Citation Nr: 1753620	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  08-36 795A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a lung disability, to include as due to exposure to asbestos. 


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Timbers, Associate Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The Veteran served as a member of the United States Air Force, with active duty service from October 1958 through July 1971, and from August 1972 through 1981.

This appeal comes to the Board of Veterans' Appeals ("Board") from a February 2008 rating decision by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Petersburg, Florida (hereinafter Agency of Original Jurisdiction ("AOJ")).

In October 2010, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing, held at the RO.  A transcript of this hearing has been reviewed and associated with the Veteran's claims file.  

The Veteran's appeal has previously been before the Board.  Most recently, in June 2014, the Board denied the Veteran's claim for entitlement to service-connection for a lung disability.  Thereafter, the Veteran appealed this denial to the Court of Appeals for Veterans Claims ("Court/CVAC").  In an April 2016 Memorandum Decision, the Court vacated the Board's June 2014 denial and remanded the claim back to the Board for further consideration.  Specifically, the Court found the Board had relied on an inadequate medical opinion in denying the Veteran's claim.  

In response to the April 2016 Memorandum Decision, and in order to expedite the Veteran's appeal, the Board requested a specialist medical opinion from the Veterans Health Administration ("VHA") in March 2017.  38 C.F.R. § 20.901(a) (2017).  In response, an August 2017 VHA medical report was secured and associated with the claims folder for consideration.  As required by VA law and regulation, the Board provided the Veteran and his representative copies of this report and afforded him time to respond with additional evidence or argument.  See 38 C.F.R. § 20.903.  In response, the Veteran, through his representative, submitted an Informal Hearing Presentation in October 2017.  

This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS").  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.


FINDING OF FACT

The Veteran's current bronchitis, including symptoms of his currently diagnosed chronic obstructive pulmonary disease ("COPD"), began during, or were otherwise caused by, his active service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for bronchitis, including COPD, are met.  38 U.S.C. §§ 1103(b), 1110, 5103, 5103(a)5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.300(b)(1), 3.303 (2017).   


REASONS AND BASES FOR FINDING AND CONCLUSION

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017).

The VCAA required notice provisions were accomplished by numerous letters, including those dated in July 2007 and March 2009, which informed the Veteran of the information and evidence not of record that is necessary to substantiate his claim, the information and evidence that the VA will seek to provide, and the information and evidence the Veteran is expected to provide.  See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  The letters also informed the Veteran how disability ratings and effective dates are established.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board.  It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise

The Veteran was afforded the opportunity to appear and testify before the undersigned Veterans Law Judge ("VLJ") at a Travel Board hearing, held at the RO in October 2010.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who conducts 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, during the hearing, the VLJ noted the basis of the prior determinations and noted the elements of the claims that were lacking to substantiate the claims for benefits.  The VLJ specifically noted the issues as including the issues listed on the title page of this decision.  In addition, the VLJ 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 claims.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error.

Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.  Moreover, the neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . .").  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.

Lastly, the Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

General Laws and Regulations Governing Entitlement to Service Connection:

The Veteran seeks entitlement to service connection for a lung disability, to include COPD and chronic bronchitis.  In statements throughout his appeal, the Veteran alleges his current COPD disability is related to his active duty service, as he was treated for bronchitis several times during service.  Additionally, the Veteran states that his current lung disabilities are related to his exposure to asbestos during his active duty service, to include his exposure to and inhalation of construction dusts.  See e.g. November 2008 Statement in Support of Claim. 

In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.
Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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, 1167 (Fed. Cir. 2004).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Alternatively, VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  However, in Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)).

The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).  In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value.  In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007).

When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.  A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  For a claim to be denied on the merits, a preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

That being the relevant, generalized, law applicable to the Veteran's claim, the Board finds that the evidence of record warrants a finding of entitlement to service connection for a lung disability, to include the Veteran's chronic bronchitis and COPD, on a direct basis.  

First, following a review of the Veteran's medical records, the Board observes the Veteran has been diagnosed with various restrictive airways diseases since his separation from military service.  For example, the Veteran has current diagnoses for COPD and chronic bronchitis.  Therefore, the Veteran has satisfied the first element of service connection, the existence of a current disability.  See 38 U.S.C.  §§ 1110, 1131; See also Boyer, 210 F.3d 1351, at 1353.    
 
In making the above determination that the Veteran has two current respiratory disabilities, the Board has considered the Court's holding that when determining the scope of a claim, the Board must consider the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  In other words, the Board has considered all of the Veteran's respiratory diagnoses of record.  In this regard, COPD is defined as any disorder characterized by persistent or recurrent obstruction of bronchial air flow, such as chronic bronchitis, asthma, or pulmonary emphysema.  See Dorland's Illustrated Medical Dictionary (32nd ed. 2012) (emphasis added).  As such, chronic bronchitis is a type of COPD and is encompassed within the current COPD disability.  Therefore, COPD, by definition, includes the diagnosis of chronic bronchitis.  Moreover, the criteria used to evaluate COPD under VA regulations are identical to the criteria used to evaluate bronchitis.  See 38 C.F.R. § 4.97, Diagnostic Codes 6600, 6604.  In short, the current disability, whether called chronic bronchitis or COPD, is established.

Second, the Board observes that the Veteran's service treatment records ("STRs") document treatment for symptoms of coughing, congestion, and upper respiratory infections throughout the Veteran's military service.  For example, Veteran was treated on several occasions for coughing, congestion, and symptoms of an upper respiratory infection in 1968, February 1969, May 1969, January 1970, and March 1970.  Additionally, the Veteran was diagnosed with bronchitis in February 1968.

Following his separation from military service, the Veteran continued to experience chronic upper respiratory symptoms, including dyspnea, coughing, chest congestion, and wheezing.  The Veteran was diagnosed with COPD and asthma in November 2006.  See e.g. Tampa VAMC Records. 

Therefore, the primary question before the Board is whether a nexus exists between the Veteran's in-service diagnosis and treatment for bronchitis and his current diagnoses for COPD and chronic bronchitis.  Neither the Veteran's chronic bronchitis nor COPD respiratory conditions are an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a), and are therefore not entitled to presumptive service connection.  See Walker v. Shinseki, 708 F. 3d 1331, 1338-39 (Fed. Cir. 2013).  However, diseases that would be considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a), may still qualify for service connection under the three-element test for disability compensation listed in § 3.303(a).  Id.  In this regard, a chronic disease is defined as a disease "persisting over a long period of time."  See Dorland's Illustrated Med. Dictionary 359 (32d ed. 2012).  

As noted in the introduction, the Board requested a VHA medical opinion in February 2017, in response to the April 2016 CAVC Memorandum Decision.  In a June 2017 letter, a pulmonologist provided a favorable medical nexus opinion, on a direct basis, for the Veteran's current lung disability, including chronic bronchitis and COPD. First, the Board notes that the medical opinion provided finds no evidence which establishes that the Veteran has a current lung disability that was caused by, or otherwise etiologically related to his in-service exposure to asbestos.  In support of this determination, the medical opinion cites to the Veteran's medical reports, including chest x-rays, which show no evidence of pleural disease or asbestosis.  

However, the medical opinion finds that it is more likely than not that the symptoms the Veteran experienced during his active duty service, including coughing, congestion, and upper respiratory symptoms, are etiologically related to the Veteran's current diagnoses for chronic bronchitis and COPD. The Board observes that the examiner found the Veteran's symptoms, including those experienced in service, were at least as likely as not related to the Veteran's history of smoking.  

To the extent that the June 2017 VHA medical opinion finds the Veteran's current lung disability is related to his history of smoking, the Board notes that this does not prevent a finding of entitlement to service connection.  VA regulations prohibit service connection for any disability related to chronic tobacco use (smoking) for claims received by VA after June 9, 1998, which is the case here.  See 38 U.S.C. § 1103; 38 C.F.R. § 3.300; Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, 112 Stat. 685, 865-66 (1998).  However, service connection is not prohibited if the disability can be service-connected on some basis other than a Veteran's use of tobacco products during service, or if the disability became manifest during service.  See 38 U.S.C. § 1103(a); 38 C.F.R. § 3.300(b)(1).  

In the instant appeal, the Veteran's STRs show he experienced intermittent symptoms of bronchitis throughout his time in service.  Notably, the Veteran was diagnosed with bronchitis during his active duty service, in February 1968.   The Veteran was also reported to be a smoker, both during his active duty service, and following his separation from military service.  In addition to this history of smoking, the June 2017 VHA medical opinion noted that the Veteran was exposed to construction dust during his active duty service; this finding has also been conceded by the Board.  The medical opinion continues by stating that both a history of smoking and exposure to construction dusts are known to cause bronchitis.  Thus, this medical opinion, finds that the Veteran experienced symptoms of his current COPD and chronic bronchitis disabilities during his active duty service, and that these symptoms were caused by both the Veteran's history of smoking and his in-service exposure to construction dusts.   In light of this medical opinion, the Board finds 38 C.F.R. § 3.300(b)(1) applies, and the Veteran is not precluded from establishing service connection, even though he has a significant history of in-service and post-service smoking

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  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.  38 C.F.R. § 3.102.

In conclusion, after a thorough review of the evidentiary record, the Board concludes the weight of the evidence supports a finding of service connection for the Veteran's chronic bronchitis, including his current COPD.  This finding is appropriate in light of the Veteran's STRs documenting numerous instances of lower respiratory symptoms and continued treatment for chronic bronchitis after separation.  The Board additionally finds the June 2017 VHA medical opinion to be probative and entitled to significant weight.  Based upon the foregoing, and affording all benefit of doubt to the Veteran, service connection for chronic bronchitis, including COPD, is granted.  See 38 U.S.C. §5107; 38 C.F.R. § 3.102.


ORDER

Service connection for bronchitis, including COPD, is granted, subject to the laws and regulations governing the award of monetary benefits.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs