Citation Nr: 1322746 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-02 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES Entitlement to service connection for chronic obstructive pulmonary disease (COPD) to include as secondary to service-connected asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Friends ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from November 1979 to December 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefit sought on appeal. The RO in Indianapolis, Indiana, currently has jurisdiction over the case. The Veteran testified at a hearing before a Decision Review Officer (DRO) in May 2012. A transcript of that hearing is of record. A review of the Virtual VA paperless claims processing system was conducted. FINDING OF FACT The competent and credible evidence demonstrates that the Veteran has COPD that is related to her active duty service. CONCLUSION OF LAW COPD was incurred during active duty service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given the favorable disposition of the claim for service connection for COPD, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. Analysis The Veteran seeks service connection for COPD as a result of chronic bronchitis suffered in service or alternatively as secondary to her service-connected asthma. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). As COPD is not a chronic disease under § 3.309(a), the Court finds as a matter of law that continuity of symptomatology may not serve in lieu of medical nexus. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Federal Circuit has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. See Clyburn v. West, 12 Vet. App. 296 (1999). Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes 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. In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a Veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). The Board notes initially that the Veteran is currently diagnosed with COPD as reported on the December 2009 VA examination. Therefore, the Veteran has a current disability as required by 38 C.F.R. § 3.303. The Veteran's service treatment records indicated that the Veteran was treated multiple times for recurrent bronchitis and mild obstructive airway disease. It was determined during service that the Veteran's symptoms were consistent with asthma for which the Veteran is currently service connected. The Veteran frequently sought treatment for a chronic cough that was repeatedly diagnosed as bronchitis. There is no evidence that she was diagnosed with COPD during active duty service. Post service, the Veteran's treatment records indicated that she had been treated for various obstructive lung disorders including asthma, bronchitis, pneumonia and COPD. She was also diagnosed with restrictive lung disease. Private treatment records from September 2009 noted that the Veteran had mild to moderate COPD which was exacerbated by an acute episode of bronchitis. Private treatment records noted that the Veteran had a history of smoking. A September 2008 QTC examination report noted that the Veteran was diagnosed with COPD and asthma. There was no opinion provided with regard to the etiology of the Veteran's COPD so she was afforded a VA examination in December 2009. The Veteran was diagnosed with COPD. After reviewing the claims file and providing a thorough examination the VA examiner opined that the Veteran's COPD was not caused by or the result of service-connected asthma, but rather the result of tobacco smoke which is overwhelmingly the most common cause of COPD. The examiner noted that the Veteran stated that she started smoking in 1972, quit for 10 years, then restarted and quit again in 2005. As such, the Veteran had approximately a 20 year history of smoking. The examiner further noted that there was no medical literature to support the theory that asthma caused COPD. Finally, there was no evidence the Veteran was diagnosed with COPD while enlisted in the military. While there was evidence of episodic bronchitis, but not chronic bronchitis which is defined as a history of "at least 2 consecutive years of at least 90 days of cough and sputum production." The Veteran's private treating physician stated in a January 2009 letter that the Veteran had been diagnosed with COPD which is also called emphysema and includes a variety of obstructive airway problems. A review of the Veteran's service treatment records indicated multiple diagnoses of bronchitis and reactive airway disease. The private physician then stated that recurrent bronchitis, as evidenced by the Veteran's medical record, could lead to chronic bronchitis, a form of COPD. The Veteran stated at her May 2012 DRO hearing that she disagreed with the VA examiner's assessment regarding her COPD being a result of her smoking. She stated that she had not ever smoked for 20 years consecutively, but rather that her smoking was off and on, with her smoking maybe two to four years at one point, quitting for a lot of years and then starting again, and finally quitting in 2005. She further noted that private doctors had informed her that her asthma, bronchitis, and COPD were all related. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert, denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet.App. 362, 367 (2001). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet.App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet.App. 67, 74 (1997). The Board notes that laypersons are generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). As a lay person, the Veteran is not competent to provide evidence as to complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). However, with regard to the Veteran's claim for COPD, the Board finds there is competent and credible medical evidence that supports the Veteran's claim and it therefore warrants service connection. The Board finds the above competent and credible medical evidence linking the Veteran's COPD to the repeated episodes of bronchitis in service to be at least in equipoise with regard to a grant of service connection. In this regard, the Board notes that while the December 2009 VA examiner did not find that the Veteran had chronic bronchitis in service, a positive nexus opinion was provided by the Veteran's treating physician noting that the Veteran's recurrent episodes of acute bronchitis could lead to chronic bronchitis, a form of COPD. Therefore, the Board finds service connection is warranted for COPD. As noted above, service connection is generally warranted only if there is competent evidence of a causal relationship between any present disability and service. See Hickson, supra; 38 C.F.R. § 3.303(d). In consideration of all the above, the Board finds that the evidence is in relative equipoise and given the benefit of the doubt rule, the Veteran's claim must be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for COPD is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs