Citation Nr: 1334751	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  13-00 910	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for chronic obstructive pulmonary disease (COPD).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel



INTRODUCTION

The Veteran served on active duty from November 1954 to November 1956.

He appealed to the Board of Veterans' Appeals (Board/BVA) from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In August 2013, the Board granted his claim of entitlement to service connection for tinnitus, but denied his claims for service connection for residuals of cold injury of his left and right upper extremities.  Whereas the Board, instead, remanded this remaining claim for COPD to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development.  This additional development especially included obtaining and associating with the claims file for consideration all outstanding medical treatment or other records, particularly VA treatment records dated since May 2003, and then having him to undergo a VA compensation examination providing a diagnosis of all current lung disability, including especially COPD if confirmed to be present, and for a medical nexus opinion concerning the etiology of the current lung disability - but especially in terms of the likelihood it incepted during his service or is otherwise related or attributable to any disease, injury or event during his service, particularly his alleged exposure to cold weather conditions while stationed in Greenland.  These development objectives since have been completed.  Because, however, the AMC continued to deny the claim, it is again before the Board.

As also was previously noted, the Board advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2013).



FINDING OF FACT

The preponderance of the competent and credible evidence weighs against finding that the Veteran's current COPD is the result of his averred exposure to extremely cold weather during his military service, especially while stationed in Greenland.


CONCLUSION OF LAW

His COPD is not shown to be the result of disease or injury incurred in or aggravated by his service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist the Claimant

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), sets forth VA's duties to notify and assist a claimant in substantiating a claim for VA benefits.  The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  A regulatory amendment effective for claims pending as of or filed after May 30, 2008, removed the so-called "fourth" requirement that VA also specifically request that he provide any evidence in his possession pertaining to the claim.  73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1).

The U.S. Court of Appeals for Veterans Claims (Court/CAVC) further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that these VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim:  1) Veteran status, 2) existence of a disability, 3) a connection between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date for the award if service connection is granted.

Through VCAA notice correspondence dated in July 2012, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  The VCAA notice further indicated the joint obligation between VA and him in obtaining pertinent evidence and information, explaining that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records.  See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  The notice correspondence further provided explanation of the "downstream" initial disability rating and effective date elements of a claim for service connection.

The VCAA notice also should ideally precede the initial adjudication of the claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  And in this particular instance the July 2012 VCAA notice letter did just that since the RO sent it prior to first adjudicating the claim in the October 2012 rating decision that prompted this appeal, so in the preferred sequence.

VA's duty to assist under the VCAA includes helping the claimant obtain relevant records, including service treatment records (STRs) and other pertinent records, such as regarding his evaluation and treatment since service, whether from VA or private healthcare providers, as well as providing an examination or obtaining a medical opinion when needed to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

To this end, the RO/AMC has taken appropriate steps to comply with this additional obligation by obtaining records of the Veteran's post-service VA and private outpatient treatment.  As well, his complete service treatment records (STRs) also are in the file.  Much of this additional development occurred following and as a result of the Board remanding this claim in August 2013, as did the Veteran undergoing a VA compensation examination for the necessary medical opinion indicating all current disability and commenting on the dispositive issue of the etiology of this present-day disability, particularly insofar as whether it has any causal association with his military service.  Meanwhile, in furtherance of his claim, he has provided additional private medical records and several personal lay statements.  He has not requested a hearing in connection with this claim.  There is no indication otherwise of any further relevant evidence or information that has not been obtained and that is obtainable.  The record as it stands includes sufficient evidence to decide the claim.  Under these circumstances, no further action is necessary to assist him with this claim.

In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations.  That is to say, the record has been fully developed, and it is difficult to discern what additional guidance VA could provide him regarding what further evidence he should submit to substantiate his claim.  Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004).  

The additional development of this claim directed by the Board's August 2013 remand was completed.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error as a matter of law in failing to ensure compliance).  But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (indicating situations when it is acceptable to have "substantial," even if not "exact" or "total", compliance with remand directives).


Accordingly, the Board will proceed to adjudicating this claim on its underlying merits.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand - especially here, another remand - would not serve any useful or meaningful purpose and not result in any significant benefit to the Veteran).

Governing Statutes, Regulations, Cases and Analysis

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.

Stated somewhat differently, establishing entitlement to direct service connection requires:  (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a causal relationship or correlation between the current disability and the disease or injury incurred or aggravated during service - which is the so-called "nexus" requirement.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

When, however, chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, a showing of continuity of symptomatology following service is required to support the claim.  Aside from having supporting medical nexus evidence establishing the required linkage between the currently claimed disability and service, a Veteran may establish chronicity of disease or injury in service by alternatively showing continuity of symptomatology since service under 38 C.F.R. § 3.303(b) - assuming he has one of the "chronic diseases" specifically enumerated at 38 C.F.R. § 3.309(a).  See generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The essence of 38 C.F.R. § 3.303(b) is continuous symptoms, not continuous treatment for them.  See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  These specific diseases listed in § 3.309(a) also may be presumed to have been incurred in service if manifested to the required minimum compensable degree of at least 10-percent disabling within the initial post-service year.  This presumption; however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.309(a).

COPD is not one of these listed chronic diseases, however, so it is not subject to these lesser pleading and proof requirements.  Service connection nevertheless may be granted for any disease diagnosed after discharge from service, if the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection also may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

In assessing the posited cause-and-effect correlation between the Veteran's service and his now claimed disability, the evaluation of the evidence involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine whether the evidence is "credible", or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In certain instances, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).


On the other hand, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases 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).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and the electronic ("Virtual VA") claims file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive 

detail.  See id.  The analysis below therefore focuses only on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  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 claimant).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

The Board notes at the outset that the Veteran's complete STRs appear to be on file, however, his service personnel file is presumed to be incomplete given that that these records have been identified as "fire-related" (hence, presumably destroyed in the 1973 fire at the National Personnel Records Center (NPRC), which is a military records repository).

The law provides that when, through no fault of the Veteran, records under the control of the Government are unavailable, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992).  
To this end, VA must advise the Veteran of his right to support his claim and try and compensate for this missing evidence by submitting alternate sources of evidence, including service medical or personnel statements or lay evidence such as "buddy" affidavits or statements.  Id.; see also 38 C.F.R. § 3.159(e).  See, too, Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that this heightened duty also includes the obligation to search for alternative records, such as by having him complete and return VA Form 13055 allowing for the search for evidence from the National Archives and Records Administration (NARA) or for extracts or other evidence from the Surgeon General's Office (SGO)).


The Board must also point out, however, that the O'Hare precedent does not raise a presumption that the missing records, if available for consideration, necessarily would support the claim.  That is to say, missing records concerning a Veteran's service do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim.  The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened.  See Russo v. Brown, 9 Vet. App. 46 (1996).  The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's records have been lost or destroyed.  See Ussery v. Brown, 8 Vet. App. 64 (1995).  Thus, missing records, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and his military service.  See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367).

The Board is undertaking its adjudication and consideration of this case with these obligations in mind.  It is observed, as has been previously stated, that all necessary action has been taken in furtherance of the duty to assist the Veteran.  Moreover, the Board recognizes a similar need to explain its decisional rationale.  In this regard, the absence of complete service personnel records ultimately does not hinder reaching a decision in this case, in that the Veteran's prior service in an extreme cold weather location - namely, Greenland - is accepted and not materially in dispute, and the personnel file would not be reasonably expected to establish much information beyond this.  The disposition of this case turns upon the lack of a causal nexus medical relationship between a current respiratory disability and that cold weather exposure, so even accepting that it occurred as alleged, based on recently obtained findings pursuant to a VA compensation examination.  Therefore, this disposition would not be presumed to be substantially affected in whole or even in part by the absence of these service personnel records.  The absence of these records is accordingly minimized.

The Veteran maintains he was exposed to extreme cold conditions while stationed in Greenland during his service, and that he developed COPD as a consequence.  He alleged on his July 2012 formal claim application (VA Form 21-526) that his physician had informed him that he had a black spot on his left lung that was due to some incident of frostbite - so presumably that had occurred during his service from that cold weather exposure.

The Veteran's DD Form 214 confirms he had 10 months and 26 days of foreign and/or sea service.  His STRs note service in the "Trans Arctic Group."  In connection with his December 1956 claim for service connection for a nervous/stomach disorder, he made statements alluding to service in Greenland.  He also has more recently submitted photographs showing he was in an area with much snowfall at a younger age and in uniform.

In an August 2012 statement, he likewise indicated that he was stationed in Greenland for a time during his service, indeed, at the most northerly located post, with winter temperatures as low as 92 degrees below.  In contemporaneous correspondence, he stated that he routinely performed outdoor functions in a crevasse where it was extremely cold, without the use of breathing equipment.

All of that notwithstanding, his STRs reflect no complaints, treatment or findings related to a lung or respiratory disability, including especially COPD.  During his September 1954 pre-induction examination, clinical evaluation revealed normal findings of his lungs and chest.  During his later October 1956 military separation examination, no abnormalities of his lungs and chest again were observed on clinical evaluation, so even after the purported cold weather trauma during his service in Greenland.  Moreover, in a contemporaneous November 1956 statement, he acknowledged there had been no change in his physical condition since his "last final type physical examination" in October 1956.


During his initial VA compensation examination after service, in January 1957, which was provided in connection with a claim of entitlement to service connection for a nervous/stomach disability, he reported a history of being stationed in Greenland during his service.  There were no reported or objective findings pertaining to a respiratory condition, however.  A chest X-ray presumably in connection with that examination indicated a "normal chest."

Private medical records dated from January 1975 include a chest X-ray revealing findings of a 1 cm nodular density in the right lower lobe, essentially unchanged since October 1972.  There was no definite calcification noted within it, but it had remained unchanged in size for at least two years.  The rest of the lungs were clear.  
Thereafter, a May 1976 chest X-ray revealed no significant change from the January 1975 X-ray, with a nodular density measuring approximately 1 cm by 1.5 cm in relation to the right lung base, with no significant change in size in comparison with the previous film.  

The Veteran was seen in the emergency room of a private hospital in June 2008 presenting with shortness of breath that apparently had been progressive over the last three weeks, getting worse.  He described breathing difficulty, worse at night.  It was determined that he had evidence of severe air flow obstruction, and hopefully there would be some reversibility to it.  A cardiac catheterization revealed he had exertional dyspnea and ischemia on noninvasive stress testing.  A pulmonary function test (PFT) showed severe airflow obstruction.  A CT scan of his thorax indicated emphysematous lung disease with mild panlobular emphysema, old granulomatous disease, and no evidence of pulmonary thromboemboli.

VA medical records dated from August 1998 to October 2012 reflect he was treated for and diagnosed with COPD, initially noted in November 2007.  A November 2007 VA outpatient treatment report noted that an X-ray of his chest had revealed findings suggestive of COPD, and he was diagnosed with a productive cough.  At that time, the VA treatment provider determined it could still be bronchitis, but more recent VA medical records reflect the Veteran was officially treated for and diagnosed with COPD.

A July 2012 private treatment report reflects a diagnosis of obstructive sleep apnea.  In light of the existing clinical findings and lay witness testimony of the Veteran pertaining to identified cold weather injury in service, and indication that a present respiratory condition could possibly be related to that injury in service, the Board's August 2013 remand directed that he be afforded a VA compensation examination for a medical nexus opinion concerning the etiology of his claimed respiratory disorder, including especially his COPD.

He had this requested VA compensation examination in September 2013, at the conclusion of which the clinical diagnosis was initially noted as COPD, calcified pulmonary granulomas, and sleep apnea.  It was indicated as to medical history that he had been hospitalized with dyspnea and found to have moderate to severe COPD in June 2008.  There were no hospitalizations since that admission.  He reported possible respiratory symptoms of cough and shortness of breath several years prior to that admission.  He had daily cough that was productive of sputum in the mornings.  There was one block level ground and less than one flight of stairs exercise tolerance due to shortness of breath.  He reported that he was told by his family doctor in the 1960s that a "spot" on his lung may have been from "freezing" his lung while in the service.  He mentioned "colds" while stationed in the arctic but no hospitalizations or serious illness.  However, there also was a positive smoking history of cigarettes from age 21 to 23, and four to five bowls per day of pipe smoking from age 23 to 50.  Since his discharge from service he had worked in farming and had managed a service station for 12 years, was a resort owner for 9 years, then a liquor store salesman for 4 years.

It was further objectively indicated that his respiratory condition now required chronic low dose (maintenance) corticosteroids, as well as inhalational bronchodilator therapy.  No oral bronchodilators, antibiotics, or outpatient oxygen therapy was required.  A recent chest X-ray had indicated calcified granuloma, right lower lobe; probable small calcified granulomas right lung apex with minimal biapical lung scarring; hyperinflation; no lobular pneumonia or pleural effusions; cardiomegaly; median sternotomy and postoperative changes of coronary artery bypass graft (CABG); no active disease in the chest.

He additionally was noted to be on nighttime oxygen by way of a continuous positive airway pressure (CPAP) machine.

The VA examiner then provided the following medical nexus opinion, after having reviewed the Veteran's claims file for the pertinent history:

It is not at least as likely as not (less than 50 percent probability) the Veteran's COPD incepted during his military service from November 1954 to November 1956 or is otherwise related or attributable to any disease, event, or injury during his service, particularly his alleged exposure to extreme cold weather conditions while stationed in Greenland.

There is no evidence the Veteran suffered an acute cold injury involving the lungs during military service.  The Veteran reports no illness during his time in active duty other than "colds."  There is no evidence of an episode of serious illness or hypothermia requiring hospital resuscitation for acute respiratory distress syndrome.  It is not possible to "freeze" the lungs without severe and life threatening upper airway injury and impairment which would have required intense medical intervention.  The physiology and anatomy of the mouth, nasal passages, throat and larger airways is such that the air inhaled is at or near body temperature by the time it reaches the lung tissue.  There is no evidence to support that cold weather exposure as experienced by this Veteran would result in a delayed onset COPD.

.     .     .

[On review of the January 1975 x-ray study] [a]symptomatic stable calcified granuloma related to an old infection or inflammatory process which is not disabling, not treated and not related to COPD.  This was not present on chest x-ray in 1957 shortly after discharge from active duty.  The x-ray evidence of COPD identified in the records is chest x-ray dated November 2, 2007 reporting increased volume suggestive of COPD.

The current medical evidence of record showing diagnoses of lung disabilities, including COPD, dyspnea, shortness of breath, emphysematous lung disease with mild panlobular emphysema, old granulomatous disease, no evidence of pulmonary thromboemboli, and obstructive sleep apnea.  Reviewed.  This is related to the Veteran's first presentation for medical care associated with COPD in June 2008.  Discharge diagnosis was COPD, he presented with symptoms of dyspnea and shortness of breath.  CT chest at the time of this hospitalization noted emphysematous lung disease with mild panlobular emphysema, old granulomatous disease and no evidence of pulmonary thromboemboli. 

[As to whether the Veteran had any other factors for a currently diagnosed lung disability outside of service] [t]he Veteran did not present to medical attention for symptoms of COPD until 2008.  There was no evidence of COPD on separation exam or post active duty chest x-ray in 1957.  This Veteran's COPD is secondary to cigarette and pipe smoking and likely genetic predisposition for adverse pulmonary changes secondary to inhaled smoke and other irritants over many years.

Having taken into due consideration the foregoing evidence, and in view of the objective legal requirements to demonstrate entitlement to service connection, the Board concludes this claim at issue must be denied on the merits.  There is no question the Veteran presently manifests one or more respiratory system disorders, particularly given his treatment over the last several years for COPD in particular.  Essentially, then, the preliminary criterion of a qualifying current disability is met, and the inquiry turns instead to the equally essential element of a causal nexus -- that is, whether the condition now shown is etiologically related to any incident of the Veteran's military service, in this case, his averred history of extreme cold weather exposure while stationed in Greenland.


This cause-and-effect correlation is a most essential requirement for establishing entitlement to service connection.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."); Shedden, supra.  See, too, Duenas v. Principi, 18 Vet. App. 512, 516 (2004).  On this subject, however, the preponderance of the evidence is ultimately unfavorable, given the competent, probative and factually well-supported and well-articulated medical opinion proffered by the September 2013 VA compensation examiner.

The medical opinion under review effectively rules out a causal relationship between the Veteran's COPD (and any other respiratory disorder for that matter) and his military service, explaining that there was no documented or event reported respiratory system problem during military service, nor was it within the realm of medical likelihood or known possibility that the lungs could "freeze" (unless causative of immediate diagnosable and potentially catastrophic injury) to such an extent that there would be long-term medical consequence to the respiratory system function.  There was no possibility of a "delayed onset COPD" under circumstances of cold weather exposure.  The VA examiner made this observation duly taking at face value the Veteran's own assertions of in-service cold weather exposure, so duly acknowledged the likely occurrence of that trauma given the Veteran's duties and responsibilities in service, and where stationed at the time.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of 
in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion).  

Here, instead, there was due recognition of the claimed trauma in service, but, that notwithstanding, still disassociation of the current disability from that trauma.  The VA examiner nonetheless did not find any compelling indication of an association with post-service diagnosed pathology.  The Board ascribes significant probative weight to this conclusion based on its thoroughness, the review of the record, the persuasive rationale, and expertise of the examiner.  See generally Bloom v. West, 12 Vet. App. 185, 187 (1999) (recognizing that the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").  See also Guerrieri v. Brown, 4 Vet. App. 467, 270-71 (1993) (the probative value of medical opinion evidence is based on the medical expert's personal examination of the Veteran, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches).  See, too, Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion).

Adding further weight to this unfavorable medical opinion is that the VA examiner observed the distinct absence of symptomatology of COPD or other respiratory disorder up until the mid-2000s, more than four decades post service, as well as ruled out the intervening January 1975 chest X-ray anomaly as inconsistent with a future diagnosis of COPD.  Further observed was a significant history of tobacco use, both cigarette and later pipe smoking, even if on a relatively somewhat limited basis, as an alternate etiology of the COPD.  This is noteworthy because 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.

Accordingly, the Board hereby accepts the conclusions stated within the above VA physician's opinion.  See Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (the Board may consider and evaluate the underlying basis of an opinion on a medical question, and determine whether to accept such an opinion under the circumstances).  See also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  To the extent the Veteran himself avers that his COPD or other current respiratory disorder is of service origin, whereas he is competent to assert in-service exposure to extreme cold weather, the question of whether that incident led to the eventual development of future respiratory problems is best left to the discretion of medical judgment.  The Board cites in this regard the extensive lapse of time between initial alleged injury and onset of relevant symptomatology, as well as inherent medical complexity involved in making a causation determination.  Thus, he would have to demonstrate consistent medical evidence to substantiate his claim, particular given the thoroughness and attendant high probative value of the VA examiner's opinion which tends to weigh against the claim.

In Buchanan, 451 F.3d 1331, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record").  Moreover, although the Board cannot reject a claimant's statements, including regarding the supposed history or chronic recurrence of his disability, merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors.  See Cartwright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias...").

The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Board therefore may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following the conclusion of his service during which there was no clinical documentation of the claimed disorder).

In Kahana v. Shinseki, 24 Vet. App. 428 (2011), and Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc), the higher Veterans Court and even higher Federal Circuit Court cautioned that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Still, ultimately, the Board must consider all of the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 
1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2001) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

For these reasons and bases, the claim for service connection for COPD is denied.  The preponderance of the evidence is against the claim, and in this circumstance the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).   


ORDER

The claim of entitlement to service connection for COPD is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs