed as COPD. In April 2012, the Veteran filed a Notice of Disagreement. The RO furnished the Veteran a Statement of the Case in June 2012, and the Veteran filed a Substantive Appeal (VA Form 9) also in June 2012. The September 2011 rating decision also implicitly reopened the Veteran's previously denied claim of service connection for pneumonia and denied the claim for pneumonia on the merits. In June 2012, the Veteran filed a Notice of Disagreement regarding this issue via his VA Form 9. The Veteran indicated in his June 2012 Substantive Appeal that he wanted to be scheduled for a travel board hearing. However, the Veteran withdrew his hearing request in July 2012. As the record does not contain any additional requests for an appeals hearing, the Board deems the Veteran's request for a hearing to be withdrawn. See 38 C.F.R. § 20.702 (2012). The Board remanded this claim for additional development in November 2012. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The matter of service connection for a respiratory disorder was developed and certified as a claim for service connection for COPD. However, the case law mandates that in appropriate cases VA consider such claims more broadly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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). The issue of whether new and material evidence has been submitted to reopen a claim of service connection for pneumonia is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The record evidence confirms the Veteran's participation in combat, and his lay assertions of exposure to cold weather in Korea during service are consistent with the circumstances, conditions or hardship of his combat service. 2. The Veteran did not exhibit a chronic respiratory disorder (not including pneumonia), variously diagnosed to include COPD (including bronchiectasis), in service or for many years thereafter, and the most probative and persuasive evidence fails to link any current respiratory disorder to service. CONCLUSION OF LAW The criteria for establishing service connection for a chronic respiratory disorder other than pneumonia, variously diagnosed to include COPD, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304(d), 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a March 2011 letter issued prior to the rating decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The March 2011 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment and personnel records, private and VA treatment records, a VA examination report, and the Veteran's statements. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included scheduling the Veteran for a VA examination in which the examiner needed to obtain the Veteran's history of exposure to airborne contaminants, tobacco use, and respiratory symptoms before and since discharge from service. The VA examiner was instructed to provide an opinion regarding whether the Veteran's current respiratory disorder was related to service, including cold weather exposure. Additionally, if the Veteran reported a history of respiratory disease prior to 1950, the Veteran needed to provide an opinion regarding whether a preexisting respiratory disorder was aggravated by service. In response, the RO/AMC scheduled the Veteran for a January 2013 VA examination in which the examiner followed all of the remand instructions. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the disease entity is established, there is no requirement of evidentiary showing of continuity of symptomatology. If the condition noted during service (or within the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legimately questioned, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Certain chronic diseases, such as bronchiectasis, may be presumed to have been incurred in service if manifested to a compensable degree within one year from discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he was exposed to cold weather in Korea, and that he now has a respiratory disorder other than pneumonia, variously diagnosed as COPD, as a result of that exposure. The service personnel records confirm the Veteran's participation in combat action throughout the Korean peninsula during the winter of 1950-51. In a February 2011 statement, the Veteran described the cold weather conditions that he had experienced in combat that winter. He reported that he had fought in 0 degrees (Fahrenheit) to -20 degrees weather, and that the wind chill had been -70 degrees. He stated that there had been no place to get warm during combat. In accordance with 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), the Board finds that the Veteran's lay contentions regarding exposure to cold weather are consistent with the circumstances, conditions or hardships of such service and may be accepted as satisfactory, credible evidence that the Veteran suffered a cold injury in combat. Service treatment records from the Veteran's first period of active duty are silent for any symptoms, diagnoses, or treatment of a respiratory disorder. On separation examination in February 1947, the Veteran made no respiratory complaints, and his respiratory system was found to have no abnormalities. Indeed, a February 1947 chest x-ray was normal. In a March 1950 medical history questionnaire obtained during the Veteran's Marine Reserve service, the Veteran reported that his civilian occupation was as an insulator for a petroleum company and that he had a history of pneumonia. A military examiner noted no respiratory symptoms or abnormalities on an August 1950 examination prior to the Veteran's mobilization for active duty in Korea. Service treatment records from the Veteran's second period of active duty show that in December 1950, the Veteran sought treatment for body aches, sore throat, and cough. A medical officer diagnosed influenza and transferred the Veteran to a hospital for care. The Veteran was admitted for four days of treatment, and the final diagnosis was acute laryngitis caused by an unknown organism. The Veteran returned to full duty. On separation examination in September 1951, the examiner found no respiratory symptoms or abnormalities. In a March 1955 quadrennial Reserve examination, the Veteran reported a history of whooping cough, but denied any history of shortness of breath, asthma, pain or pressure in the chest, or chronic cough. The examiner noted no respiratory abnormalities. Post-service VA and private medical records dated from October 2008 to February 2012 show that the Veteran received intermittent treatment for various respiratory disorders, including COPD, asthma, bronchitis with acute exacerbation, and asbestosis. The Veteran was hospitalized in December 2008 for six days for symptoms of shortness of breath, cough, and respiratory congestion. The discharge diagnosis was acute bronchitis causing bronchospasm and hypoxia, resolving. The physician noted that he could not rule out possible underlying infiltrate. In follow-up treatment encounters over the next two years, the primary care and pulmonary specialist physicians diagnosed severe COPD, mild asbestosis, and bronchitis. The Veteran was prescribed oral medication, inhalers, and oxygen. In January 2009, the private pulmonary specialist noted that the Veteran was a 30 pack-year smoker in the past. A January 2009 CT scan of the chest revealed bilateral pleural calcifications that were more pronounced on the left side, and early bronchiectasis in the right upper lobe. In his June 2012 Substantive Appeal, the Veteran asserted that he would be spending the rest of his life on inhalers and oxygen and noted that his physicians had instructed him to remain out of cold weather. On VA examination in January 2013, the Veteran denied having any respiratory conditions prior to his World War II service from May 1944 to April 1947 or during the period after his World War II service and prior to his Korea service from August 1950 to September 1951. He reported smoking about 1 pack of cigarettes per day from 1944 to 1954, not smoking for 5 years, and then smoking 1 pack per day for about 10 more years. Occupationally, he stated that he worked manual labor for 2 years as an insulator for an oil company with "unibestos" and no respiratory protection. However, he denied any in-service exposure to asbestos. He indicated that when he was in the Chosin Reservoir in Korea, he had hand frostbite which resolved itself. He also reported being hospitalized at an Army hospital in December 1950 for pneumonia, influenza, and laryngitis. He indicated that he had not experienced any respiratory complaints until 8 to 10 years ago and stated that 4 years ago, he was hospitalized and started on medication. He stated that he had received diagnoses of both COPD and asthma from different physicians. He reported that his last care for a respiratory condition was 4 months ago and that his next treatment session would be in May 2013. Examination revealed that the Veteran's respiratory condition required the use of oral bronchodilators, antibiotics, and outpatient oxygen therapy. A January 2013 x-ray of the chest showed patchy bilateral perihilar increased markings, which could be related to bronchitis or perhaps some areas of scarring/fibrotic change. Pulmonary function testing results indicated that the Veteran had FEV-1/FVC of 80 percent. The Veteran's respiratory condition was found to impact his ability to work because of shortness of breath. The examiner diagnosed the Veteran with COPD and asthma. He reviewed the entire claims file and opined that the Veteran's respiratory conditions were less likely than not incurred in or caused by service. The examiner indicated that after a review of all the medical records, taking a medical history, and performing a physical examination, he found that the Veteran's current respiratory condition was less likely as not permanently a result of, or aggravated by, any events in service or within a year after discharge from service, including in-service illnesses and cold weather exposure. The examiner also reported that the respiratory condition was not caused by or worsened by an already service-connected disability. Instead, the examiner found that it was at least as likely as not that the Veteran's respiratory condition was a result of unknown post-service conditions, including tobacco smoking. He explained that the Veteran had not reported any respiratory conditions that had existed prior to service. Additionally, service treatment records showed no residual respiratory conditions related to the 1950 illness, and the Veteran had not reported any residuals of the 1950 illness either. The examiner further noted that the earliest reported post-service respiratory complaints were in 2008 with initial chronic treatment required in 2010. Finally, the examiner indicated that the Veteran had not reported any in-service asbestos exposure but had instead reported civilian exposure to "unibestos" insulation at an oil refinery job, which from the description, appeared to be an asbestos-insulating material. Upon review of the record, the Board finds that service connection for a respiratory disorder other than pneumonia, to include COPD and bronchiectasis, is not warranted. The Board reiterates that the Veteran's service treatment records only show one instance of treatment for influenza in December 1950. In addition, COPD including bronchiectasis was not clinically shown in service or shown to a compensable degree within one year following his discharge from service. Moreover, at no time did any of the Veteran's treating providers find that his respiratory disorders were due to his periods of service. Additionally, the January 2013 VA examiner reviewed the claims file, interviewed and examined the Veteran, and provided adequate reasons and bases for the opinion that it was less likely than not that the Veteran's COPD and asthma were due to his period of service. He instead found that the Veteran's respiratory disorders were secondary to post-service conditions, including tobacco smoking. For these reasons, the January 2013 opinion by the January 2013 VA examiner is afforded great probative value. 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, a respiratory disorder other than pneumonia, variously diagnosed to include COPD, falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset and symptoms of shortness of breath, an actual diagnosis of COPD or other respiratory disorders require objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, whether symptoms the Veteran experienced in service or following service are in any way related to any current respiratory disorder (not including pneumonia requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). To the extent that the Veteran, himself, believes that any respiratory disorder (not including pneumonia) that he now has, to include COPD and asthma, is due to service, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinion as to the etiology of any current respiratory disorder (not including pneumonia is not competent medical evidence, as such question requires medical expertise to determine. Id. Thus, the Board finds the medical opinion of record to be of greater probative and persuasive value than the Veteran's lay contentions. As noted above, the most probative medical opinion is against a finding that a chronic respiratory disorder other than pneumonia, to include COPD and asthma, is related to service. As a final matter, the Board acknowledges that the Veteran indicated at his January 2013 VA examination that he had last received treatment for his respiratory condition four months prior to the examination, and that this medical record does not appear to be in the claims file. However, in this case, the VA examiner has explained that the lack of post-service complaints or treatment prior to 2008 result in a conclusion that current respiratory disorder other than pneumonia is not related to service. Thus, regardless of whether the Veteran may have had continued treatment four months prior to the January 2013 VA examination, in the absence of a link between the current respiratory disorder other than pneumonia and the findings in service, there is no basis to establish service connection, and further remand to obtain this recent treatment record is not necessary. See Soyini v. Principi, 1 Vet. App. 540, 546 (1991) (concluding that remand is unnecessary where it "would result in this Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran"). In sum, the Board finds that the probative and persuasive evidence establishes that the Veteran did not have a chronic respiratory disorder (not including pneumonia) in service, and there is no competent and probative evidence indicating the Veteran had COPD, including bronchiectasis, manifested to a compensable degree within a year following discharge from service. Likewise, the weight of the competent and probative evidence does not show the Veteran's current respiratory disorders other than pneumonia are related to his period of service, to include his exposure to cold weather therein. Accordingly, service connection for a respiratory disorder (not including pneumonia), variously diagnosed to include COPD, is not warranted on any basis. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a respiratory disorder other than pneumonia, variously diagnosed to include COPD, including due to cold weather exposure, is denied. REMAND Additional development is needed prior to further disposition of the issue of whether new and material evidence has been submitted to reopen a claim of service connection for pneumonia. The Board notes that the Veteran's claim for pneumonia was originally denied by the RO in an unappealed December 1952 rating decision. In March 2011, when the Veteran filed a claim for service connection for COPD as due to cold weather exposure, the RO appeared to have also construed his claim to include a claim to reopen his previously denied pneumonia. Subsequently, in a September 2011 rating decision, in addition to denying service connection for COPD, the RO implicitly reopened a separate claim of service connection for pneumonia and then denied the claim on the merits. The Board notes that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Following the September 2011 rating decision reopening the claim for service connection for pneumonia and then denying service connection for such disability, the Veteran expressed disagreement and made reference to his pneumonia in his June 2012 VA Form 9. The Board construes the June 2012 VA Form 9 as a valid and timely Notice of Disagreement with the issue of whether new and material evidence has been submitted to reopen a claim of service connection for pneumonia. See 38 C.F.R. §§ 20.201, 20.302 (2012). Accordingly, the Board is required to remand this issue for the issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO/AMC has issued the Statement of the Case, the issue should be returned to the Board only if the Veteran perfects an appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Issue a Statement of the Case pertaining to the issue of whether new and material evidence has been submitted to reopen a claim of service connection for pneumonia, so that the Veteran may have the opportunity to complete an appeal on this issue (if he so desires) by filing a timely Substantive Appeal. This issue should only be returned to the Board if a timely Substantive Appeal is filed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs