Citation Nr: 1326773 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 06-35 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from April 1959 to May 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter along with the issue of service connection for sleep apnea was remanded in September 2012 for further development. In March 2013, the RO service-connected pleural disorder, to include pleural thickening, pleural plaques, and pleural fibrosis. The Board denied service connection for sleep apnea in May 2013 and remanded the matter currently on appeal for further action, in light of the RO's March 2013 grant of service connection for pleural disorder. The Board has considered all evidence of record, including that found on Virtual VA. FINDINGS OF FACT 1. The Veteran's current COPD was not manifest in service and is not otherwise causally related to service. 2. The Veteran's current COPD was not caused by, or aggravated by, his service-connected pleural disorder, to include pleural thickening, pleural plaques, and pleural fibrosis. CONCLUSIONS OF LAW The criteria for service connection for COPD are not met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in May 2004. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, as is required by Dingess, the Board notes that the RO sent the Veteran a November 2008 correspondence that fully complied with Dingess. That correspondence also provided the Veteran with secondary service connection VCAA notice. This was followed by subsequent adjudication, curing any notice timing errors. Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for pulmonary disorder in December 2010, October 2012, and July 2013; and afforded the Veteran the opportunity to give testimony before the Board. The examiners reviewed the Veteran's claims folder, examined him, and provided rationales for the opinions. Cumulatively, the examinations were adequate. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's May 2013 remand by examining the Veteran as indicated and readjudicating the claim. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The Veteran appeals the RO's January 2005 decision denying service connection for pulmonary disorder. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran reported in November 2006 that he was exposed to asbestos in service from November 1959 to March 1963, while onboard the U.S.S. CANISTEO. Service connection has been granted for pleural disease. The only other pulmonary disorder shown is COPD, as evidenced by VA examination reports as early as November 2010 diagnosing it. However, the evidence including the service treatment records does not show that the Veteran's COPD was manifest in service and indicates that it is unrelated to service. It appears to have first manifested many years after service. Moreover, the preponderance of the evidence indicates that it was not caused or aggravated by the Veteran's service-connected pleural disease. The evidence is reviewed and discussed in detail below. Private X-rays as late as December 2001 showed pleural thickening or fibrosis but no COPD. On private evaluation in August 2003, the Veteran complained of shortness of breath with cough and congestion, and COPD was assessed. A pulmonary function test in July 2004 showed mild obstructive disease. The Veteran reported in July 2004 that he began experiencing extreme shortness of breath in 2003. In December 2010, a VA examiner reviewed the Veteran's claims folder and considered the Veteran's history, which included the onset of COPD in 2004, and concluded that the Veteran's COPD less likely as not (less than a 50/50 probability) had its onset in or was related to active service or to any in-service disease or injury or asbestos exposure. The reasons given were that even though many former crew members of World War II-era tankers and oilers were most likely exposed to asbestos during their time onboard these ships, and may one day suffer from an asbestos-related illness such as asbestos or mesothelioma, the finding on this Veteran suggested COPD as the cause of his respiratory problem. There were no radiologic findings that suggest asbestos. There was no evidence of COPD during active duty. The most probable risk factors for COPD for the Veteran were tobacco use and working as a welder. An examiner in March 2011 indicated that there were no tests which suggested the presence of asbestos lung damage. Subsequently, private medical records from May 2010 showing pleural disease were received. In June 2012, after reviewing them, the examiner who examined the Veteran in November 2010 reviewed these records and concluded that that evidence did not change the previous diagnosis of COPD or the medical opinions provided. In September 2012, the Board was not persuaded that the examinations had been thorough enough in light of VA guidelines that address some asbestos-related diseases, and the evidence which was of record. Additionally, it noted that the Veteran had, in the interim, suggested in January 2012 that inhaling engine room lubricating oil and second-hand smoke in service may have caused or contributed to his current pulmonary disability. The Board therefore remanded for another VA examination. On VA examination in October 2012, evidence regarding in-service asbestos, the Veteran's smoking history, and post-service radiographic and pulmonary function test evidence was considered, and the examiner concluded that the Veteran had a pleural disorder that was related to his in-service asbestos exposure; but that it was less likely than not that the Veteran's current COPD was incurred in or caused by an in-service injury, event or illness such as engine room lubricating oil fumes or second-hand smoke. Instead, most probably, tobacco use and working as a welder had caused the Veteran's COPD. In March 2013, the RO service-connected pleural disease. In May 2013, as the matter of secondary service connection for COPD as secondary to the Veteran's service-connected pleural disease had not been addressed by VA examination, the Board remanded the case to the RO for such development. On VA examination in July 2013, the examiner reviewed the Veteran's claims folder, considered his medical history and records, and indicated that it was less likely than not that the Veteran's COPD was proximately due to or the result of his service-connected pleural disorder; that it was less likely than not that his pleural disease contributed in any manner to his COPD; and that there was no permanent aggravation of any obstructive process by his pleural condition. The examiner indicated that the Veteran's pleural disease is completely separate anatomically and functionally from his COPD. The pleural disease may cause pain with breathing, but has no effect on the airway patency in the Veteran's case. The examiner noted that the Veteran had a history of extensive smoking, of up to 30 pack years, and this is one of the strongest existing factors for developing COPD. Based on the evidence, the Board concludes that service connection is not warranted for COPD under any theory. It was not manifest in service, and no competent evidence relates it to service or shows that it was caused or aggravated by the Veteran's service-connected pleural disorder. The examiner in 2010 indicated that there was no evidence of it in service and that it was unrelated to in-service disease or injury or asbestos exposure. The examiner in 2012 indicated that it less likely as not had its onset in service or was related to service or to any in-service disease, injury, event, or illness such as engine room lubricating oil fumes or second-hand smoke, and he gave adequate reasons for that opinion. The examiner in 2013 likewise indicated that it was unlikely caused or aggravated by the Veteran's service-connected pleural disease. There is no competent evidence of record indicating that the Veteran's current COPD was manifest in service, related to service, or was caused or aggravated by his service-connected pleural disease. Moreover, any current COPD which was caused by in-service tobacco use may not be service-connected. See 38 U.S.C.A. § 1103 (West 2002). Such provisions indicate that a Veteran's disability shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in service if it resulted from injury or disease attributable to the use of tobacco products by the Veteran during service. While the Veteran may feel that his current COPD is related to service, he does not have the expertise necessary to render the medical nexus opinion required. Medical expertise is required on this complex 377742597medical question. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for COPD is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs