Citation Nr: 1418582 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 11-26 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for a bilateral foot disability manifested by numbness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from April 1947 to January 1950. The Veteran died in January 2013. In November 2013, the RO accepted the Veteran's widow as the substitute for the Veteran for the claims pending at the time of his death. These matters come before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Manila (Pasay City), Republic of the Philippines. In May 2011, the Veteran and his spouse testified before a Decision Review Officer in Manila, Republic of Philippines. A transcript of that hearing is of record. These matters were previously before the Board in January 2013 and were remanded for further development. They have now returned to the Board for further appellate consideration. The Board finds that the RO substantially complied with the mandates of the remand and will proceed to adjudicate the appeal. FINDINGS OF FACT 1. In 2010, the Veteran filed a claim for service connection for COPD and asthma due to smoking in service. 2. The earliest evidence of COPD was more than 50 years after separation from service. 3. The most probative evidence of record is against a finding that the Veteran had COPD causally related to active service. 4. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has asthma causally related to, or aggravated by, active service. 5. The earliest evidence of bilateral foot numbness is more than 50 years after separation from service. 6. The most probative evidence of record is against a finding that the Veteran had a bilateral foot disability manifested by numbness causally related to, or aggravated by, active service. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD have not been met. U.S.C.A. §§ 1112, 1113, 1116, 1131, 5107 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.307, 3.309(2013). 2. The criteria for service connection for asthma have not been met. U.S.C.A. §§ 1112, 1113, 1116, 1131, 5107 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.307, 3.309(2013). 3. The criteria for service connection for a bilateral foot disability manifested by numbness have not been met. U.S.C.A. §§ 1112, 1113, 1116, 1131, 5107 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in October 2010. The appellant was notified in November 2013 that she had been substituted as claimant and was advised that she could submit additional evidence. VA has a duty to assist the appellant in the development of the claims. The claims file includes service treatment records (STRs), post service medical records, and the statements of the Veteran in support of the claims. A memorandum from the Social Security Administration (SSA), in response to a November 2013 VA request for records, reflects that the Veteran's medical records have been destroyed and, therefore, are unavailable. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims for which VA has a duty to obtain. 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). VA opinions were obtained in January 2014. In an April 2014 appellant brief, the appellant's representative argued that the VA opinions were inadequate. The representative argued that the opinion with regard to COPD, focused on "the COPD to the exclusion of everything else and the examiner failed to provide any rationale for the conclusions reached." The Board disagrees. The claims file does not reflect that the Veteran had a diagnosis of asthma; the only diagnosed respiratory or pulmonary disability was COPD. The Veteran was deceased at the time of the clinical opinion. Thus, the clinician had no other diagnosis, or symptoms, upon which to base a nexus opinion. In addition, the clinician did provide a rationale for his conclusion, as discussed in further detail in the Board's analysis. With regard to the claimed bilateral foot disability, the representative argued that the clinician "failed to state whether there was any sort of foot condition and, if so, whether it was due to service." As noted above, the Veteran died prior to a VA examination; thus, the only evidence upon which the clinician could base an opinion was the evidence of record, which did not include any diagnosed foot disability, or clinical findings with regard to the feet. In addition, the only symptom identified by the Veteran was "numbness". The Board finds that adequate opinions have been obtained. The reports are predicated on the Veteran's reported symptoms and the clinical records. Adequate rationale has been provided where necessary. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system are considered as a chronic disease. In each case where service connection for any disability is being sought, 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 medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Analysis The Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. COPD & Asthma In a VA Form 21-526, dated in October 2010, the Veteran asserted that he has COPD and asthma due to smoking in service. The Veteran also testified at the May 2011 DRO hearing that he was encouraged to smoke cigarettes in service and that it is his sole contention that his COPD and asthma were incurred during his smoking in service. (See DRO hearing transcript, page 2.) The Veteran may not be service connected for a disability attributable to his use of tobacco during service. The Veteran filed his claim for service connection in 2010. Pursuant to 38 C.F.R. § 3.300, service connection will not be considered for injury or disease attributable to a Veteran's use of tobacco during service for claims received by VA after June 9, 1998. Regardless of the Veteran's contention that he has COPD and asthma due to smoking in service, the Board has also considered whether the Veteran may have COPD and asthma due to some incident in service, other than smoking, but finds that the evidence does not support such a finding. The Veteran's STRs reflect that he was seen on May 22 and 23, 1947 for nasopharyngitis acute catarrhal (an inflammation of the mucous membrane, especially in the air passages of the head and throat, with a free discharge of mucous. (See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007).) The records reflect that the Veteran was a 17 year old and in good health until a week earlier when he had developed a sore throat and malaise. He had a low grade fever off and on for several days. He had no neck stiffness, headache, or gastrointestinal symptoms. The impression was upper respiratory infection. A May 26 1947 x-ray of the chest was negative. A May 29, 1947 notation reflects that the chest was clear to percussion and auscultation. The Veteran was discharged to duty on June 2, 1947. He was also seen in June 1947 at the allergy clinic. He was seen again in December 1948 for nasopharyngitis, acute, catarrhal, moderate. He was treated in his quarters. The STRs do not reflect a chronic condition of asthma or COPD. The Veteran's January 1950 report of medical examination for discharge purposes reflects that a chest x-ray was negative. In addition, he was assigned a physical profile of "1" for "P" for physical capacity and stamina. A "1" reflects that the Veteran had a high level of medical fitness with no limitations. Post service, in April 1973, the Veteran filed a claim for service connection for a back disability. The Board finds that if he had chronic pulmonary problems at that time, it would have been reasonable for him to have filed a claim for such when he filed a claim for service connection for a back disability. Post service records reflect that he was seen in April 1973 for anxiety reaction. It was noted that the Veteran had pounding of the heart, dyspnea, nausea, and a precordial pain radiating into his left shoulder. It was noted that no significant physical abnormality was found. The report is entirely negative for any findings of COPD and/or asthma. September 2001 VA clinical records reflect that the Veteran smokes two packs of cigarettes a day. Upon examination, the Veteran's lungs were clinically clear to auscultation. The Veteran had a diagnosis of tobacco abuse. He was encouraged to cut back or quit smoking. March 2004 VA clinical records reflect that the Veteran denied cough, shortness of breath, or dyspnea. He was noted to have a past medical history of tobacco abuse. He was counseled on the effects of smoking and strongly advised to quit. September 2006 VA clinical records reflect that the Veteran denied cough, shortness of breath, or dyspnea. He was noted to have a past medical history of tobacco abuse in remission since approximately March 2006. A November 2010 VA record reflects that the Veteran had a diagnosis of COPD. This is the earliest clinical evidence of COPD, and is approximately 60 years after separation from service. A January 2011 handwritten report from Dr. I. L. reflects that the Veteran was seen in August 2010 because of a cough and depnea [sic]. It was noted that he "is a smoker and a known case of COPD." A handwritten statement on a prescription form from University of Santo Tomas Hospital, incorrectly dated January 2010, reflects that the Veteran was seen for a COPD acute exacerbation in March 2010. There is no clinical diagnosis of asthma. A January 2014 VA clinical opinion is of record. It reflects the opinion of the clinician, after a review of the evidence of record, that it is less likely than not that the Veteran has COPD causally related to service. The clinician stated, in pertinent part, as follows: Based on the above facts and supporting documents, the veteran has respiratory condition, specifically COPD, as of January 1, 2010. 'Chronic obstructive pulmonary disease (COPD) is a common respiratory condition involving the airways and characterized by airflow limitation' (uptodate.com). The most common symptoms of COPD are sputum production, shortness of breath and productive cough which are present for a prolonged period worsening over time (Wikipedia.org). However, review of record did not show any pulmonary findings nor manifestations of pulmonary symptoms that may indicate the presence of the said condition during service nor at time as late as 1973. The Board finds that there has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has COPD and/or asthma due to some incident in service, to include the acute episodes of nasopharyngitis, acute catarrhal/upper respiratory infection. The incidents in service were acute and transitory as the Veteran's lungs did not have significant abnormalities upon separation, or in the decades after separation. Any statement by the Veteran or the appellant that the Veteran had COPD and/or asthma since service is less than credible given the record as a whole, to include the STRs and post service clinical records. The earliest diagnosis of a post service chronic pulmonary or respiratory disability is approximately 60 years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran did not contend that he had a pulmonary disability causally related to active service, other than smoking, and there is no clinical evidence to support such. In addition, the appellant has not been shown to have the education or training necessary to provide such a competent opinion. While lay persons are competent to provide a probative opinion as to some issues, the Board finds that a lay person is not competent to state that COPD and/or asthma in a person who abused tobacco is due to incidents of acute nasopharyngitis or an upper respiratory infection many decades earlier. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, the evidence does not reflect that the Veteran has a diagnosis of asthma, the clinical opinion of record is against a finding that the Veteran's COPD is causally related to service, the earliest evidence of a pulmonary disability is six decades after separation from service, and service connection is not warranted for a disease attributable to the Veteran's use of tobacco during service. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for COPD and/or asthma. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Bilateral Foot Numbness The Veteran testified at May 2011 DRO hearing that he has numbness of the feet from wearing oversized boots and walking through the jungle in service. He reported that his numbness "comes and goes" (See DRO hearing transcript page 5.) The Veteran's STRs are negative for any complaints of, or treatment for, numbness of the feet. The Veteran's January 1950 report of medical examination for discharge purposes reflects that extremities, to include the bones, joints, muscles, and feet, had no significant abnormalities. His neurological examination also revealed no significant abnormalities. He was assigned a physical profile of "1" of the lower extremities. A "1" reflects that the Veteran had a high level of medical fitness with regard to the lower extremities (e.g. he did not have any limitations). The claims file does not include a diagnosis of a disability manifested by bilateral foot numbness. A January 2014 VA clinical report reflects the opinion of the clinician that it is less likely than not (less than 50 percent probability) that the Veteran had a bilateral foot disability incurred in, or caused by, the service. The clinician stated, in pertinent part, as follows: Review of the Veteran's STRs showed no evidence of any complaints, diagnosis nor treatments for any foot conditions while in military service. Review of all records show no diagnosis of any neurologic condition specially of both feet at anytime. VA clinical records for the period of Sept. 2001 to June 2009 [showed] normal neurological findings. Medical evidence from Philippine based doctors, I.A. L[.], E.J. A[.] and the Veteran's Memorial Medical Center likewise noted no findings of any neurological condition most specially pertaining to both his feet. No medical evidence was submitted to show that this claimed numbness to both feet manifested to a compensable degree within the initial post-service presumptive period of one year. Numbness is a symptom and not a diagnosis. The medical diagnoses that can cause this are as varied as the type, nature and intensity of the numbness. Veteran has expired on Jan. 4, 2014. Even up to his demise, there is no medical evidence submitted that showed any diagnosis that would account for the numbness of both feet. Therefore, veteran's claimed numbness of both is feet is less likely than not due to or related to his wearing of oversized boots, walking through the jungle, and other activities in the performance of his duties while in military service. The Board finds that numbness alone, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a disability for which service connection may be granted. The Board acknowledges that the Veteran testified that he has had numbness of the feet "off and on" since service; however, the Board finds that the Veteran is less than credible as to continuity of symptoms since service based on the record as a whole, to include the STRs and post-service records. In April 1973, the Veteran filed a claim for service connection for a back disability. The Board finds that if the Veteran had bilateral foot problems at that time, it would have been reasonable for him to have filed a claim for such at that time. Post service records reflect that he was seen in April 1973 for anxiety reaction. It was noted that no significant physical abnormality was found. It was noted that the Veteran had pounding of the heart, dyspnea, nausea, and a precordial pain radiating into his left shoulder. The report is entirely negative for any complaints of numbness of the feet. In 1979, the Veteran filed a claim for service connection, or nonservice-connected pension, for an eye disability. He did not file a claim for a bilateral foot disability. Again, the Board finds that if the Veteran had a chronic disability of the feet, it would have been reasonable for him to have filed a claim for it at that time. September 2001 VA clinical records reflect a past medical history of BPH (benign prostatic hypertrophy) and low back pain. March 2004 VA clinical records reflect a past medical history of BPH, low back pain, dyslipidemia, cutaneous larva migrans, and tobacco abuse. September 2006 VA clinical records reflect a past medical history of BPH, low back pain, dyslipidemia, tobacco abuse, hyperglycemia, and osteoarthritis. The records are negative for any diagnosis of a bilateral foot disability manifested by numbness, or complaints of such. The earliest complaint of bilateral foot numbness is in 2010, more than 60 years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson, 230 F.3d at 1333. In addition, the most probative evidence, the clinical records more contemporaneous to service, is against a finding of an organic disease of the nervous system, manifested by foot numbness, compensable to 10 percent within one year of active service. In sum, there is no competent diagnosis of a foot disability manifested by numbness and no clinical evidence to support any such symptoms causally related to active service. In addition, neither the Veteran nor the appellant, has not been shown to have the education or training necessary to provide such a competent opinion. While lay persons are competent to provide a probative opinion as to some issues, the Board finds that a lay person is not competent to state that bilateral foot numbness in an 80 year old man is causally related to service six decades earlier. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana, 24 Vet. App. at 435; See Jandreau, 492 F.3d at 1377 n.4. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a disability manifested by bilateral foot numbness. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to service connection for asthma is denied. Entitlement to service connection for a disability manifested by bilateral foot numbness is denied. ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs