Citation Nr: 1320945	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  12-15 112	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for a lung disease.

2.  Entitlement to service connection for a lung disease.


REPRESENTATION

Appellant represented by:	Hawaii Office of Veterans Services


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel




INTRODUCTION

The Veteran served on active duty from April 1953 to August 1975, which includes service in the Republic of Vietnam.

These matters come before the Board of Veterans' Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii.  In that decision, the RO denied the Veteran's petition to reopen a claim of service connection for a lung disease as new and material evidence had not been submitted.

The Veteran requested a Board hearing before a Veterans Law Judge at the RO by videoconference.  A Board hearing was scheduled for a date in May 2013 and the Veteran was notified of the date and time of the hearing in letters dated in April and May 2013.  These letters were sent to his address of record and were not returned as undeliverable.  Copies of these letters were also sent to the Veteran's representative.

The Veteran failed to appear for the scheduled Board hearing.  He has not explained his absence or requested to reschedule the hearing.  Thus, his appeal will be processed as if he withdrew the hearing request.  38 C.F.R. § 20.704(d) (2012).

In June 2013, the Acting Chairman of the Board granted a motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900 (c) (2012).  38 U.S.C.A. § 7107 (a)(2) (West 2002).

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  The documents in this file have been reviewed and considered as part of this appeal.






FINDINGS OF FACT

1.  The Veteran's claim of service connection for a lung disease was denied in a February 2006 rating decision as there was no competent evidence of a relationship between the disease and service; the Veteran did not appeal that determination and new and material evidence was not received within a year of its issuance.
 
2.  Evidence received since the February 2006 RO decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim, the absence of which was the basis of the previous denial.

3.  The Veteran's current lung disease did not have its clinical onset in service, was not exhibited within the first post-service year, is not presumptively related to herbicide exposure in service, and is not otherwise related to active duty.  


CONCLUSIONS OF LAW

1.  The RO's February 2006 decision that denied the claim of service connection for a lung disease is final.  38 U.S.C.A. § 7105(d)(3) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2012).

2.  The evidence received since the February 2006 decision is new and material and sufficient to reopen the claim of service connection for a lung disease.  38 U.S.C.A. §§ 5107(b), 5108 (West 2002); 38 C.F.R. § 3.156(a).

3.  The Veteran's current lung disease was not incurred or aggravated in service and it may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1103, 1110, 1112, 1113(b), 1116, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

In light of the Board's favorable decision in reopening the claim of service connection for a lung disease, the claim is substantiated, and there are no further VCAA duties as to this issue.  Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

With respect to the underlying claim of service connection for a lung disease, under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also 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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In a pre-adjudication letter dated in June 2011, the RO notified the Veteran of the evidence needed to substantiate his underlying claim of service connection for a lung disease.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The claimant's Veteran status has been substantiated.  He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the June 2011 letter.  
  
The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

VA obtained the Veteran's service treatment records and all of the identified relevant post-service VA treatment records and private medical records.  In addition, the Veteran was afforded a VA examination to assess the nature and etiology of his current lung disease and an opinion has been obtained concerning the etiology of this disease.

Analysis

I. Petition to Reopen

Generally, an RO decision denying a claim which has become final may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(d)(3).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material.  Savage v. Gober, 10 Vet. App. 488 (1997).

For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).

In this case, the RO initially denied the Veteran's claim of service connection for a lung disease in February 2006 because there was no competent evidence of a relationship between the disease and service.  Specifically, it was explained that there was no evidence to indicate that a lung condition was a chronic condition.  The Veteran's service treatment records reflected treatment for a spontaneous pneumothorax of the left lung in August 1973.  However, post-service treatment records did not indicate any treatments for a spontaneous pneumothorax of the lungs.  Although there was evidence of treatment in service for a lung condition, there was no permanent residual or chronic disability subject to service connection shown in the service treatment records or post-service treatment records.  The Veteran was notified of the RO's decision, he did not appeal, and new and material evidence was not received within one year of the decision.  Thus, the February 2006 decision became final.  See 38 U.S.C.A. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103.

Pertinent new evidence received since the February 2006 denial includes a September 2011 VA examination report which includes a report of a continuity of lung symptomatology (i.e. cough and sputum production) in the years since service. This additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by suggesting that a current lung disease may be related to service.  See Shade v. Shinseki, 24 Vet. App. 110 (2010) (evidence raises a reasonable possibility of substantiating a claim if it would trigger VA's duty to provide an examination).  The evidence is, therefore, new and material, and the claim of service connection for a lung disease is reopened.

II. Underlying Service Connection Claim

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active 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); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) (such as bronchiectasis) is through a demonstration of continuity of symptomatology.  See Clyburn v. West, 12 Vet. App. 296, 302 (1999).  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 Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a).

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).

The United States Court of Appeals for the Federal Circuit (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").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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")).

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 service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides.  38 C.F.R. §§ 3.307, 3.309.

If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).

Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as bronchiectasis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a).

Notwithstanding the foregoing presumptions, a claimant is not precluded from establishing service connection with proof of direct causation.  38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In this case, the September 2011 VA examination report includes diagnoses of mild chronic obstructive pulmonary disease (COPD) and bronchiectasis.  Thus, a current lung disease has been demonstrated.

As the Veteran served in Vietnam, he is presumed to have been exposed to herbicides, including Agent Orange.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. However, his current COPD and bronchiectasis are not conditions listed in 38 C.F.R. § 3.309(e).  Presumptive service connection on the basis of his presumed exposure to herbicides is, therefore, not warranted.  38 C.F.R. § 3.309(e); see also 68 Fed. Reg. 27,630-41 (May 20, 2003) (stating that the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted).

The Veteran has reported that he began to experience respiratory problems in service and that respiratory symptoms, including a cough and sputum production, have continued in the years since that time.  Also, the evidence of records reveals that he had a long history of tobacco use and that he smoked during service.  

The Veteran is competent to report symptoms of a lung disease as well as a continuity of symptomatology.  However, his reports must be weighed against the objective evidence and their credibility must be assessed.  See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337.

Service treatment records include reports of treatment for a cough on various occasions between May 1957 and November 1970.  Also, in August 1973 the Veteran reported a 4 day history of a cough and chest pain.  He was diagnosed as having a spontaneous pneumothorax on the left.  There is no evidence of any other complaints of or treatment for respiratory problems in his service treatment records and his June 1975 retirement examination was normal other than for scars.

If a chronic disease, such as bronchiectasis, is shown in service and at any time thereafter, service connection will be conceded.  38 C.F.R. § 3.303(b).  There must, however, be sufficient observations in service to identify the disease entity.  Id.  As discussed above, there is no evidence showing any diagnosed bronchiectasis in service and the Veteran has not reported bronchiectasis during service.  Hence, service connection cannot be granted on this basis here.

The objective evidence indicates that the Veteran's current lung disease did not manifest until many years after service.  The first post-service clinical evidence of a lung disease is an examination report from C.Y. Shikuma, M.D., Inc. dated in December 1997 which includes a diagnosis of COPD.  There is no clinical evidence of any earlier lung problems following service.  The absence of any clinical evidence of lung problems for over two decades after service weighs against a finding that the Veteran's current lung disease was present in service or in the year or years immediately after service.  

The Veteran has provided varying statements as to the history of his lung problems. For example, in his June 2012 substantive appeal (VA Form 9), he reported that he was diagnosed as having a collapsed lung in service and that he continued to experience intermittent wheezing.  Also, he reported during the September 2011 VA examination that he had experienced a cough and sputum production "for many years since his discharge from the military."  However, he reported on a June 1975 report of medical history for purposes of retirement from service that he was neither experiencing nor had ever experienced any asthma, shortness of breath, or chronic cough.  Moreover, during a November 2000 examination at C.Y. Shikuma, M.D., Inc. he reported that he experienced a chronic cough which had begun approximately 3 months prior to the November 2000 examination.

In light of the fact that the Veteran's June 1975 retirement examination did not reflect any lung abnormalities, the absence of any clinical evidence of treatment for lung problems for many years after service, and the Veteran's inconsistent and contradictory statements concerning the history of his lung symptoms, the Board concludes that his reports concerning the history of his lung symptoms, including those of a continuity of symptomatology since service, are not credible.  Thus, neither the clinical record nor the lay statements of record establish a continuity of symptomatology in this case, precluding an award of service connection on this basis.

Moreover, the only medical opinion of record reflects that the Veteran's current lung disease is not related to service.  The physician who conducted the September 2011 VA examination opined that the Veteran's current lung disease was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by any in-service injury, event, or illness.  He reasoned that the documented episode of a spontaneous left-sided pneumothorax that occurred in service resolved without recurrence or sequelae.  Also, the pneumothorax in service was not pathophysiologically related to his currently diagnosed COPD.

The examiner who provided the September 2011 opinion did not explicitly acknowledge and discuss the Veteran's reports of a continuity of lung symptomatology in the years since service in formulating the opinion.  However, as explained above, the Veteran's reports of a continuity of symptomatology are not deemed to be credible and an opinion based on such an inaccurate history would be inadequate.  See Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).

The September 2011 opinion was otherwise based upon an examination of the Veteran and a review of his medical records and reported history, reflects consideration of the Veteran's lung problems in service, and is accompanied by a specific rationale that is not inconsistent with the evidence of record.  Thus, the opinion is adequate and entitled to substantial probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

The Veteran has expressed his belief that his current lung disease is related to his lung problems in service.  However, as a lay person, he can only comment as to symptoms and immediately-observable relationships.  He lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that his current lung disease is related to any specific lung problems in service, as opposed to some other cause.  Rather, it would require medical expertise to evaluate the disease, consider all the potential causes, and determine that one was a more likely cause than another.  Hence, the Veteran's opinion on this question is not competent evidence.  38 C.F.R. § 3.159(a)(1), (2) (2012).

Although the Veteran has received treatment from medical professionals for his lung disease, none have attributed this disease to any disease or injury in service (including the lung problems documented in service or herbicide exposure).  Also, the only medical opinion of record indicates that no relationship exists between the Veteran's current lung disease and service.

Despite the fact that there is evidence of tobacco use in service, compensation is not payable for disability resulting from the use of tobacco products in service.  38 U.S.C.A. § 1103.  This prohibition applies to all claims received after June 9, 1998. Pub.L. 105-178, Title VIII, § 1005; 112 Stat. 866 (Jul. 22, 1998).  The Veteran's current claim has been recognized as being received in February 2011.

There is no other evidence of a relationship between the Veteran's current lung disease and service, and neither he nor his representative have alluded to the existence of any such evidence.  Also, as discussed above, the record fails to demonstrate any credible evidence of a continuity of symptomatology.  Thus, the preponderance of the evidence is against a finding that the Veteran's current lung disease is related to service, manifested in service, or manifested within a year after his August 1975 separation from service.

For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim.  The benefit-of-the-doubt doctrine is therefore not for application in this case and the claim of service connection for a lung disease must be denied.  See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57.


ORDER

As new and material evidence has been received, the claim of service connection for a lung disease is reopened, and to this extent the appeal is granted.

Entitlement to service connection for a lung disease is denied.


____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs