Citation Nr: 1335334 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-29 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to an increase rating for anxiety reaction (formerly panic disorder with phobic reactions), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for COPD and an increased rating for anxiety reaction (formerly panic disorder with phobic reaction). In November 2011, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. The issue of entitlement to an increased rating for anxiety disorder being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent and credible evidence fails to establish that the Veteran's diagnosed COPD had its onset in service, or is otherwise related to his active service. CONCLUSION OF LAW COPD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA duty to notify was satisfied by way of a letter sent April 2008. The letter fully addressed all notice elements. It informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With that letter, the RO effectively satisfied the notice requirements with respect to the issue of service connection on appeal. Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. VA also has a duty to assist a veteran in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The RO associated the Veteran's service treatment records, and private treatment records with the claims file. No outstanding evidence has been identified. The Veteran was also afforded a VA examination in connection with the claim. The Board finds the July 2008 examination related to his COPD was thorough and adequate upon which to base a decision. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to decide the claim. The Veteran was offered a personal hearing in connection with the claim. He and his spouse testified at a Travel Board hearing in November 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue on appeal. He sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran or his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of either hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the RO hearing officer complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, in this case, COPD is not a chronic disease " listed under 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) does not apply to COPD. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The Veteran asserts that service connection is warranted for COPD based on service incurrence. He maintains that he was exposed to chemicals and solvents around airplanes and that as a result, he subsequently developed COPD. Service treatment records (STRs) show that the Veteran was seen in August 1982 with complaints of burning sensation in the mid sternum on exhalation. He also had congestion in the chest for 5 days. On examination, the chest was clear to percussion and an x-ray showed possible pneumonitis. The assessment was possible early right lower lung pneumonia. He was placed on antibiotics for 10 days. In September 1982, he was seen with complaints of congestion to the sinuses with productive cough, and occasional sore throat. His lungs presented wheezing upon exhalation in all fields. The impression was upper respiratory infection. In September 1983, he complained of productive cough and a tight chest. The diagnosis was bronchitis. On separation examination of May 1994, no respiratory complaints were made and his nose, mouth, chest, and lungs were found to be normal. Post-service medical evidence shows that the Veteran was treated for pneumonia in April 2005. That same year, he was diagnosed with COPD. He has been treated by a pulmonologist for COPD since that time. In July 2008, the Veteran underwent a VA examination. After examination and pulmonary function testing, the diagnosis was COPD with emphysema. The Veteran reported a 35year smoking history of 1.5 packs per day. The examiner opined that it was less likely as not that the Veteran's respiratory condition (COPD) was the same as or the result of his respiratory condition in service (pneumonitis). His rationale stated that pneumonitis is not the same condition as COPD. According to the examiner, they are two separate and distinct disease processes. Pneumonitis does not cause COPD. Pneumonitis is generally an inflammation of the lung tissue caused by infection and hypersensitivity. Pneumonitis is acute and transitory and by nature, generally always resolves with little to no residual. COPD is a disease of the lungs whereby the airways become narrowed leading to limitation of the flow of air to and from the lungs. Smoking causes up to 90 percent of the cases of COPD and the other cases are generally caused by a genetic disorder. The Veteran and his spouse testified at a Travel Board hearing before the undersigned VLJ in November 2011. The Veteran stated that he had what he believed was COPD the last 12 to 15 years of his active service. He also stated that the term COPD did not come up until around 2006. However, he stated that he had been treated for bronchitis since he walked off base at retirement. His spouse testified that his pulmonologist diagnosed adult-onset asthma. After a thorough review of the record, there was no evidence of COPD in service, at service discharge, or for many years after service. The July 2008 VA examiner opined that the Veteran's pneumonitis in service is a different disease process than his currently diagnosed COPD. It was the examiner's opinion that the pneumonitis in service was an acute and transitory inflammation of the lung tissue caused by infection or hypersensitivity. That condition resolved without residual. On the other hand, his currently diagnosed COPD is a lung disease which involves narrowing of the airways. Ninety percent of the time, COPD is caused by smoking, which the Veteran has a long and present history. Most recently, he was known to still smoke on a regular basis. The other 10 percent of COPD, according to the examiner, is caused by a genetic disorder. In any event, the evidence does not show that that the Veteran had any more than the Veteran's acute pneumonitis in service. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Lay evidence may be competent to establish medical etiology or nexus. Davidson v. Shinseki 581 F.3d 1313, 1316 (Fed. Cir. 2009). Although the Veteran is competent to report that he noticed/observed/experienced respiratory symptoms in service similar to those he experiences presently, the Board must still weigh his lay statements against the medical evidence of record. Layno v. Brown, 6 Vet. App. at 465. In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his COPD. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes 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."). Because COPD is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the Veteran's unsubstantiated statements regarding the claimed etiology of his COPD is found to lack competency. The Veteran's lay opinion is outweighed by the VA July 2008 VA examiner's opinion. The July 2008 VA examination opinion, is a medical opinion, and as the Veteran's opinion lacks competency, it is outweighed by the skillful opinion of the medical examiner. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (an evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached). Thus, as a nexus between the Veteran's claimed COPD and service has not been established, either through medical evidence or the Veteran's statements, the claim fails on a direct basis. For the foregoing reasons, service connection for COPD is not warranted. ORDER Service connection for COPD is denied. REMAND The Veteran claims that his service-connected anxiety disorder is more severe than the current evaluation reflects. He maintains that he has daily panic attacks, and wakes through the night 3 to 4 times a night. He testified that his medication has been increased over the past year, and he still has sleep impairment, waking him 3 to 4 times per night. A Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Since the Veteran claims worsening of his anxiety disorder disability, the VA's duty to assist requires a "thorough and contemporaneous" medical examination. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, the case is REMANDED for the following action: 1. Schedule an appropriate VA psychiatric examination to determine the current severity of the Veteran's service-connected anxiety disorder. The claims folder must be made available to the examiner for review of the case, and the examination report should include discussion of the Veteran's documented medical history and lay statements. All indicated tests and studies should be performed, and the examiner should review the results of any testing prior to completing the report. 2. After completion of the above action, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case (SSOC) should be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs