Citation Nr: 1337332	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  13-16 232	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York



THE ISSUES

1.  Entitlement to service connection for chronic obstructive pulmonary disease (COPD) for reclassification purposes, to include as secondary to service-connected respiratory disability.

2.  Entitlement to service connection for COPD as a distinct ratable entity, to include as secondary to service-connected respiratory disability.

3.  Entitlement to service connection for atrial fibrillation, to include as secondary to service-connected respiratory disability.



ATTORNEY FOR THE BOARD

M. Postek, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1952 to May 1956.
      
This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, and an April 2013 rating decision by the RO in New York, New York.  

Historically, the Veteran was granted service connection for asbestosis in December 2008.  In January 2011 (as clarified in a May 2011 telephone contact), he filed a claim for an increased evaluation of this disability, as well as claims for multiple disorders on a secondary basis, including aortic stenosis.  In a March 2012 rating decision, the RO granted service connection for pulmonary fibrosis, emphysema, interstitial lung disease, and bronchiectasis as related to the asbestosis and increased the evaluation for the entire respiratory disability to 100 percent.  The RO deferred a decision on the aortic stenosis claim.

In a May 2012 written submission, the Veteran requested service connection for atrial fibrillation as secondary to his service-connected respiratory disability.  The RO treated this request as part of the deferred claim for aortic stenosis and denied service connection for both disorders in the May 2012 rating decision.  In the August 2012 notice of disagreement (NOD), the Veteran specifically indicated disagreement with the decision as to atrial fibrillation.  He also stated that he was not appealing the decision as to aortic stenosis at that time, and he has not expressed disagreement with that portion of the decision to date.  In August 2012 and September 2012 written submissions, the Veteran requested consideration of certain treatment and symptoms, claimed as due to the atrial fibrillation (as discussed in the remand portion below).

In the May 2013 statement of the case (SOC), the RO continued to adjudicate the claims of aortic stenosis and atrial fibrillation as one issue.  The Board notes, however, that the Veteran clearly indicated that he was only appealing the RO's decision as to atrial fibrillation in the May 2013 substantive appeal (VA Form 9, also referencing NOD content).  The issue before the Board is accordingly limited to the appeal as to atrial fibrillation, as recharacterized in the issues above.

In regard to the COPD claim, the Veteran clarified that he was requesting service connection for this disorder as secondary to emphysema.  See September 2012 claim and March 2013 written statement (clarifying original request).  The RO denied service connection for COPD in the April 2013 rating decision.

A review of the Virtual VA and VBMS electronic claims files reveals additional evidence of the Veteran's ongoing VA treatment (Virtual VA).  Both of the May 2013 SOCs reflect the RO's consideration of these records.  The Veteran also submitted evidence in September 2013, after certification of the appeal to the Board.  In this case, the Veteran filed his substantive appeals as to both issues in May 2013.  Therefore, the Board finds that, in the absence of a specific, written request for initial Agency of Original Jurisdiction (AOJ) review of this evidence, there is an automatic waiver of AOJ review, and to proceed with a decision is not prejudicial to the Veteran in this case.  See 38 U.S.C.A. § 7105(e)(1), (2) (West 2002, as amended, Pub. L. No. 112-154, § 501(a) (Aug. 6, 2012)) (applicable in cases where substantive appeal filed on or after Feb. 2, 2013).

The issue of entitlement to service connection for bilateral pulmonary hyperinflation, to include on a secondary basis, has been raised by the record (November 2013 written statement), but has not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over the issue, and it is referred to the AOJ for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to service connection for atrial fibrillation, to include as secondary to service-connected respiratory disability, 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.


FINDINGS OF FACT

1.  Service connection has been established for the respiratory disability classified as asbestosis with pulmonary fibrosis, emphysema, interstitial lung disease, and bronchiectasis.

2.  The medical evidence shows that the diagnoses of COPD and emphysema have been used interchangeably in describing a certain portion of the Veteran's respiratory symptoms, currently evaluated as emphysema without specific reference to COPD.


CONCLUSIONS OF LAW

1.  The requirements for service connection for COPD for reclassification purposes, to include as secondary to service-connected respiratory disability, have been met.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 4.14 (2012).

2.  The requirements for service connection for COPD as a distinct ratable entity, to include as secondary to service-connected respiratory disability, have not been met.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 4.14 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

In regard to the Veteran's claim of service connection for COPD for reclassification purposes, in the decision below, the Board has granted the appeal to this extent, and regardless of whether the notice and assistance requirements have been met as to this issue, no harm or prejudice to the Veteran has resulted.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.

In regard to the Veteran's claim of service connection for COPD as a distinct ratable entity, to the extent he made such a claim, the RO provided the Veteran with a notification letter in December 2012, prior to the initial decision on the claim in April 2013.  Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant.

Moreover, the requirements with respect to the content of the notice were met in this case.  In the December 2012 letter, the RO notified the Veteran of the evidence necessary to substantiate the claim for service connection, to include on a secondary basis, and of the division of responsibilities in obtaining such evidence.  The letter also explained how disability ratings and effective dates are determined.

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim.  The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein.  The record also includes written statements provided by the Veteran.

The Veteran was afforded a VA examination in February 2013 in connection with his current claim, in addition to the June 2011 VA examination addressing multiple disorders claimed as secondary to the service-connected asbestosis, including emphysema.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examination in this case is adequate, as it is predicated on a review of the claims file, as well as on an examination during which a history was solicited from the Veteran.

The Board acknowledges the Veteran's contentions in his March 2013 written submission regarding the adequacy of the February 2013 VA examiner's opinion.  In particular, in pertinent part, he indicated that the VA examiner did not specifically acknowledge his diagnosis of emphysema or his contention that his COPD was related to the service-connected emphysema and not asbestosis.  In light of the favorable decision as to the reclassification of the overall respiratory disability based on the sum of the medical evidence of record (to include the June 2011 VA examination report), the Board finds that there is adequate medical evidence of record to make a determination in this case; the medical records sufficiently address the central medical issue to allow the Board to make a fully informed determination.  Barr, supra.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).

VA has further assisted the Veteran throughout the course of this appeal by providing him with an SOC, which informed him of the laws and regulations relevant to the claim.  The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate.  Washington v. Nicolson, 21 Vet. App. 191 (2007).  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.


Law and Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  To establish a right to compensation for a present disability, a Veteran 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 - the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  The absence of any one element will result in denial of service connection.  Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006).  Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection is warranted for COPD for reclassification purposes, but not as a distinct ratable entity.

In this case, the Veteran has requested service connection for COPD as secondary to emphysema, and alternatively, as a lung disorder distinct from asbestosis, unless it is "agreed that [his] asbestosis and COPD are of the same disability."  See May 2013 VA Form 9; see also September 2012 claim and March 2013 written statement.  His primary concern appears to be identification of all diagnoses and symptomatology related to his respiratory disability for a potential cause of death claim, in the event he predeceases his wife.  See May 2013 VA Form 9; September 2013 written submission.

As an initial matter, the Board notes that service connection has been established for the respiratory disability classified as asbestosis with pulmonary fibrosis, emphysema, interstitial lung disease, and bronchiectasis, currently assigned a 100 percent evaluation under Diagnostic Code 6833, consistent with the special provisions regarding evaluation of respiratory conditions under 38 C.F.R. § 4.96, discussed in greater detail below.  

A review of the post-service medical records shows that the diagnoses of COPD and emphysema have been used interchangeably in describing a certain portion of the Veteran's respiratory symptoms.  See, e.g., March 2011, October 2011 VA treatment records.  In fact, the June 2011 VA examiner considered the Veteran's medical history in her examination report, noting that he received VA pulmonary treatment with a diagnosis of "COPD/asbestosis and pulmonary hypertension which is secondary to his COPD/fibrosis" in providing the positive opinion linking the claimed pulmonary fibrosis, emphysema, interstitial lung disease, and bronchiectasis to the service-connected asbestosis.  In reaching this determination, the examiner did not indicate that the Veteran's emphysema was a distinct disease separate from the COPD she identified in the medical history.

In addition, empysema is "one of several diseases known collectively as [COPD]," or, in other words, a subtype of COPD.  See Mayo Clinic, "Emphysema," http://www.mayoclinic.com/health/emphysema/DS00296; UpToDate medical database, accessed through Veterans Health Administration (both sources reviewed Nov. 2013).

The Board observes that the February 2013 VA examiner determined that it was less likely than not that the Veteran's COPD was caused by his asbestosis.  In so finding, the examiner stated that medical research indicates that COPD is related to smoking.  However, this opinion does not address the relationship between the COPD and emphysema diagnoses of record, which is significant considering the June 2011 VA examiner's findings as to emphysema, as well as the Veteran's contentions and the remainder of the VA treatment records.

Based on the foregoing, the Board concludes that a technical reclassification is warranted for the Veteran's service-connected respiratory disability, to add COPD to the portion currently listed as only emphysema (now COPD/emphysema).  Accordingly, the Veteran's claim is granted to this extent.

However, the Board concludes that the Veteran is not entitled to service connection for COPD as a separate ratable entity, to the extent he made such a claim.  In this regard, the Veteran's COPD/emphysema did not manifest in service or for many years thereafter.  The Veteran does not contend otherwise.  In fact, as discussed above, service connection for emphysema was established on a secondary basis to asbestosis, with the first diagnosis of asbestosis of record in 2002.  In addition, the diagnosis of COPD in the medical records represents the same medical disorder and symptoms as the already service-connected emphysema, and there is no suggestion in the record that there is another chronic obstructive respiratory disease in addition to emphysema not otherwise accounted for by the reclassification.
In regard to the actual evaluation for COPD/emphysema in relation to the Veteran's overall respiratory disability, the disability is currently rated under Diagnostic Code 6833 for asbestosis as the predominant disability, consistent with 38 C.F.R. § 4.96.  Under 38 C.F.R. § 4.96(a), ratings under Diagnostic Codes 6600 through 6817 and 6822 through 6847 will not be combined with each other.  Where there is lung or pleural involvement, ratings under Diagnostic Codes 6819 and 6820 will not be combined with each other or with Diagnostic Codes 6600 through 6817 or 6822 through 6847.  A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 

In addition, the Rating Schedule generally prohibits pyramiding (i.e., evaluating the same disability under different diagnostic codes), and the Court has held that pyramiding is disfavored "unless the regulation expressly provides otherwise."  Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010); 38 C.F.R. § 4.14.  Moreover, the rating criteria for emphysema and COPD (Diagnostic Codes 6603 and 6604, respectively) are identical, and both contemplate a 100 percent evaluation for pulmonary hypertension.  Pulmonary hypertension is also the basis for the 100 percent evaluation currently assigned for asbestosis under Diagnostic Code 6833.

In this case, the grant of service connection for reclassification purposes specifically recognizes the interchangeable diagnoses in the medical records for the service-connected obstructive lung disease.  Again, the record reflects that these diagnoses actually represent the same disease.  As such, while COPD is now classified with emphysema as part of the overall respiratory disability and its symptoms, the Veteran would not be entitled to separate compensation for the symptoms of the disorder under both the diagnostic codes for COPD and emphysema; such an action would amount to pyramiding.  Moreover, there is no indication that COPD/emphysema is the predominant respiratory disability such that there would be a question as to the appropriate evaluation considering the provisions of 38 C.F.R. § 4.96 at this time.

In reaching this decision, the Board acknowledges the Veteran's primary concern of recognizing all diagnoses related to his service-connected respiratory disability for future surviving spouse benefits for his wife; he is acutely aware that he is in receipt of a 100 percent evaluation for this disability and may not realize additional compensation for this disability himself.  This decision recognizes the connection that the medical evidence shows between the diagnoses of COPD and empysema and clarifies this portion of the service-connected respiratory disability.  To the extent a question arises regarding the use of a certain diagnostic code as a result of COPD/emphysema becoming the predominant respiratory disease in the future or otherwise, such an issue is for the RO to address at that time and does not preclude the grant of service connection for reclassification purposes.


ORDER

Entitlement to service connection for COPD for reclassification purposes, to include as secondary to service-connected respiratory disability, is granted.  The service-connected respiratory disability is reclassified as asbestosis with pulmonary fibrosis, chronic obstructive pulmonary disease (COPD)/emphysema, interstitial lung disease, and bronchiectasis.  

Entitlement to service connection for COPD as a distinct ratable entity, to include as secondary to service-connected respiratory disability, is denied.


REMAND

The Board finds that further development is necessary prior to final adjudication of the Veteran's atrial fibrillation claim.  In particular, while VA previously afforded the Veteran a VA heart examination in June 2011, the resulting opinion did not clearly address the etiology of the atrial fibrillation.

The Veteran contends that his atrial fibrillation, to include the need for a cardiac pacemaker and dilation of the left atrium, is secondary to his service-connected respiratory disability.  See, e.g., May, August, September 2012 written submissions.  Along with the May 2012 written submission, the Veteran included an article from his VA Medical Center which shows that atrial fibrillation is caused in most cases by heart disease and chronic lung disease, among other things.

VA and private medical records show that the Veteran has atrial fibrillation, a permanent pacemaker, and dilation of the left atrium of the heart.  See, e.g., June 2012 VA echocardiogram report; August 2012 VA treatment record.

In light of the above, there is evidence that the Veteran's current symptomatology may be related to his service-connected respiratory disability, thereby satisfying the low threshold for obtaining an opinion as part of VA's duty to assist, as articulated in McLendon v. Nicholson, 20 Vet. App. 79 (2006).

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) (2012).  Expedited handling is requested.)

1.  The RO/AMC should refer the Veteran's claims file to a VA physician for an opinion as to the nature and etiology of the Veteran's current atrial fibrillation and any related symptomatology.  An examination of the Veteran should be performed if deemed necessary by the individual providing the opinion.

The examiner is requested to review all pertinent records associated with the claims file.

It should be noted that service connection has been established for asbestosis with pulmonary fibrosis, COPD/emphysema, interstitial lung disease, and bronchiectasis.

It should also be noted that the Veteran's medical history includes coronary artery disease, aortic stenosis, atrial fibrillation status-post ablation, and use of a permanent pacemaker.  See, e.g., Massapequa Heart Group and North Shore University Hospital private treatment records (2008-2010); June 2011 VA heart examination report; June 2012 VA echocardiogram.

Specifically, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's atrial fibrillation manifested in or is otherwise related to his military service.

The examiner should also state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's atrial fibrillation was caused or permanently aggravated by the service-connected respiratory disability.

In rendering this opinion, the examiner is asked to specifically discuss the Veteran's pacemaker and his contention that his left atrium dilation is related to his atrial fibrillation.

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.)

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review.

2.  After completing the above action and any other development as may be indicated as a consequence of the action taken in the preceding paragraph, the case should be reviewed by the RO/AMC on the basis of additional evidence.  If the benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter 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).



______________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs