Citation Nr: 1334211 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 06-10 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a chronic respiratory/pulmonary disability, to include asthma, emphysema, chronic obstructive pulmonary disease (COPD), and pneumonia. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty in the United States Coast Guard from September 1963 to June 1977, and from November 1977 to March 1978. He had subsequent active duty service in the United States Army from October 1990 to March 1991. This matter is before the Board of Veterans' Appeals (the Board) on appeal of an April 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) at the Portland RO in September 2008. A hearing transcript is associated with the record. In February 2009, October 2011, April 2012, January 2013, and July 2013, the Board remanded claim for additional development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT A chronic respiratory/pulmonary disability, to include asthma, emphysema, COPD, and pneumonia is not shown in service, and no respiratory/pulmonary disability shown during this appeal has not been etiologically related to service. CONCLUSION OF LAW The criteria for service connection for chronic respiratory/pulmonary disability, to include asthma, emphysema, COPD, and pneumonia are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA met its duty to notify the Veteran. The record reflects that VA sent to the Veteran all required notice in letters dated December 2003 and May 2007. The claims were readjudicated following the May 2007 notice, thereby affording the Veteran due process of law. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. Moreover, the United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the Veteran has not demonstrated any prejudicial or harmful error in the VCAA notice. VA met its duty to assist the Veteran in the development of his claim. VA obtained the Veteran's service treatment records along with all other relevant medical treatment records identified by the Veteran to include records associated with his award of Social Security Administration disability benefits. These records have been associated with the claims file. VA further afforded the Veteran an appropriate VA medical examination and has obtained several medical opinions in this matter. The Board previously remanded this case because the VA medical opinions of record were inadequate and because there were outstanding pertinent medical records. The actions requested by Board were completed. VA obtained an appropriate medical opinion dated in March 2013 and those outstanding VA medical records identified by the Veteran as pertinent to his claim. The Board finds that the medical opinion is highly responsive to the Board's remand questions and reflects an understanding of the information sought by the Board to include a complete rationale for the medical opinions rendered. Therefore, having reviewed the medical opinion and supporting rationale, the Board finds substantial compliance with the requirements articulated in the Board's prior remand decisions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Lastly, VA afforded the Veteran a hearing on appeal. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation: (1) explain the issues and (2) suggest the submission of evidence that may have been overlooked. Here, during the Board hearing, the VLJ identified the issue on appeal, asked questions and elicited testimony in order to substantiate the claim, and accepted testimony on the matter of nexus. The VLJ inquired as to the existence of outstanding medical evidence. The Veteran was assisted at the hearing by his representative. The hearing focused on the elements necessary to substantiate the claim. It is noted that the testimony rendered formed the basis for a remand thereafter by the Board. Thus, there was substantial compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2). Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. II. Service Connection Initially, the Board notes the Veteran does not assert that his claimed problems are a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application in this matter. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2013). Service connection may be granted for any disease 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. 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. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). However, the Federal Circuit decision in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), recently held the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). For a claim, as here, filed on or after June 9, 1998, there is an express prohibition against granting service connection for any disability resulting from injury or disease attributable to chronic smoking. 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Analysis The Veteran seeks service connection for a respiratory/pulmonary disability. He avers that chronic respiratory disorders had their onset in service, or are otherwise related to service-to include exposure/inhalation of toxic substances in service to include smoke, dust particles, oil, diesel, natural and chemical fires and asbestos. Specifically, the Veteran contends that his current chronic respiratory/pulmonary disability began around 1968, while on active duty with the U.S. Coast Guard. Throughout his appeal, the Veteran expressed several theories involving the etiology of his current respiratory/pulmonary disorders. The Veteran reported that he worked in an engine room that was filled with smoke, dust particles and oil, and noted that the ventilation system sucked all the diesel fumes into the engine room where he spent a majority of his time. See November 2008 hearing transcript. The Veteran reported asbestos exposure in-service and suggested that this caused his current lung disabilities, noting that he had been stationed on a ship that required innumerable valve replacements involving removing and building asbestos insulation, and that he built insulation around an entire boiler. See February 2004 VA examination. The Veteran also argued that his in-service diagnosis and treatment for pneumonia was the precursor of his current COPD and emphysema. Additionally, the Veteran argued that his in-service fire training contributed to the development of his current COPD and emphysema. He stated that, during fire training, a ship was set on fire and he was required to enter the ship without a breathing apparatus. See August 2005 Statement in Support of Claim. During his February 2004 VA examination, the Veteran stated that his mandatory fire training occurred on three different occasions at Treasure Island, with each school being about one week in duration. The Veteran noted that he was exposed to multiple fires, chemical and natural, without breathing protection. At a September 2008 hearing, the Veteran testified that he believed his respiratory problems began in service or were related to service, and noted that he experienced pneumonia every six weeks to three months, requiring medical treatment. The Veteran's DD Form 214 reveals that he attended the firefighting school on Treasure Island, in San Francisco, California from September 14, 1964 through September 18, 1964. Service treatment reports contain a medical history chart noting that the Veteran had pneumonia during service in July 1970. Service treatment records, to include entrance and discharge medical evaluations, reflect normal clinical evaluations of the lungs. See August 1963, July 1967, May 1968, August 1968, January 1971, June 1973, May 1975, February 1976, March 1977, November 1977, and November 1990 Reports of Medical Examination. Private medical records dated December 1996 to February 1997 note a history of COPD; VA outpatient treatment records contain a November 2002 entry noting COPD exacerbation, and December 2005 private medical records also note a history of COPD and emphysema for the past nine years. Report of VA examination dated in February 2004 reflects a diagnosis for severe COPD. The examiner concluded that "COPD may well be the result primarily of tobacco usage," but noted that "fire training, as described by the veteran, certainly could have potentiated his COPD." The examiner commented that the Veteran had marked COPD, and noted that he smoked heavily for 40 years, two to three packs per day, but that he finally quit in 1996. The examiner further noted that the Veteran's first episode of pneumonia occurred in service; that the Veteran had pneumonia numerous times, including one hospitalization at the Coast Guard Air Station at Port Angeles for two weeks; and that the Veteran reported a chronic cough since then, 20 years of wheezing, and use of an inhaler since 1995. X-ray revealed evidence of COPD but no signs of an acute pneumonic process. Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for a chronic respiratory disability, to include asthma, emphysema, COPD, and pneumonia. A chronic respiratory/pulmonary disability is not shown in service, and the post service respiratory/pulmonary diagnoses-asthma, emphysema, and COPD-are not etiologically related to service. None of the conditions shown during the appeal period are shown to be a residual of the Veteran's in-service pneumonia and/or respiratory infections. None of the conditions shown during the appeal period are shown to be etiologically related to the alleged in-service exposure/inhalation of toxic substances. Service treatment records show that the Veteran was treated for left lower lobe pneumonia in July 1970 with penicillin. He was treated in October 1975 for bronchitis with antibiotics. He was treated in July 1976 for tracheobronchitis with antibiotics. All follow-up chest x-rays are normal. Report of examination (prescreening examination) dated in November 1990 reflects no history of cough or other respiratory disorder. Post service treatment records reflect that the Veteran had a decades long history of smoking one to three packs of cigarettes each day, a habit he quit in 1996, and onset of chronic respiratory/pulmonary problems years after the Veteran's discharge from active duty. The Board accepts that the Veteran is competent to report his symptoms, treatment, and diagnoses as told to him. Layno, supra. See also Falzone v. Brown, 8 Vet.App. 398, 405 (1995). In this regard, 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, 1377 (Fed. Cir. 2007). See also, Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), at 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, in this case, he is not competent to relate any respiratory diagnoses shown during this appeal to his periods of active duty-to include inhalation of toxic substances or fumes, pneumonia, or bronchitis-because this is a complex medical question not susceptible to lay observation, unlike a broken leg, and the Veteran lacks the requisite medical expertise. Id. Although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. Because of the complexity of the particular question(s) involved here and the inability to rendered an nexus opinion based on personal observation, the Board finds that a non-expert medical opinion has no probative value in this matter. The Board has considered the Veteran's report of continuity of symptoms dating from his diagnoses and treatment in service for respiratory problems. However, none of the respiratory/pulmonary conditions for which he seeks service connection are recognized as chronic under 38 C.F.R. § 3.309(a) and, therefore, the provisions pertaining to service connection based on continuity of symptomatology are not for application. As an aside, however, the Board observes that the Veteran's prescreening examination dated in November 1990, which reflects no history of cough or other respiratory disorder, would weigh against the credibility of such an assertion. The Board has considered the favorable February 2004 VA medical opinion, wherein the examiner indicated that the Veteran's "COPD may be the result primarily of tobacco usage," but that "[f]ire training . . . certainly could have potentiated this.'" The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the Board finds that the favorable medical opinion has diminished probative value because it is entirely speculative and offers no basis for the opinion rendered. See Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). The Board assigns greater probative value to the service treatment records that essentially show no chronic respiratory/pulmonary disorder and the March 2013 VA medical opinion, which shows that the Veteran's chronic pulmonary disability, to include emphysema, COPD, and pneumonia are "less likely than not related to your active duty military service." The physician noted that the Veteran's extensive history of smoking tobacco was "the most likely cause of your respiratory and pulmonary conditions." He explained that smoking was the leading cause of COPD and that, "after review of the claims file, no other etiology can be ascertained." The physician accepted the Veteran's report of exposure to toxic substances and fumes as alleged, but indicated that "short-term exposure does not lead to chronic respiratory diseases." Likewise, a VHA medical opinion dated in October 2010 reflects that "It is unlikely (i.e., less than 50 percent probability) that the Veteran's respiratory disability is etiologically related to any incident exposure to toxic substances, exposure to asbestosis, or bacterial pneumonia that occurred during the Veteran's military service creating a propensity toward respiratory illness." With respect to the assertion that the Veteran's current problems represented sequelae of his pneumonia and frequent respiratory infections in service, the March 2013 VA medical opinion reflects that a review of the service treatment records yielded no evidence of any sequelae of these infections; the physician noted that the infections were treated with and responded to antibiotics, and that Army prescreening examinations in November 1990 showed no history of cough or other respiratory disorders. In regards to the Veteran's allegation of asbestos related disease due to service, the March 2013 VA medical opinion indicated that there was no documented evidence in record of asbestosis or a asbestosis related lung disease, noting that all the Veterans chest x rays including the recent chest x ay dated in May 2012 showed no evidence of asbestosis and that a CT of the abdomen dated in September 2012 showed clear lung bases. The Board finds that this evidence is more probative than the Veteran's unsubstantiated medical opinion and the February 2004 VA medical opinion, which is speculative and bereft of any rationale. Service treatment records are highly probative as they reflect the Veteran physical health during his active duty and near in time to his separation. The March 2013 VA medical opinion in highly probative as it was prepared by a physician with consideration of the entire medical history and review of the Veteran's claims file. Furthermore, the March 2013 VA medical opinion includes a medical rationale for the conclusions reached and reflects a thorough review of the record. Lastly, the Board finds that the service treatment records and March 2013 VA medical opinion are highly probative as they were prepared by skilled, neutral, medical professionals. The Veteran has not presented a wholly favorable medical opinion in support of his claim and, although VA provided the statutorily required assistance in this case, the various medical opinions returned in this matter were not favorable to the Veteran's claim. On balance, the weight of the evidence is against the claim. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Accordingly, the claim is denied. ORDER Service connection for a chronic respiratory/pulmonary disability, to include asthma, emphysema, COPD, and pneumonia is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs