Citation Nr: 1314033 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 05-02 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for residuals of pneumonia, to include chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Virginia Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) from February 1961 to August 1961 and active service from October 1961 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In December 2006, the Veteran provided testimony relevant to the appeal at a Board hearing held before the undersigned Veterans Law Judge (VLJ) by videoconference. A transcript of the hearing is of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the December 2006 Board hearing, the undersigned identified the issue on appeal at that time (i.e., whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of pneumonia, to include COPD). The Veteran provided testimony regarding current treatment for pulmonary disease, hospitalization and treatment for pneumonia during ACDUTRA service, respiratory problems experienced since being treated for pneumonia during ACDUTRA service, and the opinion of his treating medical provider that scarring on the lungs due to pneumonia made him more susceptible to lung disease. The undersigned asked the Veteran if a statement from his treating medical provider had been submitted in connection with the appeal. The undersigned also posed several questions of the Veteran in order to obtain additional information regarding current and past treatment for respiratory problems in order to determine whether additional treatment records needed to be obtained in connection with the appeal. In light of the foregoing actions, the Board finds that the undersigned VLJ sufficiently explained the issue on appeal and suggested additional evidence that may be submitted in support of the appeal at the Board hearing. This claim was previously denied by the Board in a November 2010 decision, which the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In July 2011, the Veteran's attorney and the VA General Counsel (parties) submitted a Joint Motion for Remand (Joint Motion) requesting that the Board's decision be vacated and remanded for readjudication. The parties agreed to the Joint Motion that the Board had provided inadequate reasons and bases regarding the adequacy of the September 2007 VA medical examination report and March 2010 addendum by failing to address whether the examiner provided sufficient rationale in determining whether the Veteran's COPD was related to smoking. In a July 2011 Order, the Court granted the motion and remanded the case to the Board for further appellate review. The case then returned to the Board following the Court's Order. In consideration of the Joint Motion, the Board remanded the issue on appeal in December 2011 in order to obtain a supplemental medical opinion from the VA medical examiner who conducted the September 2007 VA medical examination and provided the March 2010 addendum, followed by readjudication of the claim. As the ordered development has been accomplished, the Board finds that there has been compliance with the December 2011 Remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). FINDINGS OF FACT 1. The Veteran was hospitalized and treated for bilateral bronchial pneumonia during ACDUTRA service. 2. The Veteran's currently diagnosed COPD first manifested many years after his period of ACDUTRA service and active service and is not causally or etiologically related to ACDUTRA or active service, to include bronchial pneumonia. 3. The Veteran's current COPD is attributable to his history of tobacco abuse. CONCLUSION OF LAW Residuals of pneumonia, to include COPD, were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the October 2003 notice letter sent prior to the initial denial of the claim, the RO apprised the Veteran of the information and evidence necessary to substantiate the claim, which information and evidence that he was to provide, and which information and evidence that VA would attempt to obtain on his behalf. In this regard, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. Although the RO did not address how VA determines the disability rating and effective date once service connection is established in the October 2003 notice letter, the notice error has been cured. The Veteran was provided with notice regarding how the disability rating and effective date are assigned once service connection is established in the May 2007 corrective notice letter sent pursuant to the Board's April 2007 Remand order and the claim was subsequently readjudicated. For these reasons, the Board finds that the October 2003 and May 2007 notice letters collectively satisfied VCAA notice requirements with respect to the claim and no further notice is needed. Regarding VA's duty to assist in claims development, the Board notes that the claims file contains all available evidence pertinent to the claim. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of his responsibility to provide VA with any treatment records pertinent to the claim and the record contains sufficient evidence to make a decision on the claim. Pertinent post-service treatment records adequately identified as relevant to the Veteran's claim have been obtained or otherwise submitted and are associated with the record. There are additional treatment records found in the Veteran's Virtual VA file, which were considered by the Agency of Original Jurisdiction (AOJ) in the first instance. As the Veteran is shown to be in receipt of social security retirement benefits, rather than disability benefits, no request for records from the Social Security Administration has been made or is necessary. See September 2005 Deferred Rating Decision (noting that retirement benefits are received). The Veteran was afforded with a medical examination in connection with the claim in September 2007, and addendum reports were obtained in March 2010, April 2012, and June 2012. The VA medical examiner has interviewed the Veteran and considered the Veteran's treatment for pneumonia in service, the Veteran's report of respiratory symptoms and treatment since service, and any related functional impairment believed to be related thereto. The VA medical examiner has also reviewed the claims file, and conducted a thorough physical examination, to include x-rays and pulmonary function tests. After considering the relevant medical history and physical findings shown on examination, the VA medical examiner provided a medical opinion regarding the likelihood that the Veteran's currently diagnosed COPD was causally related to the Veteran's pneumonia during ACDUTRA service. The VA medical examiner had sufficient facts and data on which to base a medical opinion, and the medical opinion was supported by adequate rationale. For these reasons, the Board finds that the medical examination provided and medical opinion obtained are adequate. No further medical examination or medical opinion is needed. Neither the Veteran nor the representative has made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in the appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. In view of the foregoing, the Board will proceed with appellate review. Service Connection Analysis It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). The Board has thoroughly reviewed all of the evidence in this case. The analysis below focuses on the relevant evidence and on what this evidence shows, or fails to show, on the claim. 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). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is diagnosed with COPD. COPD is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) is not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Active military service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d). Presumptive periods for service connection do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The Veteran contends that he currently suffers from residuals of the pneumonia for which he was treated during ACDUTRA service. At the Board hearing, the Veteran testified that his lungs filled up with fluid and it took longer for him to recover from a cold since being treated for pneumonia in 1961. See December 2006 Board hearing transcript, page 5. He also testified that he had been treated for pulmonary disease by his family physician since service separation. The Veteran denies having suffered from pneumonia prior to ACDUTRA service or having smoked cigarettes prior to service. See the July 1999 and March 2005 statements from the Veteran. The Veteran further asserts that pneumonia during ACDUTRA service caused scarring on the lungs and that his chronic COPD was caused or aggravated by the scar tissue. See December 2004 statement from the Veteran. At the outset, the Board notes that there is ample evidence of record showing that the Veteran is currently diagnosed with COPD. In the June 2012 VA addendum report, the September 2007 VA medical examiner noted that the Veteran had mild COPD. Also, an April 2012 VA pulmonary note shows that the Veteran's pulmonary function tests results (i.e., FV curve) reflected a COPD pattern, and a July 2011 VA hematology and oncology note includes an assessment of probable early COPD. Therefore, in consideration thereof, the Board finds that the presence of current COPD is not in dispute. The Board also notes that the service treatment records show that the Veteran was hospitalized and treated for bilateral bronchial pneumonia from March 1961 to June 1961, which was during his period of ACDUTRA service. The hospital narrative summary reveals that the Veteran had a sore throat with hoarseness for two weeks before admission, developed gradual onset of fever and occasional chill for which he was treated symptomatically in the dispensary one week before admission, and developed some diarrhea and vomiting three days before admission. Throughout the course of hospitalization, x-rays showed very gradual but complete clearing of the pneumonia without residuals. On the last day of hospitalization, a few rhonchi were heard over both bases without rales or wheezes. The Veteran was discharged to duty in June 1961. Upon review of all of the lay and medical evidence of record, the weight of the evidence is against finding that the Veteran's treatment for pneumonia in service has resulted in any current respiratory disability, to include COPD. Approximately two months after the Veteran's hospitalization for pneumonia, he completed the August 1961 report of medical history and, in pertinent part, checked "Yes" when asked if he then had or ever had had shortness of breath. The Veteran also noted that he had been treated for pneumonia during ACDUTRA service. However, in the portion of the report designated for physician's summary and elaboration of all pertinent data, the service medical examiner wrote that no residual disability was shown. Also, the Veteran's lungs and chest were clinically evaluated as normal at the August 1961 examination. On the Statement of Medical Condition completed three days later, the Veteran affirmed that there had been no change in his medical condition since the August 1961 service medical examination. After the Veteran's period of ACDUTRA service, he underwent a chest x-ray in September 1961, which showed a slight increase in the bronchovascular markings in the right upper lobe; however, the remainder of the examination was within normal limits. When the Veteran subsequently underwent medical examination at the time of his release from active duty in June 1962, the Veteran's lungs and chest were clinically evaluated as normal and the chest x-ray was negative. Approximately one month later, in July 1962, the Veteran affirmed that there had been no change in his medical condition since the June 1962 service separation examination. Also, the earliest evidence of respiratory problems after service is shown in December 1987, approximately 26 years after ACDUTRA service and 25 years after active duty. At that time, the Veteran complained of persistent hoarseness and chronic cough and his exposure to industrial fumes at work, as well as his 15 year history of tobacco use, were noted. The treating medical provider (Dr. J.M.J.) specifically wrote that the redness in the Veteran's posterior pharynx was probably due to smoking. The Veteran made no mention of his period of ACDUTRA service or prior treatment for pneumonia, and the Veteran's smoking history as reported at that time began many years after service separation (i.e. approximately in 1972). It was not until December 1993, approximately 31 years after ACDUTRA service, that the Veteran received the first diagnosis of acute bronchitis. When COPD was diagnosed in July 2003, the Veteran first mentioned his history of hospitalization in service for pneumonia to his treating medical provider. This was approximately 42 years after ACDUTRA service. See July 2003 private treatment record. Thus, while the Veteran has reported that his lungs filled up with fluid since being treated for pneumonia in service and made it difficult for him to recover from colds, the statement is outweighed by other, more credible evidence of record. Although the Veteran was treated for pneumonia in service, the Veteran's chest and lungs were clinically evaluated as normal and he had a negative chest x-ray at the June 1962 service separation examination. Also, the Veteran made no mention of service or having previously been treated for pneumonia when seeking medical treatment for respiratory problems in 1987. Instead, the Veteran reported a 15 year history of tobacco use and exposure to industrial fumes at that time. As the Veteran would likely have reported having continued respiratory problems after having been treated for pneumonia during ACDUTRA service when seeking medical treatment for respiratory problems after service, the fact that he made no mention of in-service pneumonia to his treating medical provider until after having filed a claim with VA for disability compensation benefits weighs against his credibility. The Board finds the Veteran's statements to his treating medical provider many years before filing his original service connection claim for a respiratory disability in 1999, together with the evidence showing no residual disability due to pneumonia at the June 1962 service separation examination, to be far more credible and of greater probative value than the more recent assertion, which is more likely to have been influenced by the desire for monetary gain. The Board further finds that the weight of the evidence is against finding a causal or etiological relationship between COPD that developed years after ACDUTRA service and ACDUTRA service. When the Veteran underwent a VA examination in September 2007, the VA medical examiner opined that the Veteran had very mild diffuse airways obstruction, likely smoking related, but could also be due to mild asthma. He also stated that the residual basilar changes on the Veteran's chest x-rays may be related to prior pneumonia. In a March 2010 addendum, the VA medical examiner opined that he did not feel that the Veteran had significant residual from prior pneumonia. The VA medical examiner noted that he did not feel that the Veteran's COPD, though mild, could be attributed to pneumonia and it was much more likely to be related to cigarette smoking. Pursuant to the Board's December 2011 Remand order, a supplemental medical opinion was obtained from the same VA medical examiner that performed the August 2007 VA medical examination and provided the March 2010 addendum. Collectively, in April 2012 and June 2012 addendum reports, the VA medical examiner provided additional rationale for the prior medical opinion that the Veteran's smoking rather than prior pneumonia was the likely cause of his mild COPD. In the April 2012 addendum report, the VA medical examiner wrote that he still felt that the Veteran's August 2007 pulmonary function test results were normal. The VA medical examiner also re-reviewed the claims file, considered the Veteran's in-service hospitalization for pneumonia and history of smoking, and noted that a July 2011 chest x-ray showed that the lungs were "clear". The examiner further noted that the Veteran had normal heart sounds, no edema, distant symmetric breath sounds, no rales or wheezes, but forced expiration was prolonged. The noted impression was mild diffuse airway disease that had worsened since 2007 and during which time the Veteran continued to smoke. In the June 2012 addendum report, the VA medical examiner further explained that he had practiced pulmonary medicine for 40 years and had never seen any patient whose diagnosis of COPD was attributed to prior pneumonia as an adult by any pulmonologist in the absence of bronchiectasis. The VA medical examiner noted that there was no mention of pneumonia, except as a child under the age of two, as the possible cause of airflow obstruction later in life in the Fishman's textbook of pulmonary diseases and disorders. The VA medical examiner also noted that a literature search in Pubmed, with COPD and pneumonia in the title of any paper, showed no papers attributing COPD to previous pneumonia. The VA examiner further noted that these facts contrasted with the vast majority of patients diagnosed with COPD who are prior cigarette smokers support the reasonable conclusion that smoking was more likely than not the cause of the Veteran's airway disease. The VA medical examiner's opinion was based on a thorough review of the Veteran's relevant medical history and complaints as documented in the claims folder and articulated by the Veteran at the examination, the findings demonstrated at examination, including on pulmonary function tests, experience as a pulmonologist for 40 years, and researched medical principles. The VA medical examiner has provided adequate rationale for the medical opinion. While the VA medical examiner did not specifically use the "as likely as not" language when providing the medical opinion, the Board finds that such error does not render the medical opinion inadequate. After reviewing the rationale provided by the VA medical examiner, the Board concludes that the VA medical examiner concluded that there was a less than 50 percent probability that the Veteran's COPD is due to prior pneumonia. The VA medical examiner specifically stated that he had "never" seen a patient with COPD attributable to prior pneumonia as an adult by another pulmonologist in the absence of bronchiectasis. He also stated that there was "no mention of pneumonia" as the possible cause of airflow obstruction later in life in a medical textbook for pulmonary diseases and disorders except for in children under the age of two. He further stated that a search for medical literature attributing COPD to prior pneumonia yielded no results. Thus, when evaluating the VA medical examiner's opinion in its full context, the Board concludes that the medical examiner properly considered the "as likely as not" standard in providing the medical opinion although the language was not specifically utilized. For these reasons, the Board finds the medical opinion to be adequate and affords it great probative value. Although the Board has considered a July 2003 informal note from the Veteran's private medical provider, Dr. J.M.J., wherein the physician wrote that the Veteran's July 2003 chest x-rays showed fibrotic scarring bilaterally due to pneumonia during ACDUTRA service, the Board affords the medical opinion significantly less probative value than the medical opinion by the VA medical examiner. In a July 2003 private treatment record dated the same day, Dr. J.M.J. wrote that the Veteran's COPD was secondary to his tobacco abuse history after considering the Veteran's reported history of pneumonia and related hospitalization during ACDUTRA service. The medical opinion in the private treatment record appears to contradict the medical opinion written on the informal note, which was reportedly provided to the Veteran for the purpose of providing support for his claim with VA. The Board finds that the July 2003 informal note from Dr. J.M.J. has little to no probative value and is outweighed by the VA medical opinion, which identifies no residuals of pneumonia. At the Board hearing and in statements submitted during the course of this appeal, the Veteran reported that he began smoking during military service. However, the statement is inconsistent with an earlier statement made by the Veteran. As stated above, when seeking medical treatment in December 1987, the Veteran reported a history of tobacco use for 15 years, which indicates that the Veteran began smoking in 1972 (i.e., approximately ten years after service). As the Veteran was likely to have been truthful when seeking medical treatment many years before filing a claim with VA for disability benefits, the Board finds the statement to be particularly credible and of greater probative value than the Veteran's assertion that tobacco abuse began in service. Moreover, for claims filed after June 9, 1998 such as this claim, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C.A. §§ 1103(a), 1131 (2012). Therefore, this assertion is against the claim for service connection as it suggests a nonservice-related etiology for COPD. Although the Veteran has asserted that he has experienced physical signs and symptoms of a respiratory illness since service, he is a lay person and does not have the requisite medical expertise to be able to render a competent opinion regarding the cause of the currently diagnosed COPD or the symptoms attributable thereto. The etiology of the Veteran's COPD is a complex etiological question that requires knowledge of multiple factors that could cause respiratory disorders, and COPD is a disorder diagnosed primarily on clinical findings and physiological testing that the Veteran cannot undertake on himself. Thus, while the Veteran is competent to relate symptoms that he experienced at any time, he is not competent to attribute the symptoms to the diagnosis of COPD or link COPD to service. Moreover, as explained above, the Veteran's assertion that the respiratory symptomatology has existed since being treated for pneumonia in service is inconsistent with, and far outweighed by, other, more credible evidence of record. The more probative medical opinion evidence also weighs against the claim. Thus, the Board finds that the credible and probative evidence of record shows that the Veteran's COPD manifested years after service separation and is not causally or etiologically related to service; therefore, a preponderance of the evidence weighs against the claim and service connection is not warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for residuals of pneumonia, to COPD, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs