Citation Nr: 1324216 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 09-46 557 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disorder (COPD), to include as due to Agent Orange exposure and/or environmental hazards. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to November 1971. This matter remaining on appeal initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the RO. In February 2010, the Veteran and his wife testified before the undersigned during a videoconference hearing. A copy of the hearing transcript has been associated with the claims folder. In August 2010 and June 2012, the Board, in pertinent part, remanded the matter remaining on appeal to the RO via the Appeals Management Center (AMC) for additional development of the record. After completing the requested development, the RO continued to deny the claim (as reflected most recently in a February 2013 supplemental statement of the case (SSOC)) and returned the matter remaining on appeal to the Board for further consideration. The Veteran's appeal originally included the issue of entitlement to service connection for hypertension. During the pendency of the appeal, the RO, in a February 2013 decision, granted service connection for hypertension and assigned a noncompensable rating for the hypertension effective on December 18, 2006. In a letter (titled a Notice of Disagreement (NOD)) received in April 2013, the Veteran states in pertinent part, "Veteran contends that the award [for service connection for hypertension] should be retro back to original denial back in December 2006." Essentially, it appears that the Veteran is asserting that he is entitled to an earlier effective date for the grant of service connection for hypertension; specifically, he seems to assert that the effective date for the grant of service connection for hypertension should be December 2006, the date of his original claim for service connection. In this case, the Board points out that the effective date for the grant of service connection for hypertension is December 18, 2006. Accordingly, the Board does not construe the Veteran's letter received in April 2013 as a NOD because the Veteran is seeking a benefit to which he is already entitled. There is no substantive disagreement with any action taken by the RO with regard to the assignment of the effective date for the grant of service connection for hypertension. Similarly, in a June 2012 decision, the Board granted service connection for depression. The RO, in a January 2013 rating action, effectuated the Board's decision and evaluated the depression with the already service-connected posttraumatic stress disorder (PTSD), assigning a 50 percent rating for the disability (PTSD with depression) effective on December 18, 2006 (date of claim for service connection). In a letter (titled a Notice of Disagreement (NOD)) received in February 2013, the Veteran states in pertinent part, "I realize that you cannot pay me twice for the same disability but technically you paid me only from 04-01-2010 for PTSD not the depression. I should be compensated from 12-18-2006 to 04-01-2010 for the depression of 50% entitlement." Essentially, it appears that the Veteran is asserting that he is entitled to an earlier effective date for the grant of service connection for depression; specifically, he seems to assert that the effective date for the grant of service connection for depression should be December 18, 2006, the date of his original claim for service connection. In this case, the Board points out that the effective date for the grant of service connection for depression (evaluated with PTSD) is December 18, 2006. Now, pursuant to 38 C.F.R. § 4.14, the Veteran cannot receive additional compensation for depression (a fact he seems to understand) but the fact remains he receives compensation at a 50 percent disability rating for the depression (again, evaluated with the PTSD) effective as of December 18, 2006. Accordingly, the Board does not construe the Veteran's letter received in February 2013 as an NOD because the Veteran is a benefit to which he is already entitled. There is no substantive disagreement with any action taken by the RO with regard to the assignment of the effective date for the grant of service connection for depression. The Board also notes that additional evidence, specifically a video described as showing evidence of the amount and intensity of the Veteran's exposure to herbicide agents, has been associated with the claims file since the February 2012 supplemental statement of the case (SSOC). However, in a June 2013 letter, the Board acknowledged that additional evidence had been submitted and gave the Veteran the option to choose to waive RO initial consideration of this evidence and have the Board consider the evidence in the first instance in adjudication of the claim. The Board advised the Veteran that if he did not respond within 45 days, the case would be returned to the RO for initial consideration of the newly submitted evidence. In June 2013, the Veteran responded that he waived his right to have his case remanded for RO initial consideration of the newly submitted evidence and requested that the Board proceed with adjudication of his appeal. See 38 C.F.R. § 20.1304(c). Finally, the Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are not relevant to the issue remaining on appeal. 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). FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed during such service to certain herbicide agents, including Agent Orange. 2. The preponderance of the evidence shows that the Veteran's COPD did not manifest in service or for many years thereafter and is not related to his military service, including herbicide exposure and/or environmental hazards therein. CONCLUSION OF LAW The criteria for service connection for COPD are not met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a claimant 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) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a February 2007 letter issued prior to the rating decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection for COPD, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned and the type of evidence which impacts those determinations. The October 2007 rating decision reflected the initial adjudication of the claim after issuance of this letter. Thus, the timing and content requirements have been met with regard to the duty to notify. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal. In addition, the Veteran was afforded VA examinations in October 2010, December 2011 and January 2013 in connection with his claim for service connection for COPD. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it should ensure that the examination or opinion is adequate. As discussed below, the Board finds that the January 2013 examination and medical opinion obtained in this case are adequate, as they are predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, including the contentions and statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). During the February 2010 Board hearing the Acting VLJ clarified the issue on appeal, determined that there may be additional evidence and addressed the Veteran's manifestations. Potential evidentiary defects were identified and the Veteran was provided an opportunity to cure the defects. Such actions supplement the VCAA and comply with any related duties owed during a hearing. In summary, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for a VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Law and Analysis Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also may be granted for any disease initially 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). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313, 3.318. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination affecting to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations affecting the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that are, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. 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). Hence, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, the Veteran contends that his COPD is related to his military service. Specifically, he has asserted that disorder is related to his herbicide exposure while he was serving in the Republic of Vietnam. The Board observes that the Veteran served in the Republic of Vietnam from September 1970 to November 1971. As such, he served in the Republic of Vietnam during the Vietnam era and is therefore presumed to have been exposed during such service to certain herbicide agents, including Agent Orange. The Board finds that the preponderance of the evidence shows that no injury, disease, or chronic symptoms of COPD were manifested during the Veteran's military service or until many years thereafter. His service treatment records do not document any treatment for or diagnosis of COPD and the Veteran does not describe symptoms of COPD during active service. At his November 1971 service discharge examination clinical evaluation of the lungs was normal. Medical records do not indicate and the Veteran does not described treatment or symptoms of COPD until many years after service. At his February 2010 Board hearing he recalled fatigue and loss of appetite during service contributing to a sensation in his chest, but could not recall specific breathing problems during service or during the years shortly after discharge from service. A November 2008 letter from a private physician indicates that the Veteran was diagnosed as having COPD in 2005. In addition, the Board finds that Veteran's COPD is not related to his herbicide exposure during service. COPD is not on the list of diseases that VA has associated with Agent Orange exposure. The VA physician in the January 2013 report of examination indicated that the claimed COPD was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The physician concurred that the Veteran's COPD was not due to an identifiable genetic defect. The physician listed the factors that oppose a grant of service connection for COPD, including lack of an established association between Agent Orange exposure and COPD, and the Veteran's smoking history. The physician also listed the factors that support a grant of service connection for COPD, including the relative mildness of the Veteran's smoking history, the severity of his condition and the rapidity of its progression to an end stage. The physician also commented that a determination that the Veteran's COPD was not related to Agent Orange exposure ran the risk of unfairly depriving the Veteran of benefits to which he was entitled. However, acknowledging the unusual severity of the Veteran's COPD, the physician concluded that to render an opinion in favor of service connection based solely on the severity of the disease in relation to the moderateness of the smoking history would represent a purely emotional or speculative decision. The physician explained that COPD can occur in the absence of any smoking history and in the absence of exposure to Agent Orange. The physician conceded that there was thin evidence in the medical literature for an association between Agent Orange exposure and COPD and that the severity of the Veteran's COPD was incompletely explained. The physician acknowledged that Agent Orange exposure must be considered as a possibility but it was not reasonable to conclude that it was a strong possibility. Thus, the physician concluded that it was less likely than not that the Veteran's COPD was related to his military service, to include as due to in-service exposure to Agent Orange and other environmental hazards. The physician explained, noting the Veteran's report of other environmental hazards, that some inhalations are associated with constrictive bronchiolitis; but, in this case it could not be inferred that the Veteran's exposure in Vietnam brought him to his present state. The Board has considered the November 2008 private treatment record confirming the diagnosis of COPD, in which treating the physician stated that significant exposure to Agent Orange in a single study was associated with chronic respiratory disease. The physician concluded that it was possible that the Veteran's exposure to Agent Orange had contributed to the severe decrement in his lung function. This opinion is consistent with the January 2013 opinion, in stating that such a relationship is possible, as indicated by a single study. However, the private treatment provider did not express the degree of the possibility of such a relationship. In general, the Board is responsible for assessing the credibility and weight to be given to the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Such assessments extend to medical evidence. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion reached; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). The speculative nature of a medical opinion limits its probative value. An examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124 (1998). In the Board's view, the private physician's opinion that such a relationship is possible is similarly speculative and is therefore of a substantially diminished probative value as evidence in support of the Veteran's claim. The physician who concluded in the November 2008 private treatment record that it was possible that the Veteran's exposure to Agent Orange had contributed to the severe decrement in his lung function offered an opinion that was too speculative to establish that a causal relationship was at least as likely as not under the facts of this case. In contrast, the January 2013 VA physician provided a clear and thorough rationale and his opinion as to the likelihood of such a relationship was clear and well-explained, evaluating both sides of the evidence in a balanced and reasoned manner. In offering his opinion, that it was less likely than not that the Veteran's COPD was related to his military service, to include as due to in-service exposure to Agent Orange and other environmental hazards, the VA physician reviewed the claims file, considered the reported history, performed physical examination and reviewed the submitted medical literature. It is clear that the physician fully understood the basis for the Veteran's claim yet still determined, after reviewing the facts of the case, that the current COPD was most likely related to causes other than the Veteran's period of active service including in-service exposure to Agent Orange and other environmental hazards. For these reasons, the Board finds the January 2013 VA medical opinion to be of a high probative value and substantially more probative than the November 2008 private medical opinion. Additional aspects of the evidence submitted in support of the Veteran's claim include his lay assertions and a video indicated to be of the Veteran in Vietnam. The Veteran asserts that his current COPD is as a result of his service. However, the Board finds that, given the medical complexity surrounding COPD and any potential relationship to herbicide exposure, under the very specific facts of this case the Veteran is not sufficiently competent in the field of medicine to render an opinion regarding the etiology of the claimed disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, his assertions in this regard are of a greatly diminished probative value. Additionally, the Board viewed and considered the approximately 2 minute DVR footage submitted by the Veteran of what appears to be the Veteran in Vietnam. It shows soldiers washing vehicles and artillery equipment and the general landscape of the base and the surrounding areas. However, the video does not provide any meaningful way of ascertaining the amount or intensity of herbicide exposure such as might assist a clinician in determining the effects of the exposure on the Veteran. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for COPD, and the claim must be denied. Because the preponderance of the evidence is against the claim on the critical matter of medical causation, the benefit of the doubt doctrine is not for application in resolution of this appeal. See generally Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for chronic obstructive pulmonary disorder COPD, to include as due to Agent Orange exposure and/or environmental hazards, is denied. ____________________________________________ STEPHEN L. HIGGS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs