Citation Nr: 1318691 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 10-24 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from June 1951 to May 1955. This matter initially came to the Board of Veteran's Appeals on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Also in this decision the RO denied entitlement to service connection for asbestos exposure. The Veteran perfected an appeal as to both issues; however, the RO subsequently granted service connection for asbestosis in October 2011. Thus, as this represents a full grant of benefits sought with respect to this issue, it is no longer on appeal and will not be further addressed. See AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to service connection for COPD was previously before the Board in December 2011, August 2012 and November 2012 at which times the case was remanded for additional development. The development included obtaining clarification regarding a diagnosis of COPD and, if present, the etiology of such disability to include a possible nexus on a direct basis to service and as secondary to service-connected asbestosis. The development also included obtaining any outstanding medical records. There has been substantial compliance with the Board's remand directives by way of August 2012 and January 2013 VA addendum opinions, and requests for VA records in August 2012, September 2012 and February 2013. Stegall v. West, 11 Vet. App. 268 (1998). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with this appeal. The electronic file contains additional relevant treatment records pertaining to this appeal which have been reviewed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The weight of medical evidence shows that the Veteran does not have COPD and has not had it at any time since service. CONCLUSION OF LAW COPD was not incurred in or aggravated by service nor is such disability proximately related to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). 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 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 United States Court of Appeals for Veterans Claims (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. In the present appeal, the appellant was provided with initial notice of the VCAA in May 2009, which was prior to the March 2010 decision on appeal. Therefore, the express requirements set out by the Court in Pelegrini have been satisfied with respect to these claims. VA has fulfilled its duty to notify the appellant in this case. In the May 2009 letter, the RO informed the claimant of the applicable laws and regulations, the evidence needed to substantiate the claim being decided herein, and which party was responsible for obtaining the evidence. 38 C.F.R. § 3.159; see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); McKnight v. Gober, 131 F. 3d 1483, 1485 (Fed. Cir. 1997). Thus, the Board finds that the notice required by the VCAA and implementing regulations was furnished to the claimant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. During the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 471 (2006), which held that the VCAA 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. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, supra. With respect to the claim being decided herein, the Board finds that the appellant is not prejudiced by a decision as the Veteran was provided with notice of the disability rating and effective date elements in the May 2009 letter. The Board also finds that all necessary assistance has been provided to the appellant with respect to the claim being decided herein. The RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate this claim, including requesting information from the appellant regarding pertinent medical treatment he may have received and obtaining such records, and affording him a VA examination during the appeal period. In regard to VA examinations, the Veteran was afforded a pertinent VA examination in February 2011 and the issuance of two addendum opinions, in August 2012 and February 2013. Although the Board explained in the November 2012 remand that this addendum by itself was insufficient for purposes of adjudicating the claim at that time, the Board finds that the August 2012 addendum together with the February 2013 addendum provide sufficient detail for the Board to make a decision and the reports are deemed adequate with respect to this claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The appellant was also provided with the opportunity to attend a Board Hearing which he declined. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in his claims being decided herein and that adjudication of these claims at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet, App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Facts The Veteran's service treatment records do not show respiratory complaints or treatment. Chest x-rays performed in June 1951, December 1951, June 1952, and October 1952 were negative. The April 1955 separation examination report shows a normal clinical evaluation of the lungs and chest. Chest x-rays performed in April 1955 were negative. On file is a March 2004 private chest x-ray report containing an impression of bilateral calcified pleural plaques consistent with asbestosis. Treatment records from Dr. Chang beginning in March 2005 reflect diagnoses of COPD. The March 2005 treatment record contains the Veteran's report of a one week history of cough productive of thick yellow sputum. He also reported having some mild shortness of breath. He said he had chronic shortness of breath with exertion for more than a year, but did not mention it earlier for fear that he may have COPD. He reported a history of smoking in the past, but said he stopped smoking after his first myocardial infarction. This record notes that "[Testing] in the office shows an FVC of 2.661 which is 62% of predicted, FEV1 of 2.1 which is 59% of predicted, and FEV1/FVC ratio of 75%. This is consistent with a moderate obstruction." The impression was COPD-newly diagnosed. Dr. Chang reported that he was starting the Veteran on Advair 250/50 and Combivent. Private chest x-rays were performed in January 2006 due to a history of shortness of breath. Findings revealed no pleural effusions and the appearance of some probable pleural thickening seen in the lateral aspect of both the right and left chest that was likely present on the prior exam and unchanged. A January 2007 private chest x-ray report contains a history of asbestosis exposure. The conclusion was extensive asbestos-related pleural disease. A computed tomography (CT) scan of the Veteran's chest in January 2007 revealed pleural calcifications most likely related to previous asbestos exposure. Also noted was probable scarring in the superior segment right lower lobe and left lingula. In May 2009, the Veteran filed a claim for service connection for COPD asserting that he was diagnosed with the disability three years earlier. He said he was given two prescription inhalers. He also said that while being tested for breathing problems he was told that x-ray findings showed that he had been exposed to asbestos. A private chest x-ray report in September 2009 reveals findings consistent with the Veteran's history of asbestosis. A private chest x-ray report in October 2009 was noted to be normal, with no change from the last x-ray. Various VA outpatient records in 2009 and 2010 list COPD as an active problem. An April 2010 treatment record from Dr. Chang notes that the Veteran still had chronic shortness of breath from his asbestosis. The assessment was asbestosis, worsened. A May 2010 private chest x-ray report contains the Veteran's report of right upper quadrant chest pain. The conclusion was changes suggestive of asbestos-related pleural disease with calcified pleural plaques likely present, bilaterally. In a "To whom it may concern" letter dated in May 2010, Dr. Chang reported that the Veteran had a history of asbestosis from exposure in the military and had documented changes consistent with asbestosis by multiple chest x-rays. He said he felt this was contributing to the Veteran's current symptoms of chronic cough and shortness of breath. A May 2010 treatment record from Dr. Chang shows that in regard to asbestosis, the Veteran continued to have shortness of breath and wheezing. A June 2010 private treatment record contains an impression of asbestosis - worsened. An October 2010 VA outpatient record shows that the Veteran was offered a PFT and chest x-ray, but declined indicating that pulmonary function testing had been performed by his private physician. At a VA respiratory examination in February 2011, the Veteran reported significant dyspnea on exertion. He also reported occasional productive cough and denied any hemoptysis. He reportedly quit smoking in 2000. He denied any hospitalizations for respiratory problems and denied using oxygen. The examiner indicated that he did not have the Veteran's claims file to review. He ordered pulmonary function tests and a chest CT scan. VA chest CT scan findings in February 2011 showed some fibrotic changes in the lower lobes bilaterally. Also shown were partially calcified pleural plaques bilaterally which could be seen with asbestos exposure. Pulmonary function tests performed by VA in February 2011 were normal with mild decrease in diffusion capacity. In an August 2012 addendum to the February 2011 VA examination report, the examiner opined that the Veteran did not appear to have a true diagnosis of COPD, but rather just asbestosis that had been mislabeled in the past as COPD. He further opined that COPD was less likely than not proximately due to, the result of or aggravated by the Veteran's service-connected condition for the same reason that the Veteran did not appear to have a true diagnosis of COPD, but rather just asbestosis that has been mislabeled in the past as COPD. The examiner based her decision on her review of the Veteran's claims file and "CPRS" records, to include the Veteran's pulmonary function test report and chest CT scan report. The examiner stated that all of the Veteran's pulmonary findings could be related to asbestosis. Various VA outpatient records in 2011 and 2012 list COPD as an active problem. The examiner in August 2012 issued an addendum in February 2013 reporting that the Veteran's pulmonary function test in February 2011 was normal with mild decrease in diffusion capacity. She explained that normal pulmonary function tests suggest that the Veteran does not have COPD. She said the mildly decreased diffusion is likely related to his service-connected asbestosis, but based on his pulmonary function tests, he did not appear to have a diagnosis of COPD. III. Law and Discussion Initially, the Board notes the Veteran does not assert that COPD is a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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 also 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. There are special rules with regard to diseases that have been designated as "chronic" in 3.309(a). For those diseases, if they are "shown as such in service," subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). In this case, the Veteran does not claim entitlement to service connection for disability due to a disease identified as chronic in the relevant statute and regulation; 38 C.F.R. § 3.303(b) is therefore inapplicable. Service connection may be granted on a secondary basis where a disability is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Additionally, any increase (aggravation) in severity of a non-service connected disease or injury that is proximately due to, or the result of, a service connected disability, will be service connected. 38 C.F.R. § 3.310(b); see also Allen v. Brown,7 Vet. App. 439, 448 (1995). VA has amended 3.310, effective October 10, 2006, to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established prior to any aggravation. 38 C.F.R. § 3.310(b). Regardless of the theory under which service connection is claimed or analyzed, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155F. 3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). In the instant case, there is both positive and negative evidence on the question of whether the Veteran has the disability of COPD that he claims. The positive evidence includes office treatment records from the Veteran's treating internal medicine physician, Dr. Chang, reflecting intermittent diagnoses of COPD from 2005 to 2011. These records show the first notation of COPD on a March 2005 office record showing COPD-newly diagnosed. Medication consistent with this diagnosis, Advair and Combivent, was prescribed at that time. This record also suggests that PFT tests were performed by someone in the office with findings consistent with moderate obstruction; however, the actual PFT report is not on file. There are also various VA outpatient records from September 2009 to September 2012 that show COPD as an active problem. These records include an October 2010 record showing that the Veteran was offered a PFT and chest x-ray, but declined indicating that pulmonary function testing had been performed by his private physician. The negative evidence includes multiple chest x-ray reports dated from 2004 through 2010 all of which show findings consistent with asbestosis, but no indication of COPD. Similarly, a chest CT scan performed in 2011 was found to be consistent with asbestos exposure, but again with no indication of findings consistent with COPD. Also, PFT findings in February 2011 were normal with mild decrease in diffusion capacity(a copy of which is on file). In February 2013, the VA examiner explained that the normal pulmonary function tests suggest that the Veteran does not have COPD and that the diagnosis of asbestosis had been mislabeled as COPD. She based her opinion on her review of all the evidence of record, to include the multiple chest-x-ray reports, the February 2011 CT scan report and February 2011 PFT findings. There is no contrary medical opinion on file. In light of the foregoing, the Board finds that the most probative evidence weighs against a finding that the criteria have been met for a diagnosis of COPD. The Board attaches greater probative weight to the reasoned medical opinion of the VA examiner in August 2012 and February 2013 rather than the intermittent diagnoses of COPD recorded by his private internal medicine physician, Dr. Chang, and listed on VA outpatient records. Although Dr. Chang's March 2005 treatment record suggests that PFTs were conducted at that time showing moderate obstruction, this test report is not on file despite multiple requests to Dr. Chang for all of his records. Moreover, the February 2011 pulmonary function test report which is on file shows normal results with mild decrease in diffusion capacity. This test result, in addition to the other diagnostic tests of record and treatment records, were interpreted by the VA examiner in August 2012 and February 2013 as not showing COPD. As noted, there is no contrary reasoned medical opinion of record. While Dr. Chang did render an opinion in a May 2010 "To whom it may Concern" letter, he stated only that the Veteran had documented changes consistent with asbestosis by multiple chest x-rays. He did not mention COPD. As for the VA outpatient records that reflect COPD as an active problem, this does not appear to be based on an evaluation or from any diagnostic tests. This is evident in light of the October 2010 VA outpatient record showing that the Veteran declined to undergo a PFT and chest x-rays stating pulmonary function testing had been performed by his private physician. The Board has considered the Veteran's statements that he has COPD due to exposure to asbestos. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the presence of disability even where not corroborated by contemporaneous medical evidence). However, the question as to whether the Veteran meets the criteria for a diagnosis of COPD requires specialized training for a determination and is not susceptible of lay opinion. The Veteran's statements alone cannot be accepted as competent medical evidence in this regard. Based on the foregoing, the Board finds that the weight of evidence shows that the Veteran does not have COPD. As such, there is no basis to consider service connection for COPD on a secondary basis, that is, as proximately related to or aggravated by his service-connected asbestosis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable and the claim for service connection for COPD must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for COPD is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs