Citation Nr: 1315228 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 05-27 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for disability manifested by pulmonary insufficiency. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran had active duty service from December 1953 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in New Orleans, Louisiana. In May 2009, the Board remanded the issue on appeal for additional development. In July 2009, the Veteran withdrew a claim of service connection for a disorder manifested by vertigo with dizziness and nausea. Consequently, only the claim of service connection for disability manifested by pulmonary insufficiency will be addressed. A review of the Virtual VA paperless claims processing system shows that updated VA treatment records are of record. The RO considered these updated VA treatment records in the December 2012 Supplemental Statement of the Case. (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 A pulmonary disorder is not attributable to the Veteran's period of military service, including presumed herbicide exposure. CONCLUSION OF LAW The Veteran does not have a disability manifested by pulmonary insufficiency that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1116, 1131, 1154(b), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), has been in effect since November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision has been accomplished. Through October 2003 and July 2009 notice letters, the RO notified the Veteran and his representative of the information and evidence needed to substantiate the Veteran's claim of service connection. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). While notice for the elements of a disability rating and effective date were not furnished until after the issuance of the initially appealed rating decision, the appeal was subsequently readjudicated in the December 2012 Supplemental Statement of the Case. This course of corrective action fulfilled VA's notice requirements. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Board also finds that the October 2003 notice letter substantially satisfied the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In October 2003, the RO notified the Veteran that VA was responsible for obtaining records from any Federal agency and would make reasonable efforts to obtain evidence from non-Federal custodians. He was invited to submit any evidence in his possession. A remand for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist. The Veteran's service treatment records (STRs) and pertinent VA treatment records have been obtained and associated with the claims file. The Veteran was afforded an examination in February 2012 with an October 2012 addendum medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The record reflects substantial compliance with May 2009 Remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). A corrective notice letter was sent in July 2009 and requested that he identify all sources of treatment for his claim. The agency of original jurisdiction (AOJ) obtained a February 2012 VA pulmonary examination report with an October 2012 addendum medical opinion that addresses the salient questions in this case. The AOJ re-adjudicated the claim in December 2012. Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) have been satisfied. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. For chronic disabilities listed under 38 C.F.R. § 3.309(a), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Under 38 C.F.R. § 3.303(b), continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b)). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2002), 38 C.F.R. § 3.307(a)(6) (iii) (2012). The record shows that the Veteran had service during the requisite period in Vietnam, and he is therefore presumed to have been exposed to herbicides in service. See DD 214. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain listed diseases shall be service connected. Such diseases include respiratory cancers. See 38 U.S.C.A. § 1116 (West 2002), 38 C.F.R. § 3.309(e), Note 2 (2012). The Veteran has not been shown to have any type of respiratory cancer. However, regardless of whether a claimed disability is recognized under 38 U.S.C.A. § 1116 pertaining to herbicide agent exposure presumptive diseases, a Veteran is not precluded from presenting evidence that a claimed disability was due to or the result of the presumed herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although the Veteran is competent in certain situations to identify a simple condition such as dyspnea, he is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Service treatment records (STRs) do not show any complaints or findings for a pulmonary disorder. STRs, dated in August 1968, show that the Veteran had a negative chest X-ray following complaints about chest pain. On his Report of Medical History for separation in July 1973, the Veteran denied ever having tuberculosis, asthma, shortness of breath, chest pain, or chronic cough. Contemporaneous clinical examination did not show any abnormalities of the lung or chest. Chest X-ray was negative. In September 2003, the Veteran's private treating physician, Dr. F.M., stated that he was well familiar with the Veteran's medical history. He opined that it was at least as likely as not that the Veteran's pulmonary insufficiency was related to military service. He did not provide an explanation for his opinion. In his August 2005 substantive appeal, the Veteran reported that he had been diagnosed with emphysema and believed it was related to herbicide exposure in Vietnam. In January 2006, the Veteran underwent a VA general medical examination. He reported having a history of chronic obstructive pulmonary disease (COPD). Clinical examination showed a normal chest. Chest X-rays showed minimal chronic changes in the lung bases. The examiner diagnosed COPD. The Veteran had a VA pulmonary examination in February 2012. He complained about having mild dyspnea upon exertion. He could not walk more than 100 yards and often utilized a motorized wheelchair. He regularly used inhalants. Chest X-rays showed mild pulmonary scarring. Pulmonary function testing (PFT) confirmed decreased function. The examiner diagnosed COPD, but believed it was less likely related to service. She cited an absence of clinical evidence relating COPD to Agent Orange exposure. She suggested it was related to the Veteran's prior history of smoking. The most recent VA primary care clinic visit of record is from August 2012. The examiner noted a history of smoking. However, no pulmonary complaints or disorder was otherwise mentioned. The VA examiner provided an October 2012 addendum medical opinion. She reviewed the claims folder and opined that it was less likely that COPD had its onset in active service because STRs did not indicate any respiratory disorder was present. The Veteran did not have any complaints or treatment for a respiratory disorder during service. He denied having any respiratory type condition on his Report of Medical History for separation. However, he served in Vietnam within the requisite time period to be entitled to a presumption of herbicide exposure as a matter of law. See DD 214; 38 C.F.R. § 3.307(a)(6). At the VA examinations in January 2006 and February 2012, the Veteran received a COPD diagnosis. The threshold for showing a current disability is met. The remaining issue is whether the current COPD is traceable to military service, including Agent Orange exposure. The Veteran is competent to describe his respiratory symptoms. See Layno, 6 Vet. App. at 469; see Jandreau, 492 F.3d at 1377. However, determining whether his current respiratory disorder is related to service, including herbicide exposure approximately 40 years ago is a medical question. He is not shown to be a medical professional and is not competent to express an opinion on such an issue. See Woehlaert, 21 Vet. App. 456; see also Waters, 601 F.3d 1274. Thus, his assertions are not competent evidence to show a nexus to service and in this regard, have no probative value. Id; see Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. The competent medical evidence of a nexus is limited to Dr. F.M's September 2003 opinion and the February and October 2012 VA examiner's negative opinions. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). Dr. F.M. offered a positive opinion. However, he did not provide any explanation to support his opinion. Accordingly, the Board does not find it to be very helpful and consequently gives it less weight than the VA opinion that includes some explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The February and October 2012 medical opinions are plausible, consistent with the Veteran's tobacco use history, and uncontroverted by any additional medical opinion. The Board considers these VA medical opinions to be probative and weigh against the claim. Nieves-Rodriguez, 22 Vet. App. at 304; see also King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). In other words, the preponderance of the evidence is against finding a nexus to service, including presumed herbicide exposure. For the reasons stated above, a nexus has not been demonstrated. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Service connection for disability manifested by pulmonary insufficiency is not warranted. ORDER Service connection for a disability manifested by pulmonary insufficiency is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs