Citation Nr: 1322947 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 11-20 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from April 1957 to April 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In November 2011, the Veteran provided testimony relevant to the appeal before a hearing officer at a personal hearing held at the RO. A transcript of the hearing is of record. Although the Veteran initially requested videoconference Board hearing on the July 2011 VA Form 9, he later withdrew the request for a Board hearing in May 2012. 38 C.F.R. § 20.704(e) (2012). Due to the Veteran's advanced age, 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). FINDINGS OF FACT 1. During service, the Veteran was exposed to smoke and fumes from an aircraft fire in July 1958 while performing his duties as a medical service specialist in the Air Force. 2. The Veteran's currently diagnosed COPD is not causally or etiologically related to service, to include in-service exposure to smoke and fumes from the aircraft fire. 3. The Veteran's current COPD is attributable to his history of smoking tobacco for many years. 4. Service connection is precluded for disability due to the use of tobacco products during active service. CONCLUSION OF LAW COPD was not incurred in active military service. 38 U.S.C.A. §§ 1103, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.300, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Collectively, in November 2010, January 2011, and March 2011 notice letters sent prior to the initial denial of the service connection claim for COPD, the RO apprised the Veteran of the information and evidence necessary to substantiate the claim for service connection, which information and evidence that he was to provide, and which information and evidence that VA would attempt to obtain on his behalf. Specifically, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established, which satisfied Dingess notice requirements. These notice letters letter fully satisfied VCAA notice requirements with respect to the claim. Regarding VA's duty to assist in claims development, the Board notes that the Veteran's service treatment records are incomplete in this case. The Board is aware that when service records are unavailable through no fault of a veteran, it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As will be explained below, however, the Board concludes that the heightened duty to assist has been met. In February 2003, available service treatment records were mailed to the RO. In January 2011, the RO advised the Veteran that the service treatment records were fire-related and incomplete, asked him to submit any service treatment records he may have, requested military medical records that may support the claim, and requested additional information regarding reported hospital treatment. Later that month, the Veteran provided additional information regarding the history of respiratory problems and tobacco smoking; however, he did not provide any information regarding service treatment records that may be in his possession, other documents that may substitute for service treatment records, or provide the requested NA Form 13055. In March 2011, the RO again asked the Veteran to provide the enclosed NA Form 13055 so that a thorough search for the military medical records could be made, asked him to submit service treatment records in his possession, and asked him to furnish documents that can substitute for service treatment records. The Veteran did not respond to the letter, and a Formal Finding on the Unavailability of Service Records was made. In April 2011, the RO advised the Veteran that a thorough search for the service treatment records had been unsuccessful and further efforts to locate them would be futile, and asked the Veteran to submit copies of any service treatment records he may have within ten days of the date of the letter. The Veteran did not respond to the letter. Ten days after the date of the letter, a VA employee contacted the Veteran by telephone and advised him regarding the negative response from the service department for service treatment records, as well as the requirement that he submit any relevant documents that he may possess, and notified him that a decision would be made based on the evidence of record. The Veteran did not state that he had any evidence to submit, and the RO rendered a decision on the claim later that month. In light of the foregoing actions, the Board finds that further efforts to obtain the Veteran's complete service records would be futile. Regarding VA's duty to notify the Veteran of VA's inability to obtain records, as outlined in 38 C.F.R. § 3.159(e), the RO has informed the Veteran that service treatment records were incomplete, and adequately addressed its efforts to obtain the records (i.e., asked the service department for the service treatment records). The RO has also asked that the Veteran provide any service treatment records in his possession or furnish documents that can substitute for the service treatment records; therefore, the failure of the RO to advise the Veteran that he was ultimately responsible for providing the evidence is harmless error. The RO considered the claims after repeatedly asking the Veteran to submit any service records in his possession and asking him to provide additional information regarding any in-service treatment (i.e., asking him to complete the NA Form 13055). The Veteran was advised by a VA employee by telephone that the claim would be decided on the evidence of record unless he submitted the records unable to be obtained. In the April 2011 rating decision, the RO advised the Veteran that the claim would be reconsidered if the records became available at a later date; therefore, in consideration of the foregoing, the Board finds that the duty to notify the Veteran of the unavailability of the service treatment records in accordance with 38 C.F.R. § 3.159(e) has been fulfilled. Moreover, as it relates to the service connection claim for COPD, the Veteran has not asserted that he received any treatment for respiratory problems during service. He has only asserted that he was exposed to the smoke and fumes from aircraft fire, and VA has accepted the Veteran's account as fact when adjudicating the claim. The Veteran's claim has been denied because the medical opinion evidence of record weighs against finding that the Veteran's current COPD was causally related to service. Therefore, it is unlikely that any additional service treatment records, if obtained, would help to substantiate the Veteran's claim. The Board additionally notes that the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. Pertinent post-service treatment records adequately identified as relevant to the appeal have been obtained or otherwise submitted and are associated with the record. There are no additional treatment records found in the Veteran's Virtual VA file. The case law does not lower the legal standard for proving a claim for service connection when service treatment records are incomplete, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Also, in March 2011, the Veteran underwent a VA medical examination in connection with the claim. The March 2011 VA medical examiner interviewed the Veteran, reviewed the record, and conducted a physical examination of the Veteran, to include chest x-ray and pulmonary function tests. The March 2011 VA medical examiner considered the Veteran's report of inhalation injury in 1958 when exposed to smoke and fumes from a plane crash, the reported history of tobacco use, treatment for respiratory symptoms, physical findings, and x-ray and pulmonary function test results. After consideration of this evidence, the March 2011 VA medical examiner provided a medical opinion based on adequate rationale. The Veteran has asserted that the March 2011 VA medical examination was inadequate on the following bases: 1) the VA medical examiner had already decided to provide a negative medical opinion before the examination had begun; 2) the medical examination was very short; 3) the VA medical examiner was a general practitioner and not a pulmonary specialist; and 4) the medical personnel who conducted the pulmonary function tests already had "their minds made up" and did not listen to what the Veteran had to say, and the tests do not reflect the severity of the COPD. After consideration of the Veteran's assertions and reviewing the March 2011 VA medical examination report, the Board finds that the VA medical examination and medical opinion are adequate. As stated above, the March 2011 VA medical examiner considered the Veteran's report of in-service inhalation injury, past and current respiratory symptoms and treatment, and the pertinent physical findings shown on examination, to include x-ray and pulmonary function tests. Aside from the Veteran's unsubstantiated statement that the VA medical examiner had made up his mind to provide a negative medical opinion prior to the examination, there is no indication in the record that the VA medical examiner was biased against the Veteran when providing the medical examination and medical opinion. The VA medical examiner cited to certain facts presented in this Veteran's case, as well as known medical principles, when providing his rationale for the medical opinion and the rationale provided is adequate. Also, while the duration of the March 2011 VA medical examination is not clear from the record, the VA medical examination report includes all pertinent findings and shows that a thorough evaluation of the Veteran was conducted. The March 2011 VA medical examiner, as a general practitioner, has adequate medical training and expertise to provide a competent medical opinion regarding the likelihood that the Veteran's claimed COPD is causally related to service. The Veteran is not shown to present with a complex respiratory disability picture so as to warrant medical evaluation and medical opinion from a pulmonary specialist. Regarding the Veteran's assertion that the pulmonary function test results were inadequate due to the bias of the personnel conducting the tests and the fact that the results did not reflect the severity of the respiratory disability, the Board notes that the Veteran's treatment records include multiple assessments of COPD, and the March 2011 VA medical examiner diagnosed COPD. The fact that the Veteran has a current respiratory disability is not in dispute. Further, the normal pulmonary function test results are not the basis for the March 2011 VA medical opinion. The severity of the Veteran's COPD is irrelevant to the service connection claim. Neither the Veteran nor the representative has made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence of record in this case. The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's currently diagnosed COPD is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service Connection Analysis The Veteran primarily contends that, in July 1958 during service, he was exposed to the smoke and fumes from an aircraft fire while performing his duties as a medical services specialist at Offutt Air Force Base. He asserts that he was on the scene while the fire department extinguished the fire from the aircraft crash, and, thereafter, he helped with the clean-up of the crash site without any respiratory protection. The Veteran contends that his current COPD is the result of the in-service inhalation of smoke and fumes resulting from the aircraft crash. At the RO hearing, the Veteran reported that there were two other aircraft crashes during active service but he did not believe that he suffered any significant exposure to toxic smoke or fumes at those times. See November 2011 RO hearing transcript, page 9. In the alternative, the Veteran has asserted that his COPD is due to tobacco smoking, which was encouraged by the military and which began during active service. See January 2011 statement from the Veteran. At the outset, the Board notes that there is ample evidence of record showing that the Veteran is currently diagnosed with COPD. When the Veteran underwent medical examination in March 2011, the VA medical examiner diagnosed the Veteran with COPD at that time. The Veteran's VA treatment records also include assessments of COPD. See, e.g., VA primary care attending note dated June 2, 2011. In consideration thereof, the Board finds that the presence of current COPD is not in dispute, and the Board will now consider in-service incurrence. The record includes a newspaper article submitted by the Veteran showing that two individuals were injured in a plane crash at Offutt Air Force Base in July 1958, as well as a January 2003 buddy statement from a fellow service member who recalled the plane crash. The Veteran has further provided a competent account of having been exposed to the smoke and fumes of the July 1958 aircraft fire while performing his duties as a medical services specialist, and such exposure is consistent with the circumstances and conditions of his service; therefore, the Board finds the Veteran's account to be credible. Upon review of all of the lay and medical evidence of record, however, the weight of the evidence is against finding that the Veteran's currently diagnosed COPD had its onset during service or is otherwise causally or etiologically related to service, to include exposure to smoke and fumes at an aircraft crash site. The Board initially notes that, in a November 2010 statement, the Veteran stated that he recalled being short of breath during service after the plane crash incident and the respiratory problems continually worsened after service separation. Also, when asked at the November 2011 RO hearing when he first started having respiratory problems after the aircraft incident, the Veteran responded that he noticed minor respiratory problems when he exerted himself approximately a year later (i.e., during service). However, weighing against a finding of service onset of disability are available service treatment records that are absent of any complaints, findings, or treatment for respiratory problems, as well as inconsistent actions by the Veteran after service, and an absence of complaints, findings, or diagnosis for years after service. The Veteran filed VA claims in December 2002 for disability compensation benefits, and asserted that the disabilities were the result of the July 1958 plane crash; however, he made no mention of having had any respiratory problems during and/or since service and did not file a claim for a respiratory disability until eight years later (i.e., in 2010). Because the Veteran has alleged that the respiratory symptoms began during service after being exposed to the smoke and fumes of the aircraft fire and continued thereafter, it is likely that he would have filed a claim for a respiratory disability when he filed the 2002 claims with VA for disability compensation benefits, particularly when the claimed disabilities were also asserted to have been related to the same incident. The fact that the Veteran did not file a claim for a respiratory disability at that time or until eight years later weighs against the credibility of the assertion that he had respiratory problems during service and has continued to have such problems since service. The evidence also more generally undermines the Veteran's credibility as it relates to his account of the relevant history pertaining to COPD. The Board further notes that the Veteran's COPD was not diagnosed until many years after service separation. In this regard, the Board notes that the Veteran has repeatedly asserted that he was first diagnosed with COPD on May 28, 2003 by a VA primary care provider; however, the VA treatment records do not support the assertion. The May 28, 2003 VA primary care attending note reveals that the Veteran was a new patient at the time and does not include an assessment of COPD. In fact, while the Veteran is shown to have received VA medical treatment for various problems after the initial May 2003 visit, the VA treatment records are absent of any mention of COPD until June 2007. Although the Veteran has stated that his VA primary care provider prescribed a nebulizer in November 2006 to treat his lung problems, the September 2006 VA primary care attending note shows that the Veteran had recently received private treatment for a "sinus infection" and had been placed on nebulizer treatment and levaquin; there was no mention of COPD. Also, on June 13, 2007, when the Veteran sought supportive therapy for psychiatric problems through VA, he reported that he was diagnosed with COPD and had been told that he may have asthma. Approximately one week later, the Veteran's VA primary care medical provider noted that the Veteran had been seen by a private medical facility for shortness of breath and there may be an asthmatic component to his respiratory problem. The VA primary care provider also noted that the Veteran demonstrated mild COPD on pulmonary function tests. The evidence discussed above contradicts the Veteran's assertion that COPD was first diagnosed in 2003 and indicates that the Veteran was, instead, diagnosed with COPD in 2007. Indeed, it is likely that the Veteran would have told the VA primary care provider that he had been diagnosed with COPD or that the VA treatment records would otherwise reflect that a COPD diagnosis had been made during the period from 2003 to 2007, if it had been diagnosed in 2003 as the Veteran has alleged. The fact that VA treatment records include no reference to COPD until 2007 weighs against the credibility of the assertion that it was first diagnosed in 2003. The medical opinion evidence further weighs against finding that the Veteran's COPD, which first manifested many years after service separation, is causally or etiologically related to service. After considering the Veteran's report of in-service exposure to smoke and fumes from a plane crash during active service, past and current respiratory symptoms and treatment, and performing a clinical evaluation of the Veteran, to include chest x-rays and pulmonary function tests, the March 2011 VA medical examiner opined that it was not at least as likely as not that the Veteran's current COPD was due to exposure to smoke and fumes from the aircraft fire in 1958. In support of the medical opinion, the March 2011 VA medical examiner wrote that COPD was a chronic lung condition that is commonly associated with tobacco smoking, and the Veteran had admitted to many years of cigarette and cigar smoking. The March 2011 VA medical examiner noted that, if the Veteran had not been exposed to the smoke and fumes from the aircraft fire in 1958, the current lung condition would still exist due to the smoking habit. The March 2011 VA medical examiner also commented that the aircraft fire was an isolated incident whereas the tobacco smoking was a daily occurrence with a resultant cumulative effect on the Veteran's lungs. The March 2011 VA medical examiner added that the Veteran's current lung condition of COPD was due to his smoking of tobacco. The March 2011 VA medical opinion was based on an accurate history, physical findings, accepted medical principles, and review of the record. The March 2011 VA medical examiner provide adequate rationale for the medical opinion, and there is no contrary medical evidence or medical opinion of record; therefore, the March 2011 VA medical opinion is of great probative value. As noted above, the Veteran has alternatively asserted that he currently suffers from COPD due to tobacco smoking, which was actively encouraged by the military and began during his period of active service. The Veteran is competent to report that he began to smoke tobacco products during service, and there is no clear indication in the record that the account is not credible; however, for claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C.A. §§ 1103(a), 1131. The Veteran filed the current claim in 2010; therefore, this assertion is against the claim for service connection as it suggests a nonservice-related etiology for COPD. Although the Veteran has asserted that COPD is causally related to service, he is a lay person and does not have the requisite medical training or credentials to be able to render a competent medical opinion regarding the cause of his COPD. The etiology of the Veteran's COPD is a complex medical etiological question dealing with the origin and progression of the respiratory system, and COPD is a disorder diagnosed primarily on clinical findings and physiological testing. Thus, while the Veteran is competent to relate respiratory symptoms that he experienced at any time, he is not competent to opine on whether there is a link between his COPD and active service, including the asserted exposure to smoke and fumes during active service, because such a medical opinion requires specific medical knowledge and training. Furthermore, as stated above, the Veteran's assertion that symptoms of COPD began during service and that there has been continued respiratory symptomatology since service is not deemed credible when weighed against other, more credible evidence of record. Thus, the weight of the evidence is against a finding that COPD was incurred in or was otherwise caused by active service. Thus, in consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim of service connection for COPD and, consequently, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for COPD is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs