Citation Nr: 1334928 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-24 898 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant (the Veteran) is represented by: The American Legion ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from May 1956 to May 1976. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the VA special claims processing unit located at the RO in Cleveland, Ohio. In January 2012, the Veteran presented testimony at a Board hearing, chaired by a Veterans Law Judge, sitting at the RO. A transcript of the hearing is associated with the claims file. The Board notes that the Veterans Law Judge who conducted the January 2012 hearing has since retired from the Board. The Veteran was informed by letter dated in August 2013 that he could attend another hearing to be conducted by the Judge who would decide the case. The Veteran was informed that, if he did not respond to the letter within 30 days of the letter, it would be presumed that he did not want another hearing. The Veteran has not responded to the letter. The undersigned has reviewed the transcript. In May 2012, the Board reopened the claim of entitlement to service connection for COPD, which had previously been denied, and remanded the merits of the appeal for additional evidentiary development. It has since been returned to the Board for further appellate action. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. All notification and development needed to fairly adjudicate the appeal has been accomplished. 2. A respiratory disability is not related to service, to include presumed exposure to herbicides therein. CONCLUSION OF LAW A respiratory disability was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C.A. §§ 337, 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for a respiratory disability, which has been diagnosed as COPD. The Veteran has testified that he also has bronchitis. The Veteran asserts that his current respiratory disability is causally related to exposure to herbicides during service in Vietnam. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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). The United States Court of Appeals for Veterans Claims (Veterans Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). A review of the clinical records establishes a diagnosis of COPD confirmed by pulmonary function tests and X-rays. A February 2013 VA examiner reviewed the claims file and opined that a diagnosis of COPD was supported. Thus, there is a current chronic respiratory disability and the first element necessary for service connection has been met. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). The following diseases are deemed associated with herbicide exposure, under VA law: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The foregoing diseases shall be service connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e). A disease associated with exposure to certain herbicide agents listed in § 3.309 will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service, provided that such disease shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a). The Secretary of Veterans Affairs (Secretary) has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41-442-449 (1996). The Secretary has published a list of specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. As of May 2008, these included respiratory disorders and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 75 Fed. Reg. 32540-03 (2010). The Veteran's Vietnam service has been confirmed by the RO. Therefore, it is presumed that he was exposed to Agent Orange and other herbicide agents. However, COPD and bronchitis are not among the disease that are presumed to be related to herbicide exposure. Indeed, the Secretary has specifically included respiratory disorders among the diseases for which a presumption of service connection based on herbicide exposure is not warranted. It is important for the Veteran to understand that COPD and bronchitis are also not listed among the diseases for which the presumption of service connection for certain chronic diseases, and the provisions regarding chronicity in service and continuity of symptomatology after service must be considered. See 38 C.F.R. § 3.309(a). Accordingly, the Board finds that the presumptive service connection provisions are not applicable in this case. Although the Veteran's exposure to herbicides in Vietnam is acknowledged, this alone does not permit a grant of service connection for COPD or bronchitis. In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). As such, the Board must not only determine whether the Veteran has a disability which is subject to presumptive provisions, but must also determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(d). After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that, notwithstanding the lack of any presumption of service connection, there is no etiologic association between the Veteran's service and any current respiratory disability. Service treatment records reveal no diagnosis of a chronic respiratory disability, such as COPD or chronic bronchitis during service. A periodic examination in April 1966 and the service separation examination in June 1975 include examinations of the lungs and respiratory system, as well as a chest X-ray at service separation. In both cases, the lungs and chest were found to be clinically normal. At the time of the service separation examination, the Veteran completed a report of medical history on which he noted no history of shortness of breath, asthma, or tuberculosis, providing highly probative factual evidence against his own claim. The service treatment records provide probative evidence that a current respiratory disability did not begin during the Veteran's service. The Veteran does not assert otherwise. After service, the first indication of a chronic respiratory disability comes from a private treatment record in August 1998, on which the examiner noted that there was "probably some COPD from prior smoking." A May 2000 X-ray provides the first confirmed diagnosis of COPD. This is consistent with the Veteran's testimony that, as far as he could remember, the COPD started sometime after 2000. An October 2005 letter from the University of Virginia Health System Pulmonary Division Clinical Research Coordinator reveals that the Veteran had been treated since June 2005 for COPD, which was severe. While the continuity of symptomatology provisions do not apply to COPD or bronchitis, the fact that a period of 25 years elapsed between separation from service and the onset of symptoms is evidence that weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Also significant, the current claim was not the first claim for disability compensation filed by the Veteran since service separation. The Veteran filed a claim in July 1976, but he only mentioned the right elbow, the low back and an inguinal hernia. He filed a claim in October 2000, but only mentioned an increase in his back and right elbow disabilities. He filed a claim in May 2001 but only mentioned diabetes. While inaction for many years regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it is reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated as early as July 1976 that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in several other instances where he believed himself entitled to service-connected disability benefits. In circumstances such as these, it is more reasonable to expect a complete reporting than it is to expect a partial reporting of symptoms. Thus, the Veteran's inaction regarding a claim for a respiratory disorder, when viewed in the context of action regarding several other claims, is interpreted as indicative of the lack of significant respiratory symptomatology at that time. This evidence also weighs against the claim, to a highly limited degree. The Board also notes that no medical opinion purports to relate a current respiratory disability to service, including the presumed exposure to herbicides therein. Indeed, there is substantial medical opinion evidence against such a relationship. The general consensus of the medical opinion evidence of record relates the onset of COPD to the Veteran's history of tobacco smoking. As noted above, a private treatment record in August 1998 reflects the examiner's opinion that there is "probably some COPD from prior smoking." In addition, a February 2003 VA primary care note refers to probable COPD secondary to a history of smoking. The Board remanded this claim in May 2012 to obtain a medical opinion regarding the claimed association between the Veteran's COPD and service. A February 2013 VA opinion was obtained by the RO based on a file review and telephone interview with the Veteran. The examiner concluded that COPD was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner also found that "the preponderance of the evidence in the [V]eteran's record does not show the [V]eteran's COPD was caused or aggravated by any in-service chemical exposure." The examiner reasoned that the Veteran's discharge examination includes a chest X-ray in 1975, which was reported as normal. Moreover, the medical literature does not reveal an etiological association between Agent Orange exposure and the later development of COPD. The examiner also made note that, during the telephone interview, the Veteran reported that he started smoking tobacco at age 13 and stopped around 1987. He reported post-service work at a textile company, weaving yarn, and as a mechanic. The Veteran believed that the machinery exposed him to asbestos. The examiner opined that the Veteran's two extremely significant risk factors of tobacco use and occupational exposure to asbestos create the likely cause of the Veteran's current COPD, not his military service or Agent Orange exposure. The examiner concluded that the Veteran's smoking history is the cause of his COPD and there is no evidence in the claims file that his COPD is the result of military service or exposure to Agent Orange, providing highly probative evidence against this claim. The Board finds that the February 2013 VA opinion, in combination with the other clinical evidence relating COPD to smoking, provides probative and persuasive evidence against any relationship between the Veteran's service and his COPD. The Veteran has also asserted that his service-connected diabetes mellitus may have caused or aggravated his COPD. In the October 2005 claim, the Veteran asserted that "COPD was caused by hypertension secondary to diabetes, as it was either caused by diabetes or significantly aggravated by diabetes." The Board notes that, while hypertension is not a service-connected disability, diabetes is a service-connected disability. Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection may also be established the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App.439, 448 (1995). After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that there is no relationship, either of causation or aggravation, between the Veteran's diabetes mellitus and/or hypertension and his COPD. The February 2013 VA examiner addressed this question in his opinion. He opined that, "[a]s to the question of whether the Veteran's COPD is caused or aggravated by the Veteran's service-connected Type II diabetes, my answer is no to both." The rationale provided by the examiner was based on clinical research and the Veteran's record. He noted that there is no data to show that diabetes causes COPD. He also noted that a review of the Veteran's clinical care documented in the claims file reveals no reference to the service-connected diabetes causing his COPD or aggravating it. The examiner reiterated that the Veteran's tobacco use is the cause. Evidence submitted by the Veteran from his private treatment providers is also against this asserted secondary service connection relationship. An October 2005 letter from Carilion Family Medicine notes that the Veteran carries diagnoses of COPD, Type II diabetes, prostate enlargement, and hypertension, and that the diabetes may have caused or aggravated his hypertension; however, neither condition would be expected to have contributed to his COPD. Thus, as with direct causation, the medical opinion evidence regarding secondary causation or aggravation weighs against the claim. As noted above, service connection is not in effect for hypertension, and the matter of entitlement to service connection for hypertension is not before the Board. The Board has considered whether a claim of entitlement to service connection for hypertension is reasonably raised by the record in light of the October 2005 letter. The Board finds that, to the extent a claim was raised by the letter, it has already been adjudicated. In fact, the Veteran has actively pursued a claim of entitlement to service connection for hypertension, and an application to reopen the claim was denied by the RO as recently as July 2013. The October 2005 letter was of record at that time. The Board acknowledges that the medical evidence does describe an upper respiratory reaction to certain medications used to treat the Veteran's various disabilities. In particular, a November 2002 optometry note discusses an exacerbation of COPD that seems to correlate with initiation of Timolol and increase in dosage. The optometrist noted that Timolol would be discontinued in favor of Xalatan. A subsequent February 2003 optometry note shows that dyspnea had improved with the discontinuation of Timolol. The Board notes that the Veteran has been diagnosed with primary open angle glaucoma; however, this is not a service-connected disability. Even if it were a service-connected disability, the clinical evidence does not provide probative evidence of either causation or aggravation (permanent worsening) of the Veteran's COPD by his primary open angle glaucoma. The treatment notes specifically describe an exacerbation of symptoms that was treated and improved by switching to a different medication. The Veterans Court has held in the context of establishing an in-service aggravation of a pre-existing disability that an exacerbation of symptoms during service does not constitute evidence of aggravation. See Green v. Derwinski, 1 Vet. App. 320, 323 (1991). While not directly on point, the reasoning of the Veterans Court applies to the facts of this case. The November 2002 optometry note does not establish or even suggest a permanent worsening in the underlying COPD by medication used to treat primary open angle glaucoma, notwithstanding that primary open angle glaucoma is not a service-connected disability. The Veteran clearly believes that his COPD was caused or aggravated by herbicide exposure in service, or alternatively, by a service-connected disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Board finds that establishing the etiology of a respiratory disability falls outside the realm of common knowledge of a lay person, particularly when, as here, the onset of symptoms is temporally remote from the asserted cause. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran's assertions regarding etiology are not competent evidence. The Board finds that the opinion of the February 2013 VA examiner and the October 2005 private opinion are persuasive on the question of etiology. Those opinions establish that there is no causal relationship or relationship of aggravation between the Veteran's service or any service-connected disability and his current COPD. The February 2003 and February 2013 opinions also establish an affirmative relationship between the Veteran's history of tobacco smoking and his COPD. These opinions are conclusively stated and are consistent with the record. Accordingly, the Board attaches substantial probative weight to them in determining the etiology of the Veteran's COPD. As there is no etiologic relationship between COPD and service, or any service-connected disability, the Board concludes that service connection for COPD is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The Veterans Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the Veteran submitted an application to reopen entitlement to service connection for COPD in January 2008. He was sent a letter in March 2008 which advised him of the information and evidence necessary to substantiate his claim of service connection. That letter also advised him as to how disability ratings and effective dates were assigned in the event of a successful claim seeking service connection. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). An additional letter was sent in October 2009. Since the March 2008 letter was sent to the Veteran prior to the initial adjudication of the claim in September 2008, there exists no error in the timing of this notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In short, VA has complied with its duty to notify the Veteran in this case. When conducting a hearing, a VA hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2013). The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the Board hearing, the Veteran's COPD onset and symptomatology were discussed in detail, as well as his contentions regarding his exposure to herbicides in service and his assertions regarding the etiology of COPD. Notably, the Veteran affirmed that none of his treatment providers have linked his COPD to herbicides or to a service-connected disability. The Veteran's testimony demonstrates that the Veteran understands the requirements for service connection as well as the basis for his denial at the RO level. The Board also reiterates that the Veteran was afforded an opportunity to attend a second Board hearing and he did not avail himself of that opportunity. To the extent he objects to the manner in which the first hearing was conducted, he has essentially abandoned such objection. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's written assertions and personal hearing testimony. In addition, a VA opinion was obtained to address the etiology of the claimed respiratory disability in February 2013. This opinion is adequate because it was provided by a medical professional based on a review of claims file and an interview of the Veteran. Moreover, the opinion was accompanied by a rationale that is consistent with the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The Board acknowledges that the Veteran's representative has asserted that the February 2013 opinion is inadequate because it was provided by a nurse practitioner rather than a pulmonologist. The Board rejects this assertion as well as the request for an opinion by a pulmonologist. Generally, the only requirement for competency to provide medical evidence is that the person be a licensed health care professional. YT v. Brown, 9 Vet. App. 195, 201 (1996). While the opinion of a specialist might, in some cases, be given greater probative weight than the opinion of a generalist, this does not diminish the adequacy of the generalist's opinion. Here, there is no medical opinion that conflicts with the February 2013 opinion. The Board finds that the February 2013 report reflects a familiarity with and discussion of the Veteran's clinical history and present complaints, as well as a telephone interview of the Veteran. The opinion reflects that the examiner analyzed the available data in reaching his conclusion. That the examiner's findings do not support the Veteran's complaints is not a reason to find the examination inadequate. Accordingly, the Board rejects the request that another examination be scheduled. See also Counts v. Brown, 6 Vet. App. 473, 478-9 (1994) and Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (VA's . . . . "duty to assist" is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim). As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's remand instructions by obtaining updated VA treatment records and by obtaining a VA nexus opinion. Accordingly, a remand for corrective action is not necessary. ORDER Service connection for a respiratory disability, to include COPD, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs