Citation Nr: 1757533 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-14 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) with smoking induced emphysema. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1991 to July 1991 and from April 2003 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010 and February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In June 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the electronic file. The Board notes that the Veteran has been service-connected for posttraumatic stress disorder (PTSD) and therefore has re-characterized the issue of entitlement to service connection for hypertension to include as secondary to PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran and his representative if further action is required on his part. FINDING OF FACT The competent evidence of record fails to show that the Veteran's COPD with smoking induced emphysema was incurred in service, or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for COPD with smoking induced emphysema have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. 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. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); 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. §§ 5103(a); 38 C.F.R. § 3.159 (b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist has been met. All identified VA and private medical evidence has been associated with the claims file. The Veteran has been afforded appropriate VA examinations. The examiners who conducted the most recent examinations had access to and reviewed the claims file and also examined the Veteran. Testing was conducted which allows the claim to be accurately rated. II. Service Connection for COPD with Smoking Induced Emphysema Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt 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 question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran seeks service connection for COPD with emphysema which he contends is related to his active service. The Veteran asserts that this COPD with emphysema is due to exposure to flight line fumes and/or exposure to environmental hazards in Iraq. The Veteran's service treatment records (STRs) are negative for treatment for respiratory symptoms and/or a diagnosis of a respiratory disorder while in service. The Veteran's post service medical records indicate he was first diagnosed with COPD in March 2007. A report from the Veteran's private physician dated May 2007 stated that the Veteran had "evidence of mild air flow obstruction on pulmonary function testing done in March 2007" that was "consistent with mild smoking-induced chronic obstructive lung disease (emphysema)." The physician further noted that a CT of the chest conducted on March 5, 2007 "shows bi-apical patches of emphysema consistent with smoking induced COPD." The physicians' assessment was "mild fixed obstructive lung disease consistent with smoking induced COPD." The Veteran underwent a VA respiratory examination in November 2016. The examiner noted that the Veteran was diagnosed with emphysema and COPD in 2007. The examiner also noted that the Veteran stated that he believes his condition is due to flight line exposure in service. The examiner documented that pulmonary function testing and X-ray findings confirmed COPD/emphysema. The examiner determined that it is less likely than not that the Veteran's COPD and emphysema were incurred in or caused by an in-service injury, event or illness. The examiner based her opinion on her review of the objective medical evidence of record which found that the Veteran was diagnosed with COPD/emphysema by an outside provider in 2007. The examiner noted that the Veteran's history includes a more than 40 pack per year smoking habit that started in approximately 1967. The examiner cited a current medical article that confirms that the Veteran's long history of smoking is more likely the cause of COPD/emphysema than the Veteran's three months of service in Iraq - from May 2004 to August 2004. (Https: //www.uptodate.com/contents/chronic-obstructive-pulmonary-disease-risk-factors-and-risk-reduction?source=see_link). The examiner opined that "direct cause and effect working on a flight line causing COPD/emphysema is not noted as being more significant than the +40 year pack year history of smoking. Veteran's chronic cough during post deployment questionnaire is a subjective notation vs. objective medical evidence." The examiner further stated that she "could not opine with at least 50% confidence that the veteran's current diagnosis of COPD/emphysema is directly related to chronic cough or environmental exposure during service." At his hearing, the Veteran testified that he believed his exposure to fumes from flight lines and/or other environmental hazards, while he was stationed in Iraq from approximately May to August 2004, is the cause of his COPD. The Veteran testified that no respiratory condition was noted on his separation physical examination and that he was not diagnosed with COPD until 2007. After a careful review of the evidence, the Board finds that service connection for COPD with emphysema must be denied because the competent evidence of record does not show that COPD with emphysema was caused by service, including as due to exposure to environmental hazards while in Iraq. The medical evidence of record does not establish a connection between the Veteran's COPD with emphysema and his time in service. The only evidence of record which links COPD with emphysema to active duty is the Veteran's own allegations and opinions. To the extent that the Veteran's statements are offered as a nexus opinion, that is, an association between his COPD with emphysema and his flight line service, while the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, see Barr v. Nicholson, 21 Vet. App. 303 (2007), and under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation, Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Veteran, as a lay person, is not competent to offer a nexus opinion with regard to his complaints and their connection to active service, as this is a complex question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board therefore finds that the Veteran's opinion as to an association between his COPD with emphysema and his service is beyond his lay capacity and is of no probative weight. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's responsibility to assess the probative value of all medical and lay evidence). There is no competent evidence of record which links the respiratory disorder to the Veteran's active duty service. The Board finds the opinion included in the November 2016 VA examination is entitled to probative weight. The examiner had access to and reviewed the claims file and also examined the Veteran. An etiology opinion was provided which was supported by an adequate rationale with citations to appropriate evidence in the record as well as medical treatises. This opinion weighs against the Veteran's claim. For these reasons, the Board therefore finds that the preponderance of the probative evidence of record weighs against the claim of service connection, and the benefit-of-the-doubt doctrine does not apply. Gilbert, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for COPD with smoking induced emphysema is denied. REMAND While the Board regrets the delay, it finds a remand is needed to adjudicate the Veteran's claim for entitlement to service connection for hypertension, to include as secondary to PTSD. Regarding the Veteran's claimed hypertension, the Board acknowledges that the Veteran is competent to report that he was treated for hypertension and had a diagnosis of hypertension during his active duty service. The Board finds these competent reports credible, because they have been supported by other competent evidence of record, including the Veteran's STRs. Additionally, the Veteran's outpatient treatment records confirm a diagnosis of hypertension. Notably, these findings render the November 2016 VA examination of this issue inadequate because it shows that the medical opinion was based on an inaccurate factual premise. See VA Examination, (November 25, 2106) (noting that the Veteran did not have nor was ever diagnosed with hypertension). see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value). Consequently, this issue must be remanded for a new examination to fairly adjudicate the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain any VA medical treatment records dating from February 2017 forward and associate them with the claims file. 2. Provide the Veteran an opportunity to submit any outstanding private treatment records relating to hypertension. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the claims file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran of such and provide him with an opportunity to submit those records directly. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The electronic file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The examiner is asked to provide opinions as to the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension had its onset during, or is otherwise related to his active duty service? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is proximately due to, or alternatively, aggravated (permanently worsened beyond normal progression) by his service-connected PTSD. 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 conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Then, readjudicate the appeal. If the benefit sought is not granted in full, furnish the Veteran and his representative a supplemental statement of the case and, after allowing an appropriate period of time for response, return the case to the Board. The appellant and his representative have 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 2014). ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs