Citation Nr: 1334760 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 06-16 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), also claimed as a lung and breathing condition. 2. Entitlement to service connection for an acquired psychiatric condition to include depression, claimed as secondary to COPD. 3. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from November 1955 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated April 2005 and November 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the Veteran's claims. The Veteran originally appealed the April 2005 RO denial of service connection for all issues including COPD, asthma, and bronchitis. However, VA received a letter from the Veteran in July 2006 withdrawing his appeal of entitlement to service connection for asthma and bronchitis. The Veteran was afforded a hearing before a decision review officer (DRO) at the RO in San Juan, Puerto Rico in April 2007. Unfortunately, due to a recording malfunction, the hearing transcript is incomplete. He was afforded an opportunity for another hearing. See the January 2009 letter. In July 2008, the Board remanded the appeal for COPD for additional development. In a May 2013 Board decision, all claims on appeal were remanded for further evidentiary development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denials in an August 2013 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. In February 2011, the Veteran requested a Board hearing, but then withdrew his request in March 2012 pursuant to 38 C.F.R. § 20.704(e). During the pendency of the appeal, the Veteran had been represented by the Puerto Rico Public Advocate for Veterans Affairs. In November 2010 and November 2012, the Veteran stated that he no longer desired to be represented by this organization. To date, he has not appointed another representative. The Board observes that in addition to depression, the medical evidence of record also indicates a diagnosis of adjustment disorder. It is clear that the Veteran is asserting entitlement to service connection for a psychiatric disability or disabilities, however diagnosed. The United States Court of Appeals for Veterans Claims (Court) has decided that a veteran is not held to the disabilities (s)he has listed as a lay person without medical expertise; rather, service connection should be considered for any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, (s)he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The issue has been restated accordingly. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for acquired psychiatric disorder and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Veteran will be notified if further action on his part is required. FINDING OF FACT Resolving all doubt in the Veteran's favor, the currently diagnosed COPD is as likely as not related to his active duty service. CONCLUSION OF LAW COPD was incurred in the Veteran's active military service. 38 U.S.C.A. §§ 1110, 5103A (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2010)), which imposes obligations on VA in terms of its duty to notify and to assist claimants. The Board has considered this legislation and finds that, given the favorable action taken herein with regard to the claim for service connection for COPD, no further discussion of these VCAA requirements with regard to this issue is required. Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for any condition listed in 38 C.F.R. § 3.303(b). Any condition not encompassed by Section 3.303 (b) requires a medical nexus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for the claimed disorder, generally, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish the elements of service connection when (1) a layperson is competent to identify the medical condition, (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. See Jandreau, 492 F.3d at 1377. Here, the Veteran asserts that he suffers from COPD that was incurred during his military service. See, e.g., the RO hearing transcript dated April 2007. Specifically, he maintains that he developed COPD following an in-service episode of hypothermia and pneumonia. Id. The Board has thoroughly reviewed the record and concludes that the evidence is at least in equipoise as to whether the Veteran's currently diagnosed COPD was incurred during his active duty service. The Board initially notes that the Veteran's service treatment records (STRs) were lost in a fire at the NPRC. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). In any event, the loss of the Veteran's service records, although regrettable, is not crucial to the outcome of this matter. As will be explained below, the Board finds that the evidence is at least in equipoise as to the matter of service connection for COPD. Here, the Veteran served on active duty from November 1955 to November 1957. Although his STRs are unavailable, the Veteran has provided competent sworn testimony asserting that he suffered an episode of hypothermia in February 1956 which caused damage to his lung. See the RO hearing transcript dated April 2007. Specifically, the Veteran stated that he lost consciousness while on an overnight maneuver at Fort Dix, New Jersey. See the Veteran's statement dated January 2009. He indicated that a snow storm came in overnight and, the next morning, he could not get up and subsequently lost consciousness. Id. He stated that he was hospitalized for 27 days at the Walton Army Hospital, with a final diagnosis of hypothermia. He further asserted that he was subsequently treated during his military service for complaints of lethargy, weakness, shortness of breath, and cold symptoms. Id. In support of his contentions, the Veteran submitted a statement from a fellow service member. In his sworn December 2005 statement, Mr. V.A. indicated that he was inducted into military service with the Veteran and was stationed with him in Fort Dix. Mr. V.A. reported that, in February 1956, "[w]hile at Fort Dix, we went on bivouac, and after walking eighteen miles were given time to rest and stay out during the night." He continued, "[d]uring that night a snow storm broke while we were in the field. That next morning, [the Veteran] was not able to get up from his sleeping bag, since he was frozen. He lost his consciousness and was taken to the base hospital." See the statement from Mr. V.A. dated December 2005. The Veteran also submitted a letter from Ms. H.C.R., a licensed nurse, who indicated that in 1959 she was working as a practical nurse in the Ceiba Health Center where the Veteran was a patient. She indicated that the Veteran had a diagnosis of "chronic bronchial asthma (COPD) and pulmonary emphysema." She stated that the Veteran's life "was often in danger, to the point of respiratory failure on some occasions." She further indicated that the Veteran acquired this illness when he was in the military service "as he and his family reported." A medical certificate dated in October 1970 documented a diagnosis of chronic pulmonary fibrosis and bronchial asthma. A diagnosis of bronchial asthma was also indicated in medical certificates dated in August 1971 and August 1975. An SSA disability decision dated February 1992 noted that the Veteran had a prior period of disability and disability insurance benefits from June 1975 to May 1988. The Veteran filed a disability claim in January 1991 alleging disability since December 1990 due to emphysema and chronic bronchial asthma. The decision also noted that that "[t]he medical evidence reveals that the claimant has had asthma for most of his adult life." It was further noted that in January 1991, the Veteran was admitted to Orlando General Hospital due to breathing difficulties. VA treatment records dated from June 2000 through September 2007 document a continuing diagnosis of COPD. The Veteran was afforded a VA examination in July 2009 at which time the examiner confirmed a diagnosis of COPD/bronchial asthma. The examiner then noted, "[a]s per Veteran's allegations, his COPD/bronchial asthma started manifestations during active military service, but unfortunately there are no STR's available for review. Then, I cannot resolve this issue without resort[ing] to mere speculation." The examiner further opined, "[m]ilitary records and medical evaluations by the time of active military service are extremely important in order to render a responsible opinion without resorting to mere speculation." He added that the Veteran "completed military service in 1957, and the first documented evidence of bronchial asthma is a medical certificate dated October 8, 1970. That is a gap of more than 10 years between separation from military service and first documentation of diagnosis." In a September 2009 statement, Dr. N.A.O. provided a positive nexus opinion as to the question of whether the Veteran's COPD was incurred in his military service. To this end, Dr. N.A.O. initially detailed the Veteran's history of respiratory problems including the in-service hypothermia incident and subsequent hospitalization. She noted that "[f]rom that moment, [the Veteran] started with his respiratory problems with constant episodes of fever, cough, fatigue, and shortness of breath." She explained that, "[r]espiratory complications are initial increase in minute ventilation and progressive decrease of respiratory rate and tidal volume. If his lung[] capacities are not at normal functioning levels and if patient start[s] presenting continuous episodes of respiratory tract problems, like he used to suffer, that can cause inflammatory changes, which if chronic, causes changes of parenchyma of lung." She noted the deterioration of the Veteran's condition and stated that he was later diagnosed with COPD. She then concluded, "[a]fter evaluation of record, it is more probable than not that [the Veteran] presents COPD that is service connected due to his incident of hypothermia at service." Accordingly, there is conflicting medical evidence of record concerning the question of medical nexus. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). The Board recognizes that the July 2009 VA examiner expressed an equivocal opinion based upon an absence of STRs. In this regard, the Court has held that the fact that a medical opinion is inconclusive does not by itself render it inadequate for rating purposes. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). In contrast, a clinical professional has specifically attributed the Veteran's COPD to his military service. The Board finds that the September 2009 medical opinion from Dr. N.A.O. appears to have been based upon a thoughtful analysis of the Veteran's entire history and current medical condition. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (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"). Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in equipoise as to whether the currently diagnosed COPD is a result of the Veteran's military service. The benefit of the doubt rule is therefore for application as to this issue. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). The Board will resolve this reasonable doubt in the Veteran's favor and finds that the evidence supports the grant of service connection for COPD. See 38 U.S.C.A. § 5107 (West 2002). ORDER Entitlement to service connection for COPD is granted. REMAND For the reasons expressed below, the Board finds that the claim of service connection for an acquired psychiatric disorder to include depression must be remanded for further development. Additionally, the issue of entitlement to TDIU must also be remanded. With respect to the acquired psychiatric disorder claim, the Veteran contends that an acquired psychiatric disorder, to include depression, is proximately caused or aggravated by his COPD. As indicated above, the Board has found that the evidence supports service connection for COPD. The Board recognizes that in her September 2009 letter, Dr. N.A.O. indicated that the Veteran's depression is secondary to his respiratory symptoms. However, a review of the record also reveals VA treatment records documenting familial stressors. See, e.g., the VA treatment records dated February 2000 and May 2000. Critically, the Veteran has not been afforded a VA examination to address the claimed acquired psychiatric disorder. The Board therefore concludes that a VA examination is necessary to address the currently diagnosed acquired psychiatric disability--including whether the acquired psychiatric disability was caused or aggravated by any service-connected disability. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim); see also Colvin v. Derwinski, 1 Vet. App. 191 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). A remand for a new VA examination should therefore be accomplished in order to address these outstanding questions with respect to the Veteran's claimed acquired psychiatric disorder. Additionally, review of the record reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). The Veteran's claim of entitlement to TDIU is inextricably intertwined with the claim that currently remains on appeal. In other words, if service connection as to the acquired psychiatric disability is granted, this will impact VA's analysis of the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, the Board will defer consideration of the TDIU claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. After obtaining the appropriate releases where necessary, procure any records of outstanding treatment and/or evaluation that the Veteran has recently received. The Board is particularly interested in VA treatment records dating from May 2010. All such available documents should be associated with the claims file. 2. After the above-referenced development has been completed, VBA should schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of his claimed acquired psychiatric disorder, to include depression. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All pertinent testing deemed necessary should be accomplished, and the results of any such studies should be included in the examination report. The examiner should identify each psychiatric disorder experienced by the Veteran or specifically rule out any such diagnosis. Any diagnostic testing deemed to be necessary by the examiner should be accomplished. For each psychiatric disability present, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that it had its clinical onset in service or is otherwise related to service or was caused or aggravated by his service-connected disabilities. If aggravated, specify the baseline of psychiatric disability prior to aggravation, and the permanent, measurable increase in psychiatric disability resulting from the aggravation. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 3. Thereafter, readjudicate the claims on appeal. If any benefit sought remains denied, the Veteran should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court or additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs