Citation Nr: 1333897	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  11-28 968	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York


THE ISSUE

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


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Nichols, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1952 to August 1954.  

This included service during the Korean War when he was awarded the Combat Infantry Badge.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal of a May 2011 RO rating decision.

In March 2012, January 2013, and July 2013, this matter was remanded to the RO for further evidentiary development.  

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.  There are no pertinent documents on Virtual VA.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

1.  The Veteran is not shown to have manifested complaints or findings referable to lung or respiratory condition in service or for many years thereafter.

2.  The currently demonstrated respiratory disorder, to include any COPD, is not shown to be due to an event or incident of the Veteran's period of active service.


CONCLUSION OF LAW

The Veteran does have a respiratory disability, to include COPD, due to disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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, if any, 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).  

Proper notice from VA 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.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. 

In this case, the letter sent to the Veteran in July 2010 fully addressed all notice elements required by Pelegrini v. Principi, 18 Vet. App. 112 (2004) and Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran 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.  

The records show that pertinent, identified private and VA treatment records have been obtained and associated with the file.  As for service treatment records, a July 2010 response from the Personnel Information Exchange System (PIES) documents that the Veteran's service records are unavailable as they are fire-related.  

In cases involving missing or unavailable service treatment records, VA is under a heightened duty to assist the Veteran with respect to the processing of his claim.  VA's heightened duty consists of "consider[ing] the applicability of the benefit of the doubt rule, . . . assist[ing] the claimant in developing the claim, and . . . explain[ing] its decision when the veteran's medical records have been destroyed."  See Cromer v. Nicholson, 19 Vet. App. 215, 217-218 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  

In conjunction with this heightened duty to assist, the RO sent the Veteran a letter in October 2010, and the Veteran was notified of this finding and was provided with an opportunity to submit any service records he might have.  

A January 2011 VA formal finding of unavailability documented the steps undertaken to obtain service treatment records.  The Veteran was notified by letter (10-day letter) in February 2011 informing him of the types of evidence he might submit in lieu of service treatment records for his claim.  The Veteran thereafter did not submit any service treatment records.

As stated, this matter has been previously remanded on three prior occasions for evidentiary development, to include administering a VA examination in May 2013 and obtaining an adequate addendum medical opinion in August 2013.  The VA examiner who conducted the May 2013 VA examination, provided an opinion and addendum medical opinion based on a complete review of the claims folder, to include any findings and opinions of private treating physicians, the Veteran's self-reported military and medical history, findings from the VA examination, and her medical knowledge.  

The Board finds that the RO has substantially complied with its previous remand directives and this matter is ready for Board adjudication.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required).

As discussed, the VCAA provisions have been considered and complied with.  The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA.  

Significantly, the Veteran and his representative have not identified, nor does the record otherwise show, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. 

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 Veteran 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).


Law & Analysis

The Veteran contends that his current respiratory disorder, to include COPD, is related to service during the Korean conflict.

The Veteran has been awarded the Combat Infantryman Badge, indicative of combat participation.  Although a combat veteran, section 1154(b) is not applicable in this instance, as the Veteran does not claim that his current respiratory disorder, to include COPD, was incurred in combat with the enemy.  

Instead, in statements submitted in connection with the appeal, the Veteran asserts that he spent most of his time in a combat zone area in Korea with no running water, plumbing, or electricity.  He avers that these environmental conditions are related to his current respiratory disorder which he was diagnosed with after service.  See 38 U.S.C.A. § 1154(b) (§ 1154(b) does not establish service connection for a combat veteran; it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service); see Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that "a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability").  A claimant must still generally establish the claim by competent evidence tending to show a current disability and a nexus between that disability and those service events.  

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. §§ 3.307, 3.309(a)).  

The Board notes that the Veteran's respiratory disability, to include COPD, is not recognized per 38 C.F.R. § 3.309(a) as a chronic condition.  The Board also notes that there is no diagnosis of bronchiectasis, a chronic pulmonary condition included in 38 C.F.R. § 3.309(a).  See May 2013 VA examination.

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

After careful consideration of the evidence in light of the law and regulations, the Board finds that service connection for a respiratory disorder, to include any COPD, must be denied.

The record reflects that the Veteran was first diagnosed with COPD with acute bronchitis in March 2007.  See private treatment records.  The private treatment records reflect that the Veteran was receiving treatment for his respiratory condition for several years from March 2007 to May 2010.  In sum, the evidence shows that the Veteran had COPD with acute bronchitis that, for the most part, had remained stable and unchanged.  Lungs were clear to auscultation consistently, despite some complaints of being short of breath on occasion.  

A private treatment record in connection with treatment for a digestive condition in June 2010 contained comments on Veteran's respiratory system.  The Veteran denied having asthma, cough, hemoptysis or sputum production, but did note having a surgical history of a lobectomy.

The Veteran submitted a copy of a medical bill (dated in 1999) prepared in connection with the lobectomy.  The record shows that the Veteran underwent surgery for a collapsed and infected lung in December 1998.  In a statement made in connection with his Substantive Appeal (VA Form 9), he indicated that he was treated for a collapsed lung and had surgical repair of his left lung because the lower lobe had sequestered itself.  The Veteran explained that the records were not available at that point.

A February 2000 note from a private treating pulmonary specialist, simply noted findings of a lung abscess and pneumonia.

The Veteran specifically contends that his current respiratory disorder, to include COPD, did not begin in service.  Rather, he avers that the aforementioned conditions of living in a combat zone in Korea contributed to development of his subsequent respiratory problems.  The Veteran links the environmental conditions of service to his current respiratory disability.  

In a July 2011 statement, the Veteran indicated that, while stationed in Korea, he sought treatment at the infirmary due to his "ongoing ailments."  However, he did not indicate that he sought treatment for a respiratory problem.  

An August 2011 statement discussed how the Veteran sought treatment for his digestive problem, such as Crohn's disease, in service.  

In connection with a VA examination in May 2013, the Veteran admitted to the VA examiner that he did not have respiratory issues until approximately 10 years or so earlier.  See infra.

Thus, as the current respiratory disorder did not have its onset in service, the crux of the issue turns on whether a nexus, or a link, between his post-service diagnoses of a respiratory disorder and his service is shown by the evidence of record.

In support of his claim, the Veteran submitted a letter from his longest treating physician for his COPD.  See private treatment records, March 2007 to May 2010.  The letter dated in June 2011 stated that the Veteran had been under his care for several years and that he had "multiple diagnoses that [the physician] believed could have been worsened by his service in the Korean War" including COPD, with a notation that the Veteran had not smoked in his life.  

The Veteran was also afforded a VA examination in May 2013 when he discussed his service and medical history and current symptomatology.  He indicated that he had never smoked and had had problems with his left lung, including a lung abscess and pneumonia.  He mentioned a previous finding of a cystic lung lesion on the left lower lobe and added that a lobectomy was performed in December 1998 to treat his collapsed and infected left lung.  

The Veteran stated that there was no diagnosis of COPD at the time of the surgery.  He first reported treatment for COPD started in May 2007, at a time that the VA examiner noted was more than 50 years after service.  She noted that the Veteran was treated with albuterol in the past as needed, but had not taken the medication in two or three years.  

The Veteran indicated that his breathing was sometimes labored upon increased walking, but that he was not on any oxygen.  The Veteran remarked that he believed his COPD was related to service because of the dust exposure in Korea.  He denied having breathing problems after returning home from Korea and admitted to having problems in the last 10 years or so.  

The pulmonary function tests (measuring or evaluating spirometry, lung volumes, and diffusion) were completed in April 2013 prior to the VA examination.  The VA examiner reviewed these test results, indicating that results showed "FEV-1% predicted."  She noted that spirometry suggested a restrictive defect, that there was no bronchodilator response, and that diffusion was normal.  The diagnosis of COPD in 2007 was noted, and a current diagnosis of restrictive lung disease was made.  The examiner also noted that the Veteran's respiratory conditions did not affect his ability to work.  

In opining that the claimed COPD was less likely as not caused by or a result of his service, the VA examiner reviewed the entire record and considered the current interview and examination of the Veteran.  She reiterated the Veteran's self-reported medical history and statements and commented on the medical opinion submitted in June 2011.  She addressed this opinion by stating that "[h]owever, PTF's on April 2013 suggest[ed] a restrictive defect with a normal diffusion capacity[.]  According to Up-To-Date, '[a] normal DLCO associated with low volumes [was] consistent with an extrapulmonary cause . . . such as obesity, pleural effusion or thickening, neuromuscular weakness, or kyphoscoliosis as opposed to interstitial lung disease.'"  

The examiner noted that the Veteran was obese with a BMI over 43 and also noted his history of lobectomy which might have caused some decreased lung volumes.  She stated that his PFTs did not show an obstructive defect (COPD), so this might have been a misdiagnosis.  

In July 2013, the Board remanded the issue for an addendum opinion from the VA examiner so that she may consider all respiratory pathology, not just COPD, to include left lung abscess and pneumonia, as the records reflected several respiratory conditions in the Veteran's medical history.

With an addendum opinion in August 2013, the VA examiner stated that "it [was] my opinion that his residuals of restrictive lung disease (possible from the lobectomy of the left lung abscess/cyst, but also his obesity), [were] less likely as not caused by his exposure to dust or another harmful inhaled substance from his combat service in the Korean conflict."  

It is the responsibility of the Board to assess the credibility and weight to be given the evidence.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).  

The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993).  The Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  

However, the Board may not reject medical opinions based on its own medical judgment.  Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991).  The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993).  

Thus, on this record, Board accords limited probative value to the private physician's opinion as he did not provide any supporting rationale when he stated that multiple diagnoses, including COPD, could have been worsened by his service in the Korean War.  

Significantly, the Board noted that the Veteran never suggested that he had a respiratory illness in service that worsened with time; only that the conditions of service were contributing factors in the development of his current disability.  The medical opinion in this regard did not provide sufficient details or support for his statement.  

In contrast, the May 2013 VA examiner provided adequate supporting rationale (opinion from May 3013 in conjunction with the addendum in August 2013) for her negative nexus opinion as she considered the complete medical history of the Veteran, including his lay contentions, and attributed his current respiratory disorder as well as previously identified respiratory conditions to other factors (such as obesity) as opposed to an event in service.  

The examiner adequately addressed the pulmonary pathology that existed of record, to include COPD and restrictive lung disease, which she attributed to either the lobectomy due a left lung abscess or his obesity, and provided supporting medical rationale (included in the May 2013 opinion) to support her opinion.  

Thus, the Board finds that the VA examiner's opinion holds greater probative value as to evidence (or lack thereof) of a nexus between the Veteran's disability and service.

In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Board therefore notes at the outset that 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.  See Layno v. Brown, 6 Vet. App 465 (1994).  

It is well settled that "'lay evidence is one type of evidence that must be considered' and that 'competent lay evidence can be sufficient in and of itself.'"  King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006)).  

In addition, the Board emphasizes that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service.  Davidson, 581 F.3d at 1316.

When considering evidence supporting a service connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection.  Id. 

The Board recognizes that the Veteran is competent to state what treating physicians have told him during the course of treatment, to include opinions involving etiology.  See Jandreau v. Nicholson, 492 D. 3d 1372, 1376-77 (Fed.Cir.2007).  However, the Board accords no greater probative value to his lay statements than to the medical statement/opinion itself.  

As previously stated, the Board finds that the May 2013 VA examiner's opinion, to include her addendum opinion in August 2013, to have greater probative value than the statement made by the Veteran's physician with respect to etiology, as the VA examiner fully examined the record and provided a sufficient supporting rationale for her opinion that drew from the medical facts of the Veteran's case and her citations to medical principles guiding her opinion.  

Furthermore, the Board considered the National Institute of Health online article that was submitted by the Veteran in October 2011, which discusses causes and risk factors of COPD.  However, the Board will accord this no greater probative value than the lay statements of the Veteran, and this has less probative value than the evaluations of the VA examiner who has specifically considered the Veteran's history and made pertinent findings that are specific to the Veteran, as opposed to general statements about COPD.

In summary, the more probative evidence of record indicates that the Veteran's current respiratory disorder, to include any COPD, is not related to active military service or events therein.  

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application.  38 C.F.R. § 3.102.


ORDER

Service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) is denied.


____________________________________________
STEPHEN L. WILKINS 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs