Citation Nr: 1331233 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-49 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for an acute breathing disorder, to include as the result of exposure to Agent Orange. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from June 1961 to June 1971. This appeal arises to the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, that denied service connection for a respiratory disability characterized as an acute breathing problem. The Board remanded the case in March 2011 for further development. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDING OF FACT Uncontroverted medical evidence attributes chronic obstructive pulmonary disease to cigarette smoking. CONCLUSION OF LAW Chronic obstructive pulmonary disease was not incurred in or aggravated by active military service, nor may it be presumed to have been caused by exposure to an herbicide agent during active service. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2002); 1112, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board remanded the case for development in March 2011. The United States Court of Appeals for Veterans Claims (Court) held that when the remand orders of the Board are not complied with the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA has complied with all remand orders of the Board. Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed to substantiate the claim. VA must notify the claimant that VA will assist the claimant by making reasonable efforts to obtain all evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A VA notice letter must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits and the notice letter must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). VA's notice requirements that are set forth at 38 U.S.C.A. § 5103(a) and at 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, VA must notify the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA's duty to notify the claimant was satisfied by a letter sent to the claimant in July 2010 with regard to the service connection claim on appeal. The letter addressed all of the notice elements and was sent prior to the October 2010 initial unfavorable decision. VA's duty to assist the Veteran in the development of the claim has also been met. The service treatment records (STRs) and all pertinent VA and private treatment records have been obtained and associated with the file. A VA examination and nexus opinion was obtained in April 2011. See 38 C.F.R. § 3.159(c) (4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The medical opinion obtained in this case is adequate, as it is based on the pertinent medical history of the case. The medical expert considered the pertinent evidence of record and the statements of the claimant and provided a rationale, relying on and citing the records reviewed. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. See 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4) (i); also see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, only a diagnosis offered by a medical professional is a "competent" diagnosis; however, when a condition may be identified by unique or readily identifiable features and capable of lay observation, the lay diagnosis of the disorder is also competent. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). This is especially true where the lay diagnosis supports a later diagnosis offered by a medical professional. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculosis disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The phrase "chronic disease" refers to only those diseases listed under 38 U.S.C.A. § 1101 (3) and 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) ("The clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). Chronic obstructive pulmonary disease, the only diagnosis offered in this case, although chronic in a medical sense, is not a chronic disease listed under 38 U.S.C.A. § 1101 (3) and 38 C.F.R. § 3.309 (a). 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. The evidentiary requirements for service connection are relaxed for combat Veterans. 38 U.S.C.A. § 1154(b). Therefore, the Veteran's status as a combat veteran must be discussed. The Veteran served in Vietnam during the Vietnam War Era. He earned the Vietnam Service Medal, Vietnam Campaign Medal with Device, and his unit earned a Presidential Unit Citation (PUC) while he was assigned. Although the actual citation to accompany the PUC has not been obtained, these military decorations do not conclusively establish that the Veteran participated in combat with the enemy. Moreover, the Veteran has not claimed to have incurred his respiratory disability as a result of combat. Rather, in July 2010, he stated that he first had breathing difficulty after having served in Vietnam. Because the Veteran has not alleged a combat-related injury or disease, it is not necessary to obtain the citation to accompany the PUC, as the relaxed service connection requirements (see Dambach v. Gober, 223 F.3d 1376, 1381 (Fed. Cir. 2000); Collette v. Brown, 82 F.3d 389 (1996)) afforded combat veterans cannot be applied in this case The STRs do not reflect any relevant abnormality at entry into active service. The STRs reflect that the Veteran was treated for various respiratory ailments at various times. These ailments include pharyngitis, bronchitis, tonsillitis, cough, chest pains, colds, and congestion. More recently, the Veteran recalled having been treated for pneumonia during active service. His lungs were normal when he separated from active service. In February 2008 and more recently, a diagnosis of chronic obstructive pulmonary disease was offered. In March 2011, the Board remanded the case for a medical opinion addressing the etiology of chronic obstructive pulmonary disease and/or any other respiratory disorder found. The Veteran underwent a VA pulmonary compensation examination in April 2011. The examining physician reviewed the pertinent medical history, including service in Vietnam with exposure to Agent Orange and possible pneumonia in 1965. The physician discussed the Veteran's post-service cigarette smoking history and found that to be more significant to the outcome of this case. The physician mentioned only chronic obstructive pulmonary disease as a current respiratory disease. The Board therefore concludes that the physician has offered only one diagnosis: chronic obstructive pulmonary disease. The physician related all current respiratory symptoms to chronic obstructive pulmonary disease and then dissociated chronic obstructive pulmonary disease from Agent Orange. The rationale for this conclusion is that it is "more likely" that cigarette smoking has caused chronic obstructive pulmonary disease. Because the physician attributes chronic obstructive pulmonary disease to cigarette smoking, service connection for chronic obstructive pulmonary disease is barred by law, regardless of when chronic obstructive pulmonary disease arose. According to 38 U.S.C.A. § 1103 (a) (West 2002): Notwithstanding any other provision of law, a Veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service for purposes of this title on the basis that it resulted from injury or disease attributable to the use of tobacco products by the Veteran during the Veteran's service. The Board finds the above-mentioned medical opinion persuasive, as it is based on accurate facts and supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The Board must also address the competency, credibility, and probative value of the lay evidence. 38 U.S.C.A. § 7104(d) (1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The lay evidence of record is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity. Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). However, the determination of an issue involving a question of medical expertise requires further analysis of the Veteran's competency. 38 C.F.R. § 3.159; Jandreau, 492 F.3d at 1377. In July 2010, the Veteran stated, "I don't know if agent orange exposure is the cause for my trouble or not. I appreciate for any thing you can do for me. Thank you." His notice of disagreement and substantive appeal also express that position. In his substantive appeal, he also expressed fear of developing lung cancer; however, he has not contended, nor does the evidence reflect, that lung cancer has arisen. Because of the uncontroverted medical evidence that attributes chronic obstructive pulmonary disease to cigarette smoking, the contrary lay evidence of a possible link between chronic obstructive pulmonary disease and active service cannot be afforded any weight in the matter. After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App at 54. The claim for service connection must therefore be denied. ORDER Service connection for chronic obstructive pulmonary disease or any other respiratory disability is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs