Citation Nr: 1324337 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 07-25 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease. ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1954 to December 1955. Additionally he served with the Army National Guard from September 1951 to August 1953. He died in 2011, and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, by which the RO, in pertinent part, denied the Veteran's claim of entitlement to service connection for chronic obstructive pulmonary disease. In May 2009 and September 2010, the Board remanded the matter for further development. In May 2011, the Board dismissed the appeal following the Veteran's death. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012). In September 2011, the appellant requested to be substituted for the Veteran to pursue the appeal, and in April 2012, her request was granted. 38 U.S.C.A. § 5121A (West 2002 & Supp. 2012). In June 2012, the Board submitted a request to the Veterans Health Administration for an expert opinion as to the etiology of the Veteran's chronic obstructive pulmonary disease. 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901 (2012). Following receipt of the expert's September 2012 opinion, the Board sought clarification of that opinion in January 2013. The examiner responded in January 2013, and the appellant was given the opportunity to respond and submit additional evidence. 38 C.F.R. § 20.903 (2012). FINDING OF FACT The Veteran's chronic obstructive pulmonary disease is not shown to be related to service, and is not shown to have been permanently worsened by chronic sinusitis. CONCLUSION OF LAW Chronic obstructive pulmonary disease was not incurred or aggravated in service, and it was not caused or aggravated by the Veteran's service connected sinusitis. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 5121A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 and 3.326(a) (2012). Here, the Veteran was sent letters in October 2005 and March 2006 that fully addressed all VCAA notice elements for service connection claims and was issued prior to the initial RO decision in this matter. 38 C.F.R. § 3.159(b)(1). The matter was remanded in May 2009 and in September 2010, in part, to provide notice consistent with Dixon v. Derwinski, 3 Vet App. 261 (1992), concerning the fact that the Veteran's service treatment records may have been destroyed. VA complied with those remand directives in November 2010. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the appellant in the development of the claim includes assisting her in the procurement of the Veteran's service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). Although the majority of the Veteran's service treatment records are unavailable, possibly due to their destruction in a 1973 fire at the National Personnel Records Center, VA informed the Veteran prior to his death of the types of evidence that could demonstrate the facts necessary to substantiate the claim in lieu of his service treatment records. The claims file contains all identified post-service reports of VA and private treatment. VA provided the Veteran with an examination to determine the etiology of his sinusitis in May 2010, and obtained expert opinions regarding the etiology of his chronic obstructive pulmonary disease in September 2012 and January 2013. Moreover, the Veteran's and the appellant's statements in support of the claim are of record. The Board has carefully reviewed the arguments presented and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Additionally, the regulations provide that service connection is warranted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Prior to his death the Veteran was service-connected for chronic sinusitis. His December 1955 separation examination report is available, and it is negative for any lung symptoms or disorder. Save for a notation of sinus issues, the Veteran did not have any medical complaints at the time of the examination. No other service treatment records are available for review, but the Board notes that neither the Veteran nor the appellant asserted that he was treated for chronic obstructive pulmonary disease during service. According to a September 2005 treatment report, the Veteran quit smoking in the 1990s, but was a heavy smoker prior to quitting. In September 2003, he described himself as a former three-pack-per-day smoker. In March 2006 a private physician, Dr. D.W.P., opined that the Veteran's recurrent sinus issues "tend[ed] to exacerbate his underlying obstructive lung disease" and adversely affect[ed] his overall pulmonary status." VA provided the Veteran with an examination in May 2010. At that time, the examiner confirmed the diagnosis of chronic obstructive pulmonary disease, but noted that the onset of the disease was in 1999. That finding is consistent with the earliest medical evidence indicating a diagnosis of chronic obstructive pulmonary disease since September 1999. The examiner, noting that the Veteran quit smoking in approximately 1990, approximately 10 years prior to the diagnosis of chronic obstructive pulmonary disease, opined that chronic obstructive pulmonary disease was "related to his long 120+ pack year [history] of smoking which began before he went to service but was heavier during his service . . . ." In June 2012, the Board sought an advisory medical opinion from a pulmonologist addressing the question of whether the Veteran's service-connected chronic sinusitis aggravated his chronic obstructive pulmonary disease. In a September 2012 opinion, Dr. C.Y. determined that chronic obstructive pulmonary disease was not aggravated by chronic sinusitis. Dr. C.Y. disagreed with Dr. D.W.P.'s March 2006 findings concerning the exacerbation of obstructive disease based on chronic sinusitis, arguing that there was no documented evidence in the treatment history suggesting that the sinusitis aggravated the chronic obstructive pulmonary disease, and that there was no support for such a theory in current medical literature. The Board found Dr. C.Y.'s September 2012 opinion inadequate, in that it appeared that the pulmonologist did not consider certain records reflecting the Veteran's history of chronic sinusitis. Therefore, in January 2013, the Board requested an addendum opinion. In January 2013, Dr. C.Y., after acknowledging and addressing the Veteran's sinusitis history, opined that it was less likely than not that such a history of disease aggravated chronic obstructive pulmonary disease . Dr. C.Y. pointed out that, although chronic obstructive pulmonary disease could be exacerbated by viral or bacterial infection, "the [V]eteran reported episodic upper airway congestion and drainage, which occurs with chronic sinusitis and allergic rhinitis with no reported worsening, aggravation, or exacerbation of his [chronic obstructive pulmonary disease chronic obstructive pulmonary disease.]" He also pointed out that while "[medical] literature has reported the coexistence of upper airways disease [including chronic sinusitis] with [chronic obstructive pulmonary disease], there is no evidence to support a conclusion that an upper airway disease such as chronic sinusitis is related to the severity of [chronic obstructive pulmonary disease]." In support of his opinions, Dr. C.Y. cited to articles from the New England Journal of Medicine and the International Journal of Chronic Obstructive Pulmonary Disease. Based on the foregoing, it is evident that the Veteran was diagnosed with chronic obstructive pulmonary disease beginning in 1999, i.e., more than 40 years following his separation from active duty. There is nothing in the record, either by way of lay statements or medical evidence, to suggest that chronic obstructive pulmonary disease began during service or was caused by any event or injury in service. The May 2010 VA examiner's finding that the chronic obstructive pulmonary disease was due to the 120+ pack-year history of smoking is undisputed by the appellant. Notably, the fact that the Veteran smoked heavily while in service, as the May 2010 examiner observed, is not relevant to this appeal; the appellant is not entitled to base a service connection claim on the in-service use of tobacco products. 38 C.F.R. § 3.300 (2012). The Board finds that service connection on a direct basis is not warranted. 38 C.F.R. § 3.303(a). As noted above, service connection may also be considered based on the aggravation of a disability by a service-connected disability; here, the appellant argues that the Veteran's chronic sinusitis aggravated his chronic obstructive pulmonary disease, and in support looks to Dr. D.W.P.'s March 2006 opinion. The Board has considered Dr. D.W.P.'s opinion, but finds the opposing opinion of Dr. C.Y. more probative. In this regard, where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In this case, Dr. D.P.W. made two statements that suggest some level of aggravation due to sinusitis. He stated that the Veteran's "recurrent bouts of sinus infections and chronic sinus drainage" . . . "tend[ed] to exacerbate his underlying obstructive lung disease," and that the "recurrent sinus issues continue[d] to adversely affect his overall pulmonary status." The only reasoning he provided in support of the opinion was that the Veteran's "sinus disease [made] it difficult to keep him breathing well." Unfortunately, Dr. D.P.W. failed to provide any other reasoning in support of his opinion. He did not indicate in any way how the sinus disease impacted the Veteran's breathing (i.e., whether it affected the lungs or merely the flow of air through the sinus cavity), and failed to indicate why difficulty breathing would worsen chronic obstructive pulmonary disease. While Dr. D.P.W.'s opinion is given some weight the doctor was unable to cite to any specific evidence showing aggravation, either in the medical records or by way of particular instances where he provided treatment due to aggravation. Without any factual or medical bases for his conclusions, Dr. D.P.W.'s statements in regard to aggravation are essentially conclusory. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the Board finds that Dr. D.P.W.'s March 2006 opinion is not fully articulated, and thus that its probative value is diminished. Nieves-Rodriguez, 22 Vet. App. at 304. Dr. C.Y.'s September 2012 and January 2013 opinions that the chronic sinusitis did not aggravate chronic obstructive pulmonary disease addresses the questions left unanswered by Dr. D.P.W. Specifically, Dr. C.Y. reported that there was nothing in the available medical literature "to support a conclusion that an upper airway disease such as chronic sinusitis is related to the severity of [chronic obstructive pulmonary disease]." Dr. C.Y. noted and relied on the absence of any evidence in the treatment records (other than the opinion from Dr. D.P.W.) that the chronic obstructive pulmonary disease was aggravated by chronic sinusitis. Dr. C.Y.'s opinion, therefore, was fully supported by adequate reasoning, including citations to medical literature, and, when considering the January 2013 addendum, addressed the Veteran's complete history of chronic sinusitis and chronic obstructive pulmonary disease. Id. The Board finds Dr. C.Y.'s opinion, which found no relationship between the Veteran's service-connected chronic sinusitis and his non-service-connected chronic obstructive pulmonary disease, to be the most probative evidence of record to address the question of whether service connection can be granted based on aggravation. As the weight of the evidence of record weighs against the appellant's claim, service connection based on aggravation is not warranted. 38 C.F.R. § 3.310. The claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for chronic obstructive pulmonary disease is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs