Citation Nr: 1325321	
Decision Date: 08/09/13    Archive Date: 08/13/13

DOCKET NO.  05-24 607A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for a lung disorder, including chronic obstructive pulmonary disease (COPD).


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D.J. Drucker, Counsel

INTRODUCTION

The Veteran had active military service from November 1967 to July 1975.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In May 2009, the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

In October 2009, the Board remanded the Veteran case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development.

Then, in an April 2011 rating decision, the RO granted service connection for post-traumatic stress disorder (PTSD) and peripheral neuropathy of the right and left upper extremities.  In an August 2011 rating decision, the RO granted service connection for coronary artery disease.  The RO's actions represent a full grant of the benefits sought as to the Veteran's claims.

In a January 2012 decision, the Board denied the Veteran's claim for service connection for residuals of a neck injury.  At that time, the claim of service connection for a lung disorder was remanded to the RO via the AMC for further development.

Thereafter, in January 2013, the Board requested a medical opinion, pursuant to 38 U.S.C.A. § 7109 and as set forth in a designated Veterans Health Administration (VHA) Directive, in response to the appellant's claim of entitlement to service connection for a lung disorder.  See 38 U.S.C.A. § 7109(a) (West 2002) and 38 C.F.R. § 20.901 (2012).  See generally Wray v. Brown, 7 Vet. App. 488, 493 (1995).  A VHA medical opinion was rendered in March 2013.  In April 2013, the Veteran was given an opportunity to present additional argument, though none was submitted. 

FINDING OF FACT

A preponderance of the evidence is against a finding that the Veteran has a lung disorder, to include COPD, that had its clinical onset or increased in severity in service, and it is not otherwise related to active service or proximately due to service-connected disability. 


CONCLUSION OF LAW

The criteria for service connection for a lung disorder, including COPD, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act (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).  

In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (court) held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, this Veterans Law Judge outlined the issue on appeal and elicited testimony designed to help establish the claim.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing.

Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

VCAA 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).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent letters in April 2004, June and December 2005, November 2007, and December 2009, that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  He was not expressly informed of how VA assigns an appropriate disability rating or effective date in connection with the present appeal, although a May 2006 letter regarding another matter provided notice consistent with the court's holding in Dingess.  However, given that the instant decision denies the claim of service connection, no disability rating or effective date will be assigned.  Thus, absence of Dingess notice is moot.  Accordingly, no further development is required with respect to the duty to notify.

Next, VA has a duty to assist the Veteran in the development of his claim.  This duty includes assisting him in the procurement of 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.  All reasonably identified and available VA and non-VA medical records were obtained.  A review of the Veteran's Virtual VA electronic file does not reveal any additional evidence regarding the claim for service connection for a lung disorder.

The purpose of the October 2009 remand was to afford the Veteran a VA examination and obtaining records considered by the Social Security Administration (SSA) and recent VA treatment records.  There was substantial compliance with the Board's remand as the Veteran was scheduled for VA examination in June 2010, and records considered by the SSA and VA medical records, dated to January 2010, were obtained.

In January 2012, the Board remanded the Veteran's case to the RO for further development that included obtaining an Addendum opinion from the June 2010 VA examiner (or another physician).  There has been substantial compliance with the Board's 2012 remand as the Veteran was scheduled for VA examination in February 2012.

Thereafter, upon review of the record and the February 2012 VA examination report, the Board obtained a VHA opinion regarding the claim of service connection for a lung disorder, including COPD.  A copy of the VHA report was provided to the Veteran and his representative in April 2013 and no further argument or evidence was submitted on the Veteran's behalf.

The Board finds that the March 2013 VHA report is adequate for rating purposes as the claims file was reviewed, the examiner considered the pertinent history, provided clinical findings and diagnoses, and offered an etiological opinion with rationale from which the Board can reach a fair determination.  Accordingly, the records satisfy the provisions of 38 C.F.R. § 3.326 (2012).  The March 2013 VHA report makes up for the deficiencies in the June 2010 and February 2012 VA examination reports regarding the service connection claim on appeal.  
The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and non-VA treatment and examinations, and records considered by the SSA in its award of disability benefits in June 2003 due to affective and mood disorders and anxiety related disorders.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  

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 claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Factual Background and Legal Analysis

In written statements and oral testimony in support of his claim, the Veteran asserts that he has a lung disorder, including COPD, that is due to his military service including exposure to Agent Orange, or to his service-connected coronary artery disease.  Service connection for coronary artery disease was granted by the RO in an August 2011 rating decision.  During his May 2009 Board hearing, the Veteran testified that he had walking pneumonia during service and was told that his lungs were scarred because of the diagnosis.  See Board hearing transcript at page 12.  He stated that his respiratory problems began in approximately 1995.  Id. at 17. 

Upon review of the evidence of record, and after considering the laws and regulations applicable to the Veteran's claim, the Board finds that service connection is not warranted, as will be discussed below.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the analysis below will focus specifically on what the evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant

Under 38 U.S.C.A. §§ 1110 and 1131; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service.  

Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (to the effect that the theory of continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)).  

Case law has established that lay 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).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

To establish a right to compensation for a present disability, a veteran must show: "(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" - the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  This is a direct service connection theory of entitlement.

Certain chronic diseases may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service.  See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  This is also a direct service connection theory of entitlement.

In addition, secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310(a).  With regard to the matter of establishing service connection for a disability on a secondary basis, the court has held that there must be evidence sufficent to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Id.; see also 38 C.F.R. § 3.310(b).  With regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 

Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible.  

However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, he is not competent to provide evidence as to more complex medical questions, such as the etiology of pulmonary pathology, as is the case here.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991).  While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement.  See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). 

Here, the Veteran has variously asserted that his claimed lung disorder may be due to exposure to Agent Orange.  In a July 2004 signed statement, his ex-wife, who apparently had medical training as a nurse (according to the Veteran's July 2004 statement), related his lung disorder to his Agent Orange exposure.

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 sub acute 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 do not include COPD.  38 C.F.R. § 3.309(e). 
	
Specifically, the Secretary of VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for enumerated other disorders, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted.  See, e.g., Veterans and Agent Orange Update: Update 2010 (Update 2010), 77 Fed. Reg. 47924-8 (Aug. 10, 2012).  See also Veterans and Agent Orange Update: Update 2008 (Update 2008), 75 Fed. Reg. 81,332 -335 (Dec. 27, 2010); Veterans and Agent Orange: Update 2006 (2007); Notice, 68 Fed. Reg. 27,630-41 (May 20, 2003); 72 Fed. Reg. 32,395-407 (June 1, 2007); and Notices at 61 Fed. Reg. 57,586 -589 (1996); 64 Fed. Reg. 59,232 -243 (1999); and 67 Fed. Reg. 42,600 -608 (June 24, 2002). 

Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  Thus, presumption is not the sole method for showing causation. 

In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements.  First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam era.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e), or otherwise establish a nexus to service.  See Brock v. Brown, 10 Vet. App. 155, 162 (1997). 

The first determination to be clarified is whether the Veteran was exposed to Agent Orange.  The above-described presumptions apply only to veterans who actually served on the land mass of the Republic of Vietnam. 

Here, the Veteran's service records show that he served in the Republic of Vietnam from March 1969 to November 1970.  Therefore, he is presumed to have been exposed to herbicides during active duty. 

The next question for consideration is whether the Veteran has a disease or disorder that is positively associated with exposure to Agent Orange or is otherwise related thereto. On this point, the objective medical evidence fails to demonstrate that he has a disease associated with exposure to Agent Orange or is otherwise related thereto and he has not established a nexus between his claimed lung disorder, including COPD, and military service including a service-connected disability.

A veteran is presumed in sound condition except for defects noted when examined and accepted for service.  Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304; VAOPGCPREC 3-2003. 

In VAOGCPREC 3-2003, the VA's General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service.  The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition.  See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) and Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). 

In sum, the law as interpreted under Cotant v. Principi, 17 Vet. App. at 116 and VAOPGCPREC 3-2003 mandates that, to rebut the presumption of sound condition upon entry into service under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  See Wagner v. Principi, 370 F.3d. at 1096. 

Aggravation is not conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). 

Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened.  Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  Thus, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required.  Routen v. Brown, 10 Vet. App. 183, 189 (1997); Verdon v. Brown, 8 Vet. App. 529, 538 (1996). 

In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) it was clarified that the presumption applies when a veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111.  Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based-here, the period of active duty.  See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991))).  In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based. 

Service treatment records do not include a report of the Veteran's physical examination prior to entering military service and the presumption of soundness does not attach.  See Smith v. Shinseki and Crowe v. Brown, supra.

Clinical records reveal that, in April 1969, the Veteran was hospitalized for treatment of a productive cough.  He was afebrile, with a normal chest examination and white blood cell count, according to the February 2012 VA examination report, discussed infra.  Results of a chest x-ray showed some small rounded calcific densities that were suggestive of old healed granuloma disease.  It was noted that the calcific granuloma probably represented histoplasmosis, as the Veteran's skin test for that condition was positive and he came from an endemic area (Tennessee).  

Based on the foregoing, and in light of the February 2012 VA examiner's opinion, discussed infra, the Board concludes that the Veteran's calcified nodule noted in the April 1969 chest x-ray report existed prior to service.  The objective evidence of record also shows that it was not permanently worsened or aggravated by service. 

Service clinical records show that, in April 1969, the Veteran's admission diagnosis was a pulmonary granuloma and his discharge diagnosis was chronic bronchitis.

Thereafter, the Veteran was repeatedly seen for complaints of upper respiratory problems, including a productive cough, that were assessed as bronchitis or an upper respiratory infection.  His tobacco use was thought to be a contributing factor for his respiratory complaints.  In April 1970, he was treated for a viral upper respiratory infection and, in December 1970, the clinical impression was bronchitis.  When examined for reenlistment in July 1971, the Veteran's lungs and chest were normal and results of a chest x-ray were within normal limits.

On a Report of Medical History completed in December 1971, the Veteran reported having shortness of breath and a pulmonary granuloma and denied having a chronic cough.  The physician noted the Veteran's history of bronchitis.  January and March 1972 service examination reports show that his lungs and chest were normal, and results of chest x-rays were within normal limits. 

On a Report of Medical History completed in March 1974, the Veteran denied having shortness of breath or a chronic cough and reported that he was hospitalized in April 1967 in Vietnam for pneumonia.  When examined at that time, his lungs and chest were normal and a chest x-ray was within normal limits.  On examination for discharge in July 1975, the Veteran's lungs and chest were normal and results of a chest x-ray performed at that time were normal.

Post service, VA and non-VA medical records, dated from 1986 to 2013, reflect a history of smoking two to three packs of cigarettes a day for nearly 45 years and physicians' repeated advice to quit.  The Veteran told clinicians, and testified, that he developed shortness of breath and respiratory symtoms in the mid-1990s.  Records indicate that the Veteran reportedly stopped smoking for brief periods in approximately 1994, 2000, 2002, and 2005 and then resumed smoking approximately one pack of cigarettes a day for about another year.

Private and VA radiology reports of chest x-rays continued to show the calcified granuloma in the Veteran's lung.  See e.g., March 1987 private chest x-ray report with an impression of a calcific granulomatous disease with no active disease and no significant change; and a September 1988 private chest x-ray report with an impression of probably old granulomatous disease.

A May 1991 VA Agent Orange examination report does not discuss complaints or findings of a respiratory disorder. 

A November 1994 VA medical record includes the Veteran's complaint of bad periods of shortness of breath for four or five weeks without a cough.  He had a history of a pulmonary granuloma and stopped smoking in June.  It was noted that a chest x-ray showed a calcified granuloma in the lower left lung but was otherwise within normal limits.  

A February 28, 2002 VA medical record shows that the Veteran's medical problems included COPD.  His wife reported that he had a cough with blood-tinged sputum that was worsening and restarted smoking a pack of cigarettes a day.  

Results of a chest x-ray taken by VA in September 2002 showed a normal chest aside from a known solitary dense, peripheral round pulmonary nodule in the posterior or lateral basal segment of the left lower lobe that was about 8 millimeters in diameter.  The nodule had the radiographic characteristics of a granuloma.  

September 2002 VA medical records show that the Veteran reported that he recently stopped smoking.  He also said that he had COPD, but there were no pulmonary function tests on record.  It was noted that he had a long history of smoking and quit two years earlier.  He was advised to continue not using cigarettes as they promoted COPD like nothing else.

According to an October 4, 2002 VA pulmonary consult record, the Veteran was seen on September 30, 2002.  His chest x-ray showed a densely calcified, smooth nodule in the left lung that was a greater than 99.9 percent chance of being benign.  There was no reason for further follow-up of that lesion.  The Veteran had quit smoking the previous year and was encouraged to remain smoke free.

Private medical records dated in February 2003 show that the Veteran was hospitalized for treatment of a COPD exacerbation.  Results of computer tomography (CT) scan of his chest revealed emphysema and the calcification, but his lungs were otherwise free of pleural effusions, masses, and infiltrates, according to the February 2012 VA examination report, discussed infra..  

An April 2003 private CT report includes an impression of patch infiltrate now identified at the left lung base with mild discoid atelectasis.  Findings were consistent with the diagnosis of left lower lobe pneumonia.  A 1 centimeter (cm.) granuloma in the left lower lobe was noted.

February 2004 VA medical records reveal that the Veteran was evaluated by pulmonary medicine clinic for dyspnea.  Results of pulmonary function tests revealed dominant restriction and the impression was that his dyspnea was primarily the result of severe diaphragmatic restriction imposed by his massive obesity.  There was also some possible evidence of small airways obstruction thought to be smoking-related.  

During an April 1, 2004 VA PTSD examination, the Veteran gave a history of having whooping cough at age 10.  Results psychological tests performed at the time demonstrated a tendency toward malingering.

April 16, 2004 VA medical records show that the Veteran was seen in the emergency room for complaints of chest pain.  His past medical history included COPD.  He used to smoke up to two packs cigarettes a day for a short time, but quit some time ago.  When seen on April 28, 2004, it was noted that he had a recent history of pneumonia diagnosed in the emergency room and that he stopped smoking and gained weight. 

A calcified granuloma was noted in January, March, and July 2004 VA chest x-ray reports.

A July 26, 2004 VA cardiac catherization pre-evaluation record includes a medical history of asthma and COPD, emphysematous type, diagnosed by pulmonary function tests in 1996.

A January 13, 2005 VA outpatient dental record shows that the Veteran's wife reported that he started smoking again, due to stress, after having stopped for a year.

When seen in the VA outpatient clinic on March 13, 2006, the Veteran complained of shortness of breath and reported that he recently had stopped smoking and was gaining weight.

According to a September 26, 2006 VA medical record, the Veteran felt short of breath with any exertion.  He was short of breath since 1999.  He quit smoking three months earlier.  The assessment included COPD.

The Veteran was seen by a VA clinic pulmonologist in January 2007.  Results of pulmonary function tests revealed severe restriction with no obstruction.  The impression was that his dyspnea was multifactorial, with the major contribution combing from obesity-related restriction with obstructive sleep apnea and coronary artery disease also playing possible roles.  

The Veteran was evaluated by a pulmonologist in the VA outpatient clinic on March 20, 2007, for complaints of shortness of breath.  He had a history of smoking two to three packs of cigarettes a day for 46 years and quit eight weeks earlier.  The Veteran had a history of shortness of breath for ten years.  He was 5 feet 11 inches tall, presently weighed 316 pounds, and his normal weight was 220 pounds.  The Veteran said he had pneumonia four times in the past.  

The impression was dyspnea that was multifactorial with severe restrictive ventilatory defect from morbid obesity, right heart failure from severe obstructive sleep apnea, severe detraining from morbid obesity, and known coronary artery disease.  It was also noted that the Veteran was exposed to Agent Orange in the past and it was "unclear to what extent that may be playing a role."

A March 2007 VA medical record Addendum reflects that the Veteran had restarted smoking.

In June 2010, the Veteran underwent VA respiratory examination.  It was noted that the onset of his COPD was in 2003.  It was also noted that the Veteran was a three pack per day smoker and started smoking when he was eight years old.  Upon clinical evaluation, the diagnosis was COPD that was less likely as not (less than 50/50 probability) caused by or a result of military service.  

The VA examiner explained that the Veteran reported an extensive smoking history and this was consistent throughout his records.  In the VA examiner's opinion, it was more likely that the Veteran's extensive smoking history, and not his military service, was responsible for his development of COPD.  The Veteran reported beginning smoking as a youth and this was consistent with the development of this condition.

The Veteran was privately hospitalized in February 2011 with diarrhea and protracted vomiting.  Results of a chest CT scan performed at admission revealed a new ground glass infiltrate in the lingual that was non-specific.  A six month follow up CT scan was recommended.  

The CT scan performed in June 2011 by VA revealed no change in the lingular density with new patch airspace opacities in the left lung that favored an inflammatory process.  The clinical presentation then was thought to be consistent with community acquired pneumonia, according to the February 2012 VA examination report, discussed infra.  The Veteran was treated with antibiotic therapy.
In February 2012, the Veteran underwent another VA respiratory examination.  He was uncertain of the date of onset of his COPD but believed it started in the early 1990s.  He also had a pulmonary granuloma that was first documented in 1969 with no manifestations or clinical consequences.  The examiner reviewed the Veteran's medical history, including a notation in psychiatric examinations of a "tendency toward malingering."  Results of a chest x-ray performed in February 2012 included an enlarged cardiomediastinal silhouette with no consolidation or effusion.  The pulmonary vasculature was within normal limits with a calcified granuloma in the left lower lobe.  The impression was mild cardiomegaly with no acute cardiopulmonary process.

The clinical diagnoses were dyspnea, obesity, and COPD.  The VA examiner noted that the 1 cm nodule was first mentioned in the April 1969 chest x-ray report and described as a "pulmonary granuloma."  According to the examiner, while there was a high probability that this was a granuloma, all it really was, in fact, was a 1 cm calcified nodule.  The VA examiner noted that such lesions were "common incidental findings"; (with) prior exposure to the spores of histoplasma being the most common cause in some parts of this country including Tennessee where the Veteran grew up.  This particular lesion was calcified at the time it was first mentioned in 1969, suggesting it was present for some years prior to this.  

Further, the VA examiner commented that, while the presence of this densely calcified lesion might-in the strictest sense-infer the presence of some preexistent "disease," it was more accurate to view it as a successful reaction by the body to wall off and contain the foreign matter.  In the vast majority of cases, this was a subclinical reaction (granuloma formation with subsequent calcification) that rarely led to problems then or later in life.  The positive skin test only reflected exposure to the agent and did not indicate active disease.  A positive histoplasma skin test would not be unusual for a person native to an endemic area.  This particular lesion remained unchanged over the decades since.  Over the years a few chest x-ray examinations reported as normal did not indicate the disappearance and reappearance of the density but, instead, reflected the dignity with which most radiologists regard such calcified long-standing lesions.
Moreover, the VA examiner stated that, over the past two decades, the decline in the Veteran's respiratory status paralleled the rise in his weight and accumulation of pack/years smoked.  There was a similar pattern with the worsening in his obstructive sleep apnea and related manifestations.  According to the VA examiner, "[t]he critical role of heavy cigarette smoking and massive obesity as well as frustration with his noncompliance with dietary management and other prescribed therapies...has been a recurrent theme noted by several providers in the record.  Pneumonias are...more common in the setting of substance abuse and lung injury resulting from heavy smoking."  

In the VA examiner's opinion, the Veteran's "respiratory complaints and associated pulmonary function abnormalities are primarily due to subdiaphragmatic restriction imposed by massive central obesity with additional contributions from significant deconditioning; smoking-related [COPD] and possibly associated cardiac disease."  

The VA examiner further stated that the 1 cm. calcified nodule, noted on the April 1969 chest x-ray report from service, represented exposure to histoplasma prior to the Veteran's entry into service in 1967.  The examiner opined that there was and had been "NO active pulmonary disease associated with or resulting from this lesion from the time of its discovery to present day.  NONE of this [Veteran's] respiratory complaints; past respiratory infections; other radiologic abnormalities or pulmonary function derangements are related to this lesion or other small calcifications noted on CT."  The VA examiner also opined that the condition clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.

Additionally, the VA examiner found that none of the Veteran's current respiratory problems, including the calcified nodule or any subsequent pneumonias had their onset during his active service or became manifest within a year following his separation from service.  The examiner also opined that none of the Veteran's current respiratory problems were otherwise causally related to any event or circumstances of his active service, to include Agent Orange exposure, except possibly his heavy smoking.  Moreover, the VA examiner found that the Veteran's condition was less likely as not (less than 50 percent probability) proximately due to or the result of his service-connection condition.

As discussed above, upon review of the evidence in this case, in January 2013, the Board sought an opinion from a VHA medical expert as to whether it was at least as likely as not (50 percent or greater probability) that the Veteran's current lung disorder(s) was proximately caused by his service-connected coronary artery disease.  If not, the expert was asked if it was at least as likely as not that the Veteran's current lung disorder(s) was aggravated (permanently worsened beyond the normal progression of the disease) by his service-connected coronary artery disease.

In the March 2013 opinion, the VHA expert, a pulmonologist, opined that it was "unlikely that [the Veteran's] current lung disorders of COPD...and lung granuloma were caused by his cardiac disease."  The VHA physician noted that the Veteran's 1 cm calcified nodule was first evidenced on chest x-ray in April 1969 and described as a pulmonary granuloma.  The fact that it was calcified demonstrated that the nodule was present for some time prior to that chest x-ray being done.  It was noted that it was frequently seen and incidentally found on patients' chest x-rays throughout the United States.  In the area where the Veteran grew up, in Tennessee, histoplasmosis was the most common cause.  The VHA examiner commented that the granulomas were simply a body's reaction to the foreign invader to isolate and contain it.  The granulomas do not become problematic later in life and do not get re-activated as any active disease.  The Veteran's positive skin test to histoplasmosis revealed that he had exposure to histoplasmosis sometime in his life.  Most inhabitants to a native area would test positive.  The nodule simply represented his body's success at dealing with it.

The VHA physician also opined that the Veteran's COPD was caused by his history of smoking and that cardiac disease did not have a causal association with COPD.  The medical specialist commented that respiratory difficulties can be worsened by the presence of both, but the cardiac disease "does not cause COPD-smoking is the number one association with development of this disease."  According to the VHA medical expert, respiratory infections were frequently worsened in patients with tobacco use.  The lung's inherent structural immunity was compromised by the cellular changes caused by tobacco use.  The more a patient smoked, the worse those conditions got.  The Veteran admitted to smoking since he was young and continued smoking for several years after.  This was not related to his time in service or aggravated by his time in service.  According to the VHA examiner, "the aggravating factor for both COPD and recurrent respiratory infections is more tobacco smoke."  The Veteran had recovered from his pneumonia that he developed while on active duty.  This suggested that subsequent pneumonias were and are unrelated.  The VHA examiner reiterated that the risk of infection was higher in those who smoked.

Finally, the VHA medical specialist opined that "deconditioning, weight gain, sleep apnea, tobacco use, and his COPD likely...caused [the Veteran's] respiratory difficulties."  The VA examiner said that the Veteran's "cardiac disease is not affecting the progress of these diseases."  

While the record shows that the Veteran was treated in service for chronic bronchitis, from which he recovered prior to discharge, the record unequivocally shows that there was no medical evidence of COPD, or any other diagnosed disability, of the lung within one year after service.  The first documented evidence of any type of lung problem after service is from the February 2002 VA medical record that reflects that the Veteran's medical problems included COPD, nearly 30 years after service; although the July 26, 2004 VA cardiac catherization pre-evaluation record includes a medical history of asthma and COPD, emphysematous type, diagnosed by pulmonary function tests in 1996, still nearly 20 years after service.  See Mason v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (to the effect that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Menes v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability).  

As to a calcified granuloma, here there is no report of the Veteran's examination prior to entry into service.  The calcified nodule was diagnosed in April 1969.  But, the February 2012 VA examiner opined that the granuloma existed prior to military service and, thus, clearly pre-existed service.  The Board finds that a calcified granuloma disability pre-existed active duty. 

The next step of the inquiry is to determine whether a calcified granuloma disability was aggravated in service.  A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition.  VAOPGCPREC 3-2003 (July 16, 2003).

There is no competent evidence in the Veteran's service medical records that his pre-existing calcified granuloma disorder was aggravated during active service.  His service medical records are devoid of any reference to medical treatment associated with or due to the granuloma.  There is no competent evidence refuting this fact. 

More significantly, the February 2012 VA examiner who reviewed the claims files and performed a clinical evaluation, found without equivocation, that the Veteran's calcified granuloma disorder was not aggravated by service.  Rather, the 2012 VA and 2013 VHA examiners explained that the calcified granuloma was present for some time prior to the Veteran's April 1969 chest x-ray in service.  In the area where the Veteran grew up, in Tennessee, histoplasmosis was the most common cause.  The granulomas were the body's reaction to the foreign invader to isolate and contain it.  They do not become problematic later in life and do not get re-activated as any active disease.  As the Veteran had a positive skin test to histoplasmosis, he had exposure to histoplasmosis sometime in his life.  Most inhabitants to a native area would test positive.  The calcified granuloma simply represented the Veteran's body's success at dealing with it.

As to the issue of secondary service connection, the only probative opinion of record is that of the March 2013 VHA examiner who opined that the Veteran's COPD was less likely as not caused by or the result of the Veteran's service-connected coronary artery disease.  According to the VHA examiner, the Veteran's COPD was caused by his history of smoking.  The examiner stated that cardiac disease did not have a causal association with COPD.  It was noted that respiratory difficulties can be worsened by the presence of both, but the cardiac disease did not cause COPD, smoking was the number one association with the development of this disease.  The Veteran admitted to smoking since he was young and continued smoking for several years after.  The aggravating factor for both COPD and recurrent respiratory infections was more tobacco smoke. 

The VHA examiner noted that the Veteran recovered from his pneumonia (bronchitis) in service that suggested that subsequent pneumonias were and are unrelated.  The examiner also noted that the risk of infection was higher in those who smoked.  In the VHA examiner's opinion, "deconditioning, weight gain, sleep apnea, tobacco use, and his COPD likely...caused [the Veteran's] respiratory difficulties."  The VHA examiner stated that the Veteran's "cardiac disease is not affecting the progress of these diseases."  The VA examiner provided a clear rationale to support that opinion and thus it is highly probative.  There is no competent evidence to contradict this opinion.  

Where a medical expert has fairly considered all the evidence, his opinion may be accepted as an adequate statement of the reasons and bases for a decision when the Board adopts such an opinion.  Wray v. Brown, 7 Vet. App. at 493.  The Board does, in fact, adopt the VHA specialist's opinion on which it bases its determination that service connection for a lung disorder including COPD is not warranted. 

Since the VHA physician's opinion was based on a review of the pertinent medical history, and was supported by sound rationale, it provides compelling evidence against the appellant's claim.  The Board emphasizes that the VHA medical expert provided a valid medical analysis to the significant facts of this case in reaching her conclusion.  In other words, the VHA physician did not only provide data and conclusions, but also provided a clear and reasoned analysis that the court has held is where most of the probative value of a medical opinion comes is derived.  See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008); see also Wray v. Brown, 7 Vet. App. at 493.

The Veteran contends that service connection should be granted for a lung disorder, including COPD.  The Board recognizes that records show that the Veteran's ex-wife evidently had medical training as a nurse and provided a written opinion in support of his claim, relating a lung disorder to exposure to Agent Orange.  However, there is no evidence that she has the specialized medical expertise needed to render a professional opinion as to the etiology of the disability that is the subject of this appeal.  To the extent that she has provided a medical opinion, the Board finds that it is outweighed by the other medical evidence of record provided by medical personnel with a greater level of training.  Black v. Brown, 10 Vet. App. 279 (1997); Goss v. Brown, 9 Vet. App. 109 (1996).  Moreover, the other opinions, and in particular those offered in 2012 and 2013, were accompanied by a much more detailed rationale that considered very specific aspects of the Veteran's medical history.

In the absence of any competent evidence of a chronic lung disorder due to military service including service-connected disability, the Board must conclude that service connection for a lung disability, including COPD, is not warranted.

In denying service connection as to the claim on appeal, the Board has considered the Veteran's contention that a relationship exists between his current lung disorder, and military service.  In adjudicating this claim, the Board must assess the Veteran's competence and credibility.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). 

In Barr v. Nicholson, 21 Vet. App. 303 (2007), the court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge.  See also 38 C.F.R. § 3.159(a)(2) (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 the facts or circumstances and conveys matters that can be observed and described by a lay person). 

The Veteran is competent to describe his observable symptoms, such as shortness of breath.  However, he is not competent to make a statement of causation that is a medical determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  To the extent he is claiming that lung problems have persisted since service, this is inconsistent with the overall record, which reflects that his lung symptomatology manifested after service. 

While records show that the Veteran was treated in service for a productive cough and various episodes of bronchitis and upper respiratory infections during military service, a lung abnormality was not noted during service examination for discharge in 1975.  The post service records show that the Veteran's lung problems apparently started in approximately the 1990s, nearly 20 years after his discharge from active service.  See Maxson v. Gober, 230 F.3d at 1333; see also Mense v. Derwinski, 1 Vet. App. at 354.  

The Board recognizes that the absence of documented post-service treatment cannot, by itself, invalidate the Veteran's claims of continuous symptomatology.  However, to the extent that he is claiming continuity of lung symptoms since service, he is not a reliable historian.  He made no mention of his lung problems in 1975 during his service examination for separation, and examination of his chest and lungs at that time was normal.  He has not explained why he failed to mention pertinent difficulty when examined pursuant to service requirements.  The Veteran told the June 2010 VA examiner that his COPD started in 2003, and told the February 2012 VA examiner that his lung problems started in approximately the 1990s.  He has given differing accounts of his smoking history to treating clinicians.  The Board does not find that there is credible evidence of continuity of symptomatology present in this case.  In any event, as the record fails to establish a diagnosis of a chronic disease under 38 C.F.R. § 3.309(a), continuity of symptomatology is not a valid basis for a grant of service connection in this case.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

Moreover, the Veteran is not competent to state that he has COPD due military service or to service-connected coronary artery disease, or another pulmonary disorder.  The clinical pathology of lung disorders is not readily recognizable by a layman, such as varicose veins or acne.  See Jandreau v. Nicholson.  Even medical professionals rely on laboratory test results, x-rays, and other diagnostic tools to diagnose lung disorders, including COPD.

Again, the lay statements do not here establish that a current lung disability is related to service.  Moreover, as already stated, the greater weight of the medical evidence finds otherwise.  Indeed, the March 2013 VHA examiner, who reviewed the Veteran's in-service treatment records and his post service medical records concluded that his COPD was less likely than not due to his service-connected coronary artery disease, and most likely due to the smoking.  The VHA examiner's opinion is entirely consistent with that of the June 2010 and February 2012 VA examiners.  The Veteran's contentions are outweighed by the medical evidence and opinion of the March 2013 VHA examiner that reflects that he did not have a lung disorder related to military service or to his service-connected coronary artery disease.  The Veteran's contentions as to etiology are not deemed competent and thus are not probative. 

Here, the Board is left with reported treatment for a productive cough, bronchitis, and upper respiratory infections in service, but no reported complaints or findings of a diagnosed lung disorder after service until 2002 and a VHA medical opinion to the effect that the Veteran did not have a lung disorder due to military service or his service-connected coronary artery disease.  The questions involved regarding causation are medical in nature.  As discussed above, the medical opinion of the March 2013 VHA examiner (based on a review of the claims file and with knowledge of the Veteran's in-service duties and in-service complaints) was negative.  

In sum, a clear preponderance of the objective and probative medical evidence of record is against the Veteran's claim for service connection for a lung disorder, including COPD, and his claim must be denied.  The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim.  Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001).

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ORDER

Service connection for a lung disorder, including COPD, is denied.


____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs