Citation Nr: 1721086 Decision Date: 06/09/17 Archive Date: 06/21/17 DOCKET NO. 09-10 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD). WITNESSES AT HEARING ON APPEAL The Veteran and B.D. ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1977 to February 1980, from August 1980 to August 1983, from February 2003 to May 2004, and from February 2005 to June 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2012, a videoconference Board hearing was held before the undersigned; a transcript of the hearing is in the record. In September 2012, the Board remanded the matter for additional development. The Veteran was previously represented by attorney David Huffman. In February 2016, he was notified that VA had cancelled Mr. Huffman's authority to represent VA claimants. He has not appointed a new representative. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT COPD was not manifested during the Veteran's service and it is not shown to be related to his service, to include as due to exposure to environmental toxins therein. CONCLUSION OF LAW COPD was not incurred in or caused by the Veteran's active duty service, and service connection for COPD is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duty to notify was satisfied by an April 2007 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). During the June 2012 videoconference Board hearing, the undersigned advised the Veteran of what is needed to substantiate the claim. The hearing was in compliance with required procedures. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Moreover, the Veteran's testimony reflects that he is aware of what is necessary to substantiate the claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (noting that actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. All of the relevant development requested by the Board's September 2012 remand was fully completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Agency of Original Jurisdiction (AOJ) arranged for a VA examination in April 2016, which the Board finds to be adequate as it included a review of the Veteran's history and physical examination that included all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). This examination, in the Board's judgment, shows a thorough consideration of the disability on appeal and provides the necessary information to adjudicate the claim. The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A Veteran may establish service connection for diseases not subject to presumptive service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has recently held that for purposes of § 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). 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, (e.g., a broken leg), (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. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. The Veteran contends that he has COPD that was caused or aggravated by exposure to toxins and sand storms during his service in Kuwait and Iraq during Operation Iraqi Freedom. His STRs are silent for any complaints, findings, treatment, or diagnosis of a respiratory/pulmonary disability. On March 2004 post-deployment assessment following his Persian Gulf service, he reported that he had developed difficulty breathing during the deployment. On March 2004 demobilization examination, he reported smoking 1.5 packs per day for 27 years, and he denied any history of asthma or breathing problems, shortness of breath, bronchitis, wheezing problems, the use of an inhaler, chronic cough, hay fever, or chronic/frequent colds; there were no respiratory or pulmonary diagnoses. On July 2004 VA treatment, the Veteran reported that he smoked one pack of cigarettes per day; on physical examination, lung hemidiaphragms were fixed and nonmotile but he still retained breath sounds; the impressions included mild COPD and chronic tobacco use disorder. On January 2005 VA treatment, he reported that he smoked one to 1 1/4 packs per day and was short of breath often, more so when lying down; the impressions included COPD, and he was instructed to stop smoking as soon as possible. On May 2008 VA treatment, he reported that he smoked one pack of cigarettes per day, with a history of 21 or more years. On June 2011 private treatment, he reported that he had smoked one pack of cigarettes per day for 36 years. Subsequent treatment records reflect consistent treatment for COPD. At the June 2012 Board hearing, the Veteran testified that while he served in Iraq, for just over one year, he was exposed to frequent sand storms and environmental toxins from burn pits of waste and sewage. He testified that there was a clear difference in his breathing problems after his service in Iraq compared to before his deployment. He testified that he had drastically reduced his smoking to 4 or 5 cigarettes per day after he was diagnosed with an aneurysm in May 2011. On April 2016 VA examination (pursuant to the Board's remand), the Veteran reported that he was in Anwar province in Iraq in 2003 to 2004 for a one-year deployment, where he was exposed to environmental toxins; he reported that he had difficulty breathing due to the heat and walking in the sand. He reported that he sees his VA primary care provider once per year for COPD and he uses two inhalers, three to four times per week. He reported waking up in the middle of the night with shortness of breath. An August 2013 chest X-ray showed no active chest disease. The examiner noted that respiratory testing had not been performed because the "COPD treatment records show that the etiology for [the Veteran's] COPD is tobacco abuse". The examiner opined that the Veteran's COPD is less likely than not incurred in or caused by service. The examiner opined that, after reviewing the record and conducting the examination, there is no evidence for a nexus between the Veteran's COPD and his military service. The examiner's review of the STRs revealed that there is no evidence that his COPD occurred in or was caused by his military service. The examiner noted that the Veteran has an extensive smoking history of about 37 years (as he stated that he started smoking at age 20 during service and, at the time of examination, he was age 57 and still smoking). The examiner opined that the etiology of the Veteran's COPD is most likely tobacco abuse, citing current medical literature indicating that tobacco smoking is overwhelmingly the most important risk factor for COPD. The weight of the evidence is against a finding that COPD manifested in service, or that the Veteran's COPD was related to his service or exposures therein. His service treatment records do not show any complaints, findings, treatment, or diagnosis with respect to COPD. The April 2016 VA examiner opined that, due to a heavy history of cigarette use, the Veteran's COPD was less likely than not related to his active duty service. The Board finds that this medical opinion is entitled to great probative weight, as it took into account a thorough review of the Veteran's assertions, his claims file, and his medical history. The April 2016 VA examiner's opinions also include historically accurate explanations of rationale that cite to factual data and current medical literature. Further, the April 2016 VA examiner clearly reviewed all of the evidence of record, including the Veteran's contentions that his COPD was related to exposure to environmental toxins in Iraq. The only competent medical opinion evidence in the record regarding a nexus between the Veteran's COPD and his service is the report of the April 2016 VA examination and opinion, which the Board finds to be probative and (for the reasons stated above) persuasive. Regarding the Veteran's own opinions that his COPD was due to his service, although lay persons are competent to provide opinions on some medical issues (see Barr, 21 Vet. App. at 303, 309), as to the specific issue in this case, the probable etiology of a disorder such as COPD falls outside the realm of common knowledge of a lay person. He has not demonstrated or alleged expertise in determining a medical nexus, and he does not offer any supporting medical opinion or medical treatise evidence. Therefore, his opinions in this matter have no probative value. See Jandreau, 492 F. 3d at 1372. Accordingly, the preponderance of the evidence is against the claim of service connection for COPD, and the claim must be denied. ORDER Service connection for COPD is denied. ____________________________________________ L. B. YANTZ Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs