Citation Nr: 1316288 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-07 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for diabetes mellitus, type II (DM). 3. Entitlement to service connection for cardiovascular disability, to include as secondary to DM. 4. Entitlement to service connection for hypertension, to include as secondary to DM. 5. Entitlement to service connection for erectile dysfunction, to include as secondary to DM. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION 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 Veteran served on active duty from June 1969 to July 1973. In July 2010, the Board of Veterans' Appeals (Board) remanded the issues listed on the title page, as well as the issues of service connection for a bilateral knee disability and a right shoulder disability, to the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO) for additional private treatment reports and for VA examinations with nexus opinions. Attempts to obtain additional private treatment reports were made, and VA examinations with nexus opinions, to include on the issue of service connection for COPD, were obtained in September 2010. A July 2011 rating decision granted service connection for degenerative joint disease of the right shoulder and assigned a 20 percent rating effective September 17, 2007; a May 2012 rating decision granted service connection for disability of each knee, with a separate 10 percent rating assigned for each knee effective September 17, 2007. As attempts were made to obtain additional private treatment reports and a VA evaluation of COPD with nexus opinion was obtained in September 2010 in response to the Board remand, there has been substantial compliance with the July 2010 remand instructions with respect to the issue of entitlement to service connection for COPD. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). The Veteran testified at a videoconference hearing before the undersigned sitting at the RO in March 2010, and a transcript of the hearing is of record. The issues of entitlement to service connection for DM, cardiovascular disability, hypertension, and erectile dysfunction are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have COPD that is causally related to his active military service. CONCLUSION OF LAW COPD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in October 2007, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. In compliance with the duty to notify, the Veteran was informed in the October 2007 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. Additional private evidence was subsequently added to the claims file after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA evaluation with nexus opinion involving the Veteran's COPD was obtained in September 2010. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA opinion obtained in this case is adequate, as they are based on a reading of relevant medical records in the Veteran's claims files and physical examination findings. The opinions considered all of the pertinent evidence of record, to include the Veteran's medical records and statements, and provided a rationale for the opinion stated. There is adequate medical evidence of record to make a determination on the issue decided in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on this issue has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue decided herein. The Veteran has been given ample opportunity to present evidence and argument in support of his claim, including at his March 2010 videoconference hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). The Board has reviewed the record in regard to whether the Veteran was afforded his due process rights in the development of evidence through testimony. At the March 2010 videoconference hearing, the Veteran was afforded an extensive opportunity to present testimony, evidence, and argument. The transcript reveals an appropriate colloquy between the Veteran and the undersigned, in accordance with Stuckey v. West, 13 Vet. App. 163 (1999) and Constantino v. West, 12 Vet. App. 517 (1999) (relative to the duty of hearing officers to suggest the submission of favorable evidence). The issue of service connection for COPD was addressed, and the Veteran was asked to provide testimony on how the disorder was incurred. Analysis of the Claim The Veteran seeks service connection for COPD. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's service treatment records reveal that medical history and physical examination reports dated in June and October 1969 do not contain any complaints or findings of a respiratory disability. A hospital admission chest X-ray in September 1970 was normal. Upper respiratory infections were noted in March and April 1973. The Veteran complained in May 1973 of chest pain and trouble breathing; chest X-rays were normal. The impression was right chest pain of unknown etiology. His June 1973 separation physical examination report does not reveal any pertinent disorder. A July 2002 chest X-ray report from Hilldale Community Health Center was reported to contain findings consistent with COPD. January 2003 records from the Heart Center reveal that the Veteran smoked five packs of cigarettes a day. The assessments were chest pain, atypical, sounds musculoskeletal in nature; ischemic heart disease, status post angioplasty; smoker; and hyperlipidemia, controlled. According to a May 2003 Social Security Administration decision, the Veteran was awarded disability benefits effective November 5, 2002 for osteoarthritis and allied disorders and for COPD. The assessments on VA treatment reports for July 2008 include COPD, coronary artery disease, DM, and erectile dysfunction. The Veteran testified at his videoconference hearing in March 2010 that he had shortness of breath in service and that COPD was diagnosed ten years ago. In response to the July 2010 Board remand, VA examinations, which included review of the claims files, were conducted in September 2010. The Veteran said that he had had shortness of breath since 1970 and that he had been diagnosed with COPD in 1998. A chest X-ray did not show any acute disease. The diagnosis was mild to moderate COPD. After review of the claims files and examination of the Veteran, the examiner concluded that it was less likely as not that the Veteran's COPD was causally related to service because COPD is associated with an increase in dyspnea, an increase in coughing, and/or an increase in sputum, none of which is shown in the service treatment reports. Also of record are VA treatment reports in Virtual VA dated through May 2012, which do not reveal any additional evidence relevant to the issue of service connection for COPD. The above medical evidence does not show that the Veteran's current COPD is causally related to service. Although he complained in May 1973 of chest pain and trouble breathing, chest X-rays in May 1973 were normal and no abnormality was reported on separation physical examination in June 1973. The initial post-service notation of a respiratory problem was not until July 2002, which is 29 years after service discharge, when a chest X-ray showed findings consistent with COPD. Although the Veteran testified that COPD was diagnosed in approximately 2000 and he said on evaluation in September 2010 that COPD was diagnosed in 1998, this is still many years after service discharge. Additionally, it was noted in January 2003 that the Veteran was a heavy smoker. The only nexus opinion on file, in September 2010, is against the claim. This opinion, which is based on a review of the claims files and examination of the Veteran, includes the supporting rationale that none of the normal symptoms of COPD, such as an increase in sputum, was shown in service. Consequently, the Board finds that service connection for COPD is not warranted. The hearing testimony and lay statements on file have been taken into consideration in this decision. Although the Veteran is competent to report his subjective problems, such as trouble breathing, he is not competent to report that he has COPD due to service. Laypersons are not competent to provide evidence in certain medical situations, such as in cases involving the etiology of COPD. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the service connected claim denied above, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for COPD is denied. REMAND The July 2010 Board remand directed the RO to obtain an opinion on whether the Veteran's current DM is related to service and directed the examiner to note in providing the opinion the following evidence: the September 19 to 30, 1970 hospital report containing a two hour postprandial blood sugar reading of 116 milligrams per cent, the December 1972 entry indicating that the Veteran had boils on his legs and had a normal (unintelligible) four months ago to r/o (rule out) DM, and the October 2009 VA medical report in which the physician referred to the medical evidence and concluded that it was much more likely than not that the Veteran was developing glucose intolerance or pre-diabetes while on active duty. The examiner provided an opinion in September 2010 that it was less likely as not that the Veteran's DM is related to service because no diagnosis of DM is seen and because even though the examiner did not know the cause of the Veteran's boils, DM was ruled out by blood work. The Board finds this opinion inadequate because it does not discuss the September 1970 hospital report and the October 2009 favorable opinion. The Courts have held that RO compliance with a remand is not discretionary, and that if the RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). As the above-noted opinion does not discuss all of the relevant evidence, including a medical opinion in favor of the claim, the RO has not adequately complied with the terms of the remand. Id. Consequently, another remand of this case for the additional development is warranted. The Board would also note that the October 2009 medical opinion referred to in the July 2010 remand does not appear to currently be on file. 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.) 1. All relevant VA treatment reports, to include the October 2009 medical opinion referred to above and any VA treatment records dated since May 2012, which is the date of the most recent medical evidence of record, must be added to the record. All attempts to obtain the records must be documented in the claims file. These efforts must continue until it is determined that the records are unavailable or that further attempts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(2) (2012). If it is found that relevant records are not available, a formal Memorandum of Unavailability must be prepared for inclusion in the claims folder. 2. Thereafter, the AMC/RO must arrange for the VA examiner that provided the opinion in September 2010 to provide an addendum to the previous opinion. The claims files and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims files and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. After a review of the evidence of record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that the Veteran's current DM had its onset in or is causally or etiologically related to his symptomatology in service as opposed to it being more likely due to some other factor or factors. The opinion must include a discussion of the September 1970 hospital report containing a two hour postprandial blood sugar reading of 116 milligrams per cent; the December 1972 notation that the Veteran had a normal (unintelligible) four months ago to rule out DM; and the October 2009 VA conclusion that, given the medical evidence on file and the Veteran's report that he was placed on diabetic medication in 1973, it was much more likely than not that that the Veteran was developing glucose intolerance or pre-diabetes in service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. If the examiner who provided the opinion in September 2010 is unavailable, the AMC/RO must obtain the requested opinion from another VA examiner. If it is determined that a current examination is needed in order to provide the requested opinion, an examination must be conducted. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The AMC/RO will notify the Veteran of his responsibility to report for any examination scheduled and the consequences for failure to report for an examination without good cause. See 38 C.F.R. §§ 3.158, 3.655 (2012). 4. If and only if service connection for DM is granted, the Veteran will then be scheduled for VA examination(s) to evaluate his claims for heart-related disability, hypertension, and erective dysfunction as secondary to DM. The claims files and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims files and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on a review of the record and the examination findings, the examiner will provide an opinion on whether the Veteran currently has a heart-related disability, hypertension, and/or erectile dysfunction proximately caused by or proximately aggravated by his DM. A rationale for each opinion needs to be provided with a discussion of the relevant facts and medical principles. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) 4. After the above has been completed, the RO/AMC will readjudicate the claims for service connection for DM, cardiovascular disease, hypertension, and erectile dysfunction listed on the title page. If any benefit sought on appeal remains denied, the Veteran and his representative will be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefit, to include a summary of the evidence received, and any evidence not received, and all applicable laws and regulations considered pertinent to the issues currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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 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). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs