Citation Nr: 1319200 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 10-42 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION 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 1956 to June 1960. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2010 of a Department of Veterans Affairs (VA) Regional Office (RO). Where a Veteran claims service connection for a specific disorder, any disorder reasonably encompassed by the Veteran's claim must be considered. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue on appeal was previously characterized as service connection for COPD and has been re-characterized to include all respiratory disabilities. The issue was remanded by the Board in February 2013 for additional development. FINDING OF FACT A respiratory disability, to include COPD, is not related to service. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, to include COPD, have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. An October 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a May 2013 statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, private treatment records and VA examination report have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). This matter was most recently before the Board in February 2013, when the case was remanded to the RO via the Appeals Management Center (AMC) to afford the Veteran an additional VA examination. The Veteran was last afforded a VA examination in March 2013. All of the actions previously sought by the Board through its prior development requests have been completed as directed. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In May 2013, the Veteran, through his representative, argued that the Veteran's March 2013 VA examination was inadequate in that the examiner failed to discuss the presence, or absence, of any studies that specifically disputed a relationship between exposure to asbestos and COPD and did not discuss the combined effect, aggravation, of smoking and COPD. The examination is adequate. The examiner reviewed the Veteran's claims file in its entirety, examined the Veteran thoroughly and provided a cogent rationale for all opinions provided. The fact that the examiner did not supply the kind of negative evidence desired by the Veteran does not render the examination inadequate. As neither the Veteran's representative nor the Board is shown to have medical expertise, the examiner's medical expertise must be given deference. Finally, as there is no respiratory condition found at the time of service, and smoking is not a compensable disability; the question of aggravation does not apply to the facts of this case. The record does not reflect that this examination and opinion were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The Board, further, is cognizant of the fact that additional private treatment records were submitted after the Veteran's VA examination and that these records demonstrate bronchitis. However, these records also include the finding of the Veteran's private physician that that disability is related to allergies and the Veteran's home environment; the evidence does not indicate a relationship between bronchitis and service and a new VA examination is unnecessary and would only cause undue delay. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Additional treatment records have been added to the claims file. Subsequently, a supplemental statement of the case (SSOC) was issued in May 2013, which continued the previous denial. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. With asbestos-related claims, VA must determine whether military records demonstrate asbestos exposure during service, and, if so, determine whether there is a relationship between that exposure and the claimed disease. M21-1, Part IV, 7.21(d)(1) (October 3, 1997). Radiographic changes indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum. M21-1, Part IV, 7.21(a)(1) (October 3, 1997). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part IV, 7.21(c) (October 3, 1997). There is no evidence of any of these disorders or symptoms of record. Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, demolition of old buildings, carpentry and construction, manufacturing and servicing of friction products such as clutch facings and brake linings, manufacture and installations of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. M21-1, Part IV, 7.21(b)(1) (October 3, 1997). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. A Veteran's disability shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service if it resulted from injury or disease attributable to the use of tobacco products by a Veteran during active service. 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The Veteran asserts that exposure to asbestos, and paint and chemical fumes while serving as a boiler technician caused his respiratory disabilities. The Veteran is shown to have served as a boiler operator during his naval service. Service treatment records demonstrate normal lungs at the time of the Veteran's June 1956 enlistment examination. Records demonstrate treatment for a chest cold in August 1956. Normal lungs were reported in the Veteran's June 1960 separation report of medical examination. Post- service treatment records include a December 1983 private treatment note in which the Veteran is reported as having a one pack per day smoking history for twenty-seven years and noted that he quit smoking within six months. Private hospital notes reveal that, in April 2003, the Veteran reported to the emergency room for shortness of breath. Multiple related treatment reports note probable COPD with probable early bronchitis/pneumonia. A June 2006 private radiology report indicated hyper-inflated lungs consistent with underlying COPD. A diagnosis of COPD, no active pulmonary disease was provided. Private treatment records dated in October 2006 noted that the Veteran presented for an acute exacerbation of COPD. The Veteran's physician stated that there was "by history some allergy likely in play" and noted that the Veteran's house was messy. A December 2006 treatment note showed that the Veteran was short of breath for the past week; a diagnosis of chronic bronchitis was provided. The Veteran was afforded a VA examination in March 2013. Following a physical examination of the Veteran and a review of the claims file, the examiner diagnosed the Veteran with COPD. Bronchitis was not found on examination. The examiner found that it was less likely than not that the Veteran's COPD was incurred in or caused by an in-service injury, event or illness as the Veteran did not have a diagnosis of asbestosis and, although his military exposure to asbestos may have been probable, the Veteran did not have a pleural disease, interstitial fibrosis or a strong suspicion of asbestosis. He further noted that the Veteran's private treatment records did not show or suggest a relationship between the Veteran's COPD and military service. The examiner further stated that numerous studies indicated that cigarette smoking is overwhelmingly the most important risk factor for developing COPD and that the Veteran had a significant history of smoking in the past. The examiner further stated that a thorough review of the scientific literature regarding asbestos exposure and COPD revealed a few foreign, small scale, studies that have suggested an association, but have not shown causality; asbestos exposure has not been directly linked to COPD. The examiner noted that the Veteran's service treatment records did not demonstrate COPD during service or any respiratory disorder at the time of discharge and that private treatment records did not demonstrate a relationship between COPD and military service. He stated, finally, that the Veteran's COPD was, therefore, most likely a result of the Veteran's smoking history and less likely as not a result of his service in the military. The Veteran contends that his respiratory disabilities are due to his service. The Veteran is found to be credible. Moreover, as a lay person, the Veteran is competent to report on that which he has personal knowledge such as continuous shortness of breath. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). While the Veteran is competent to describe his observed symptoms, he is not shown to possess the medical expertise to determine the etiology of those symptoms, specifically whether his respiratory disabilities are secondary to asbestos exposure as opposed to allergies or smoking, the question of etiology goes beyond a simple and immediately observable cause-and-effect relationship, and as such, he is not competent to render an opinion of etiology in this particular case. Thus, the question of whether the Veteran's observed symptoms are related to service depends on the competent medical findings of record. First, there is absolutely no competent evidence whatsoever, either during or after service, that suggests that any respiratory disability is due to exposure to paint or chemical fumes; the evidence weighs against that avenue of service connection. Further, the medical evidence of record weighs against a finding that the Veteran's respiratory disorders are otherwise related to his service. While the Veteran is shown to have worked as a boiler operator, and therefore he may have been exposed to asbestos in service, the competent medical evidence is against a finding that a respiratory disorder is related to service to include exposure to asbestos. The Veteran's bronchitis has been linked to allergies rather than service, and the March 2013 VA examiner clearly found that the Veteran's COPD was more likely due to the Veteran's smoking history than to his service, noting specifically that the Veteran was not diagnosed with a disorder for many years after service and that there was no evidence of asbestosis. The competent medical evidence of record demonstrates that allergies and smoking, rather than the Veteran's service, caused the Veteran's respiratory disorders. The preponderance of the evidence is against the claim for service connection for a respiratory disability; there is no doubt to be resolved; and service connection is not warranted. ORDER Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs