Citation Nr: 1333751 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 11-18 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a chronic respiratory disorder, claimed as recurrent pneumonia with lung scarring. ATTORNEY FOR THE BOARD L. McCurdy, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied entitlement to the benefit currently sought on appeal. The United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the appellant's application for benefits listed his claim as one for recurrent pneumonia with lung scarring and he has described symptoms of nasal congestion and a productive cough. Review of the medical evidence of record reveals diagnoses of bronchitis, allergies, chronic obstructive pulmonary disease, and an upper respiratory infection. Thus, the Board has generally characterized the issue as a claim for entitlement to service connection for a chronic respiratory disorder. FINDING OF FACT The preponderance of the evidence fails to establish that an etiological relationship exists between the Veteran's currently-diagnosed respiratory disorder and his military service, to include in-service pneumonia. CONCLUSION OF LAW A chronic respiratory disorder was not incurred or aggravated by active duty military service, and it may not be presumed to have been incurred therein. See 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in June 2008 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in January 2009. Nothing more was required. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, including obtaining service and post-service treatment records pertaining to his claimed disabilities. The Veteran declined the opportunity to present testimony before a Veterans Law Judge. Neither he nor his representative have indicated, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. A VA examination was performed in November 2008, with addendums added in November 2008 and December 2008, in order to obtain medical evidence as to the nature of the claimed disability. To that end, 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 Board finds the November 2008 VA examination adequate as it is predicated on a full reading of the private and VA medical records in the Veteran's claims file, interview of the Veteran, and physical examination, which included clinical testing. The opinion contains sufficient information on the issue on appeal and the rationale is well-reasoned. As noted below, even though the examiner was unable to provide the requested opinions without resorting to speculation, the examiner adequately explained why such an opinion could not be provided. The Board finds that there is no additional development that may be undertaken to assist the examiner in this regard. See Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim. 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). Applicable Law Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Neither chronic obstructive pulmonary disease nor bronchitis (as opposed to bronchiectasis) are listed as qualifying chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Spalding v. Brown, 10 Vet. App. 6, 8 (1996) (bronchiectasis is a chronic dilation of the bronchi marked by fetid breath and paroxysmal coughing with expectoration of mucopurulent matter). As a result, service connection via the demonstration of continuity of symptomatology is not applicable in the present case. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). With regard to the first element of Shedden/Caluza, the medical evidence documents the presence to a current respiratory disorder. Records dated between 1982 and 2003 lists various diagnoses including bronchitis, pneumonia, upper respiratory infections, and allergies. The November 2008 VA examination listed a diagnosis of chronic obstructive pulmonary disease (COPD). The Board notes that this diagnosis was made before results of a pulmonary function test returned recording normal spirometry. However, in giving the benefit of the doubt to the Veteran, the Board finds that the presence of a current respiratory disability has been established. The presence of an in-service disease or injury has also been met. Service treatment records show that the Veteran was treated for pneumonia on March 11, 1969. A March 17, 1969 follow-up note indicated that he was "much improved". Indeed, by the time he was seen in April 1969 for complaints of stomach cramps, there was no report of any respiratory symptoms. His August 1969 discharge examination indicated that his lungs were normal. Turning to the final element under Shedden/Caluza, medical evidence of nexus, facts in the instant case, the first documented post-service reference to respiratory is found in a March 1991 private medical records, wherein the Veteran was treated for bronchitis. The Veteran told the physician that he had two prior episodes of pneumonia and was worried about COPD. In April 1991, the Veteran was treated for nasal drainage but the physician indicated that his lungs were clear and diagnosed him with allergies. In January 1992, the Veteran was diagnosed with bronchitis after complaining that he had chest congestion and a productive cough. The physician indicated that his lungs were clear. In November 1997, the Veteran was treated for an upper respiratory infection that the physician indicated could be caused by allergies. At the VA examination in November 2008, the Veteran indicated that he never utilized tobacco products and had only rare exposure to second hand smoke. He also indicated that he did not have trouble with his lungs until an episode of pneumonia while serving in the Philippines. He endorsed multiple episodes of pneumonia, bronchitis, and upper respiratory infections since that time. He reported that a chest x-ray taken in 1970 or 1971 indicated that he had lung scarring. However, a chest x-ray taken concurrent with the November 2008 examination was noted to be unremarkable except for mild left lung base discoid atelectasis. The examiner noted that the Veteran had a prior chest x-ray in 2001, and that the radiologist found somewhat large volume lungs but the examination was otherwise unremarkable. The 2008 VA examiner found that it would be "pure speculation to state that a single episode of left lower lobe pneumonia in March 1969 was in any way related to the onset of the veteran's chronic obstructive pulmonary disease." The examiner went on to explain that the Veteran's history of being treated for pneumonia or bronchitis once a year does not make it a chronic condition, but rather acute. Furthermore, the examiner stated that the Veteran should have genetic testing to see if he has a genetic predisposition to the development of COPD. However, the examiner found that it would be speculation to say that the Veteran's COPD began in service, and that there is no indication that the Veteran's active military service aggravated any potential congenital development of early lung disease based on a single episode of pneumonia while in service. As indicated, the VA examiner determined that it would be mere speculation to state that the Veteran's active service, to include pneumonia infection, caused his current respiratory disorder (COPD). The events were simply far too remote. Indeed, as noted, the service treatment records show that the in-service pneumonia resolved without any lasting residuals. The examiner also noted that the frequency in which the Veteran reported his post-service respiratory problems/illnesses did not support a finding of a chronic respiratory disorder. Instead, he said the Veteran's report of recurrent pneumonia and bronchitis, which has not been documented, were acute in nature. The Board notes at the outset that opinions that are speculative in nature are insufficient to establish entitlement to service connection. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Rather such opinions are nonprobative, and neither support nor weigh against the Veteran's claim. See Jones, 23 Vet. App. at 389-91. To be certain, when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate. The opinion is adequate only if the examiner sufficiently explains the reasons for this inability. Id. at 389-90. As such, it must be clear from either the examiner's statements or the Board's decision that the examiner has considered "all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves v. Nicholson, 21 Vet. App. 46 (2007). Here, although the November 2008 opinion is speculative, the examiner provides a well-reasoned rationale based on the evidence in the Veteran's claims file, including treatment records and the history given by the Veteran. There was no evidence of a chronic condition in service or post-service. The examiner found the pre-service treatment records indicate only acute disorder diagnoses. Chest X-rays and pulmonary function tests were conducted. It is obvious that there is no additional testing or development that could take place that has not already been undertaken that would materially change the examiner's opinion, as the Veteran's active service occurred many years ago. The examiner has not indicated the need for any additional testing or information. Consideration has been given to the Veteran argument that VA should have afforded him a genetic test. However, a review of the claims file indicates that the VA did perform an Alpha-1-Antitrypsin Deficiency Test in November 2008, which was designed to test enzyme levels for genetic predisposition to COPD. The results were recorded in chart form and do not convey any positive findings. Nevertheless, even before the results of the genetic testing were reported, the examiner opined that the Veteran's military service did not aggravate any potential congenital development of early lung disease. The Board simply finds no basis for addressing the question of aggravation of a preexisting illness/disability as there is no evidence to rebut the presumption of soundness. 38 C.F.R. § 3.306. Next, while not specifically argued, the Board has considered whether the Veteran's respiratory disorder could be to his exposure to herbicide agents. A Veteran who had active military service in Vietnam during the Vietnam era is presumed to have been exposed to an herbicide agent during such service, unless there is affirmative evidence to establish that the Veteran was not so exposed. See 38 U.S.C.A. § 1116 (West 2012); 38 C.F.R. § 3.307(a)(6)(iii) (2013). If such exposure occurred, the Veteran is entitled to a presumption of service connection for certain disorders listed under 39 C.F.R. § 3.309(e). The Board notes that the Veteran's variously diagnosed respiratory conditions, including chronic obstructive pulmonary disease, upper respiratory infection, and bronchitis, are not listed among the disorders entitled to presumptive service connection. See 39 C.F.R. § 3.309(e) (2012). Therefore, despite serving in Vietnam during the Vietnam era, the Veteran's respiratory conditions are not entitled to presumptive service connection. The Veteran argues that his in-service pneumonia infection has led to his current respiratory disorder. 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, respiratory disorders, including COPD, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). COPD is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that chest X-ray, pulmonary function tests and other specific findings are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to endorse symptoms of a chronic cough or breathing problems, there is no indication that the Veteran is competent to etiologically link his in-service pneumonia infection to his COPD, diagnosed several decades his discharge. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating respiratory disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. In light of the above, the Board finds that the probative evidence of record does not demonstrate a nexus between the Veteran's respiratory disorder and active duty military service, and it finds that the third Shedden/Caluza element has not been met. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The benefit sought on appeal is accordingly denied. ORDER Service connection for a chronic respiratory disorder is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs