Citation Nr: 1325790 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 04-14 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to the service-connected sinusitis. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from May 1961 to May 1965 and from August 1966 to August 1971. He was enlisted in the Oklahoma National Guard from July 1986 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The case was remanded several times, most recently in May 2013 to obtain an addendum medical opinion from a November 2012 VA examiner. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Since the last supplemental statement of the case (SSOC), additional evidence was received, in the form of a statement from the Veteran, at the Appeals Management Center (AMC) prior to the case being transferred back to the Board. Part of the statement is merely cumulative or duplicative of information already in the claims file and therefore, considered by the RO. To the extent that the statement indicates that the Veteran believes that his COPD is due to herbicide exposure, which had not been previously considered by the RO, in connection with another service connection claim, the RO had already determined that the Veteran was not exposed to herbicides in service. Therefore, the RO has already addressed the Veteran's contentions of herbicide exposure. Consequently, a remand is not necessary. 38 C.F.R. § 19.37 (2012). FINDING OF FACT COPD was not present during service and the currently diagnosed COPD did not develop as a result of any incident during service, including the service-connected sinusitis. CONCLUSION OF LAW COPD was not incurred or aggravated in service, and is not proximately due to or the result of the service-connected sinusitis. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The 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 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was notified in letters dated in August 2002, January 2008 and January 2011 regarding the type of evidence necessary to establish his claim. He was instructed how to establish service connection on both direct and secondary bases. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The January 2008 and January 2011 letters notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), personnel records, post-service medical records and also secured examinations in furtherance of his claim. A pertinent VA examination was obtained in November 2012 with a May 2013 addendum opinion. 38 C.F.R. § 3.159(c)(4). The VA examination and addendum opinion obtained in this case is sufficient, as the examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorder. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis The Veteran contends that he has COPD that is related to his service. Specifically, he contends that COPD is due to tobacco use that began in service or is secondary to his service-connected sinusitis. See, e.g., July 2002 claim, October 1996 treatment record. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Furthermore, any disability that is proximately due to or the result of a service-connected disease or injury is considered service connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a). In this regard, the Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310 during the pendency of this appeal. See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court ruling in Allen v. Brown, 7 Vet. App. 439 (1995), it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the change amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. A review of the Veteran's STRs from his two periods of active duty do not show any treatment for, or diagnosis of, COPD or any other respiratory disorder. There is no indication that the Veteran incurred any event, injury or disease to his lungs during his periods of active duty. His July 1986 enlistment examination for his National Guard service shows that he had abnormal lungs and chest. Low Forced Vital Capacity (FVC) was noted. A Pulmonary Function Test (PFT) also in July 1986 did not show a diagnosis of COPD or any other respiratory disorder. In his July 1986 report of medical history, the Veteran denied symptoms such as shortness of breath, pain or pressure in chest and chronic cough. According to post-service medical records, the earliest diagnosis of COPD was in January 1996. At that time, his COPD was indicated to be secondary to either previous history of smoking and pneumonias or he also had some coal dust exposure. A treatment record dated in August 1996 shows that the Veteran had a history of smoking for 23 years until he quit ten years ago. An October 1996 statement from C.M., M.D. shows that the Veteran's COPD may be an extension of his chronic sinus and allergies. No rationale for the opinion was provided. In connection with an earlier claim, the Veteran was afforded a VA examination in December 1996. The examiner noted that service medical records did not indicate frequent complaints of shortness of breath or other pulmonary related symptomatology. The Veteran stated that in the last ten years, he had developed shortness of breath and had some difficulty with breathing. He was diagnosed with COPD. The examiner opined that it was more likely a result of his many years of cigarette smoking. His history was consistent with reactive airway disease, which might be related to an allergic etiology. Therefore, his COPD was not due to the sinus condition. A record dated in August 1999 shows a diagnosis of COPD in an ex-smoker. Although the Veteran's treatment records during this appeal show repeated treatment for sinus, allergy and various respiratory problems, no other opinions regarding the etiology of his COPD was provided. The Veteran was afforded a VA examination in May 2011. Since the examiner found in the chest medicine notes no evidence of COPD, they did not wish to carry that diagnosis forward. Instead, the examiner diagnosed the Veteran with chronic sinusitis and bronchial asthma. A new VA examination was obtained in November 2012. The Veteran was diagnosed with asthma, but not with COPD. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was that the Veteran stated that he did not become symptomatic with breathing problems until about 1990. That was after his period of active duty and guard duty. In addition, his STRs did not indicate that he had symptoms consistent with COPD (asthma) while he was on active duty. The examiner also opined that the claimed condition was less likely than not proximately due to or the result of his service-connected condition. The rationale was that sinusitis does not cause COPD. Although both conditions might cause some of the same symptoms, i.e., difficulty breathing, they were two separate and distinct conditions with different etiologies. An addendum opinion from the November 2012 examiner was obtained in May 2013 to determine whether the Veteran does in fact have COPD; and if so, whether it was aggravated by his service-connected sinusitis. The Veteran was diagnosed with COPD. The examiner noted that PFTs of 2003 showed that he already had abnormalities. The examiner opined that sinusitis was a separate condition, affecting the upper respiratory tract. It was not pathophysiologically associated with COPD, which affects the lower respiratory tract, and does not cause or aggravate COPD. Based on a review of the evidence, the Board concludes that service connection for COPD on direct and secondary bases is not warranted. Although the evidence shows that the Veteran currently has COPD, it does not show that it is related to his military service, to include being secondary to his service-connected sinusitis. Initially, regarding service connection on a direct basis, the evidence does not show that the Veteran incurred any event, injury or disease to his lungs aside from smoking or that his COPD had its onset in service. While the Veteran has reported that he began smoking in service, see, e.g., July 2002 claim, for claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the Veteran's use of tobacco products during service. 38 C.F.R. § 3.300 (2012). The Veteran's claim was filed in 2002. Therefore, to the extent that the Veteran contends that his COPD is due to in-service tobacco use, service connection on this basis is precluded by law. The evidence fails to show any other event, injury or disease to his lungs during his two periods of active duty. His STRs are silent for any lung complaints. In this case, the contemporaneous service records and post-service treatment records all fail to show that he incurred an event, injury or disease to his lungs other than tobacco smoke in service. Therefore, the evidence does not support a finding that the in-service incurrence or aggravation of an event, injury or disease to his lungs actually occurred. Absent an in-service event, injury or disease, there is no nexus evidence to support a finding of service connection. In this case, the first evidence of respiratory problems is the Veteran's July 1986 National Guard enlistment examination showing a low FVC. However, at that time, no diagnosis of a respiratory disorder was diagnosed. Furthermore, the Veteran himself reported to the November 2012 VA examiner that his breathing problems began in the 1990s, which is consistent with this treatment records. Although the Veteran has post-service treatment records beginning in 1989 associated with the claims file, the first indication of COPD is not until 1996. After reviewing the evidence, the December 1996 examiner opined that the Veteran's STRs did not indicate frequent complaints of shortness of breath or other pulmonary related symptomatology. Although the Veteran had a reduced FVC on testing in 1986, the evidence does not show, nor does he contend, that he had COPD aggravated by a period of active duty for training (ACDUTRA) during his National Guard service. The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of COPD complaints, symptoms, or findings for over two decades between the last period of active service and the earliest evidence of a diagnosis of COPD is itself evidence which tends to show that COPD did not have its onset in service or for many years thereafter. The Board's finding is further supported by the November 2012 examiner's opinion, which shows that the Veteran's COPD is not directly related to his military service. This opinion is uncontradicted. The claims folder contains no competent evidence of COPD being associated with the Veteran's active duty. In reaching this conclusion, the Board observes that none of the Veteran's post-service treatment records indicate that COPD is directly related to his military service. Without evidence of an in-service event, injury, or disease to the Veteran's lungs or competent evidence of an association between COPD and his active duty, service connection for COPD is not warranted on a direct basis. The Board also finds that service connection as secondary to the service-connected sinusitis is also not warranted. Although the Veteran is service connected for sinusitis and has been diagnosed post-service with COPD, the evidence fails to show a nexus between his service-connected disability and his COPD. The Board acknowledges the October 1996 opinion from Dr. C.M. However, the Board finds that this opinion is speculative and lacks probative value. Dr. C.M. opined that that the Veteran's COPD "may be" an extension of chronic sinus and allergies. This opinion equally implies that the Veteran's COPD may not be an extension of his chronic sinus and allergies. Furthermore, no rationale was provided, nor did Dr. C.M. address the Veteran's smoking history. Dr. C.M.'s opinion is speculative and therefore, lacks probative value. See Bloom v. West, 12 Vet. App. 185 (1999) (by using the term "could," without supporting clinical data or other rationale, doctor's opinion simply was too speculative to provide the degree of certainty required for medical opinion). Service connection may not be based on a resort to speculation or possibility, and medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. See 38 C.F.R. § 3.102; Warren v. Brown, 6 Vet. App. 4, 6 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Bostain v. West , 11 Vet. App. 124, 127 (1998). As such, the Board finds that Dr. C.M.'s opinion does not support a finding that the Veteran's COPD is related to his service-connected sinusitis. The probative and non-speculative opinions of record, those of the November 2012 VA examiner, show that the Veteran's sinusitis has not caused or aggravated his COPD. As explained in the May 2013 addendum, sinusitis was a separate condition, affecting the upper respiratory tract. It was not pathophysiologically associated with COPD, which affects the lower respiratory tract, and does not cause or aggravate COPD. No medical professional has provided any non-speculative opinion supported by a rationale indicating that the Veteran's sinusitis caused or aggravates his COPD. In this case, there is no probative and non-speculative nexus evidence to support a finding that the Veteran's COPD is secondary to his service-connected sinusitis. Without evidence of an in-service event, injury, or disease to the Veteran's lungs other than tobacco use or competent evidence of an association between his COPD and his active duty, to include his service-connected sinusitis, service connection for COPD is not warranted. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of COPD falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). The Veteran's own assertions as to etiology have no probative value. Without competent and credible evidence of an association between COPD and the Veteran's active duty, to include being secondary to the service-connected sinusitis, service connection for COPD is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for COPD. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for COPD on a direct basis, and as secondary to the service-connected sinusitis, is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for COPD is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs