Citation Nr: 1815757 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 15-14 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as secondary to the service-connected asbestosis. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2)). The Veteran appellant had active service in the United States Navy from February 1960 to January 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Nashville, Tennessee in which the Veteran's claim of entitlement to service connection for asbestosis was granted while his claim for service connection for chronic obstructive pulmonary disease (COPD) was denied. In October 2017, the Board requested a medical expert opinions pursuant to 38 U.S.C. § 5107(a) and 38 C.F.R. § 20.901. A medical opinion from a pulmonologist was rendered in December 2017. (In December 2017, the appellant and his representative were provided with a copy of the opinion and given 60 days in which to respond to the opinions; no response was submitted.) This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's COPD did not manifest during his active service. 2. The Veteran's COPD is not etiologically related to his active service or to his service-connected asbestosis. 3. The Veteran's service-connected asbestosis did not aggravate his COPD. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic obstructive pulmonary disease have not been met. 38 U.S.C. §§ 101, 106, 1101, 1110, 5102, 5103, 5103A, and 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran submitted his claim in February 2013, and he is seeking entitlement to service connection for COPD. The Veteran contends that he has had problems with breathing since he left the Navy. He further contends that his COPD has to have come from his service-connected asbestosis. I. Duties to Notify and Assist In relation to the appellant's service connection claim, VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A and 38 C.F.R. § 3.159. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The RO has obtained service, VA and private treatment records. VA medical opinions were obtained February 2014, October 2016, and December 2017. The resulting opinions described the Veteran's respiratory pathology, took into consideration the relevant history, and provided an adequate rationale for the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Veteran was provided with notice as to the medical evidence needed for service connection, as well as the assistance VA would provide and he was supplied with the text of 38 C.F.R. § 3.159. Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of his service connection claim. Neither the Veteran nor his representative has raised any issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board.); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Merits of the Claim In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim; an appellant prevails in either event. However, if the weight of the evidence is against an appellant's claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Review of the appellant's service medical treatment records reveals that the appellant had a chest x-ray in March 1961 that was normal. He had a negative chest x-ray in April 1962. The appellant underwent a service separation examination in January 1964, and the report of medical examination reflects that the appellant's lungs and chest were considered to be clinically normal. Radiographic examination was accomplished and the appellant's chest x-ray was normal. The evidence of record includes VA medical treatment records dated between October 2003 and December 2015. On various dates, the appellant's problem list included tobacco use disorder. An October 2003 note indicated that the appellant did not have a history of COPD. A December 2006 note indicated that the appellant had smoked one pack of cigarettes per day for 45 years. An April 2007 note states that the appellant had quit smoking and that he had no history of COPD. A May 2012 radiology report stated that there were changes indicative of COPD. A December 2012 note stated that the appellant had a diagnosis of COPD/asbestosis. A January 2014 note included a diagnosis of COPD. The evidence of record includes private medical treatment records dated in 2012 and 2013. A May 2012 note indicates that the appellant had worked around lots of chemicals in his civilian life after service and that he was a former smoker. A May 2013 note includes diagnoses of asbestosis, COPD and acute bronchitis. A VA medical opinion dated in February 2014 states that asbestosis does not cause COPD, emphysema or bronchitis. An October 2016 VA medical opinion states that there is no medical evidence that the Veteran's COPD was aggravated beyond its natural progression by his service-connected asbestosis. The physician further stated that these are separate and distinct conditions and one was not known to permanently aggravate the other. In December 2017, the Board obtained a VHA medical expert opinion. After reviewing the claims file, the VHA pulmonologist stated that asbestosis is a restrictive lung disease and that COPD is an obstructive lung disease. He also stated that emphysema is diagnosed by microscopic examination of lung tissue by a pathologist. The pulmonologist further stated that the appellant had COPD that was diagnosed in June 2012, and that the most common cause of COPD is long-term tobacco smoking. The pulmonologist concluded that the presence of bilateral pleural plaques in the appellant's lungs confirmed inhalation exposure to asbestos fibers, that these fibers reached the lining of the lungs (the pleura) and that the fibers caused calcium deposits to build up in the pleural tissue around them; he stated that this is called asbestos-related pleural disease. The pulmonologist opined that the appellant's asbestos-related pleural disease had no causal relationship to his COPD and that it was unlikely at all that the asbestos-related pleural plaques aggravated or worsened the appellant's COPD. Service connection may be granted for a disability resulting from disease or injury incurred in active service and for in-service aggravation of a preexisting injury or disease. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, the evidence 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the showing of 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). An alternative to showing chronicity in service is a showing of continuity of symptoms after discharge. The United States Court of Appeals for the Federal Circuit (Federal Circuit), however, has clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). COPD is not a chronic condition under 38 C.F.R. § 3.309. The provisions of 38 U.S.C. § 1103 prohibit the service connection of any disorder that is the result of disease or injury attributable to the use of tobacco products by a veteran during his active military service. Review of the evidence of record indicates that the appellant was initially diagnosed with COPD in 2012 - more than 48 years after the appellant's discharge from active duty. There was no evidence of any COPD in the service medical treatment records and there is no evidence of record to indicate that the appellant's COPD had its onset in service or is directly related to any incident of service. Furthermore, COPD is not a chronic condition under 38 C.F.R. § 3.309, so continuity of symptomatology is not an alternative means of establishing a nexus between the appellant's current COPD and service in this case. VA and private treatment records reflect the existence of diagnoses of asbestos-related pleural pathology and COPD. Under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran is service-connected for asbestos-related pleural pathology. However, there is no indication in the evidence of record that there is any etiological association between that service-connected asbestos-related pleural pathology and the appellant's COPD, including on an aggravation basis. The appellant argues that his COPD must have been caused by his service-connected asbestosis. However, neither the appellant nor his representative has submitted a medical opinion specifically linking the Veteran's COPD to his service-connected asbestosis. None of the VA medical treatment records or private medical treatment records in evidence shows any connection between the claimed COPD and any incident of service, including exposure to asbestos. While a December 2012 letter from a private physician indicated that the appellant was being treated for probable asbestosis and emphysema that could well be related to previous exposure in the military, the appellant has been diagnosed with COPD - not emphysema. In addition, just because something is theoretically possible does not render probative value to the possibility because the observation is speculative in nature. See Hood v. Shinseki, 23 Vet. App. 295, 296 (2009); Perman v. Brown, 5 Vet. App. 237, 241 (1993) (speculative or equivocal medical opinions may be considered "non-evidence" and have no probative value); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). On the other hand, the February 2014, October 2016, and December 2017 VA medical opinions state that the appellant's COPD is not etiologically related to the appellant's service-connected asbestos-related lung disability, to include on an aggravation basis. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to an appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Equal weight is not necessarily accorded to each piece of evidence contained in the record; every item of evidence does not necessarily have the same probative value. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). For example, pain is the sort of condition that is observable by a lay person. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). The Board has considered the Veteran's statements and those of the Veteran's representative about the etiology of the claimed COPD. 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 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, pulmonary conditions such as COPD are not the type of disorders as to which a lay person can provide competent evidence on questions of etiology or diagnosis, especially since pulmonary function tests and radiologic findings are necessary for a diagnosis of COPD; such testing requires specialized equipment and training and is therefore not susceptible to lay opinions. See Robinson v. Shinseki, 557 F.3d 1355 (2009). While the appellant is competent to say that he has been informed of his diagnosis of COPD, the Veteran does not have the expertise to state that there is a relationship between that diagnosed COPD and any current asbestos-related pulmonary pathology; a medical opinion would be required. See Davidson, supra. Therefore, the Board cannot give decisive probative weight to the opinions of the Veteran or his representative about the origins of the Veteran's COPD because they are not qualified to offer such opinions. Finally, the Board notes that there is medical evidence that the most common cause of COPD is long-term tobacco smoking and there are medical notations of record to the effect that the appellant has a tobacco use disorder and a decades-long history of smoking. As noted above, service connection cannot be granted for any disorder that is due to in-service cigarette smoking and therefore service connection cannot be granted for COPD based on cigarette smoking. The Board has scrutinized the record with a view towards ascertaining whether there is any basis to indicate that the claimed COPD was incurred by any incident of military service or any service-connected disability, to include on an aggravation basis, but it has gleaned no such supporting evidence or suggestion thereof. Schroeder v. West, 212 F.3d 1265 (Fed. Cir 2000). For the foregoing reasons, the preponderance of the evidence is against the appellant's claim of entitlement to service connection for COPD, claimed as secondary to the service-connected asbestos-related pleural disability. The benefit-of-the-doubt doctrine is therefore not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Thus, the Board finds that the appellant's claim for service connection for a COPD, including on secondary and aggravation bases, must be denied. ORDER Entitlement to service connection for COPD, including on secondary and aggravation bases, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs