Citation Nr: 1817119 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 10-20 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active service in the United States Army from September 1978 to July 1992. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Cleveland, Ohio. In July 2011, a Board videoconference hearing was held before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In June 2012, and again in September 2017, the Board remanded the issue on appeal for additional development; the case has now been returned to the Board for appellate review. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). That holding was expanded to encompass other conditions in Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (claimant's identification of the benefit sought does not require technical precision). The appellant's application for benefits listed her claim as one for chronic bronchitis and sinusitis plus headaches and she has described symptoms of nasal congestion, sinus tenderness, headaches, productive cough, and shortness of breath. Review of the medical evidence of record reveals diagnoses of asthma, chronic obstructive pulmonary disease (COPD), acute recurrent bronchitis and acute recurrent. The Board has therefore recharacterized the issue on appeal as listed on the first page, above. 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 smoked cigarettes during and after her active service. 2. The Veteran's asthma did not manifest during her active service. 3. The Veteran's COPD did not manifest during her active service. 4. The Veteran's acute recurrent bronchitis is not etiologically related to service. 5. The Veteran's acute recurrent sinusitis is not etiologically related to service. 6. The Veteran's asthma is etiologically related to her cigarette smoking. 7. The Veteran's COPD is etiologically related to her cigarette smoking. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disorder, to include asthma, chronic obstructive pulmonary disease, acute recurrent bronchitis and acute recurrent sinusitis, 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 is seeking entitlement to service connection for a respiratory disorder. The Veteran testified during her July 2011 Board videoconference hearing that she currently experienced sinusitis and bronchitis. She further stated that the related symptoms had been continuous since service. 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 provided adequate notice in a letter sent to the Veteran in February 2008. Next, VA 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. The RO has obtained Social Security Administration (SSA) disability benefits records. VA medical opinions were obtained by the RO in January 2017, and September 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). A remand from the Board or from the United States Court of Appeals for Veterans Claims (Court) confers upon a veteran the right to substantial, but not strict, compliance with that order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this case, pursuant to the June 2012 Board remand, VA medical treatment records were obtained and the RO obtained a medical opinion after examination of the Veteran was accomplished. In addition, SSA records were obtained and associated with the evidence of record. Pursuant to the September 2017 remand, a VA medical opinion was obtained. Therefore, substantial compliance has been achieved. The Veteran was provided with notice as to the medical evidence needed for service connection, as well as the assistance VA would provide and she 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 her service connection claim. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 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 reported a history of three weeks of a productive cough in August 1989. A chest x-ray was negative. The clinical assessment was bronchitis. The appellant was diagnosed with sinusitis in February 1990. In March 1990, the appellant was treated for sinusitis with headaches. In June 1990, during a work-up for her urticaria, the appellant denied having hay fever; she also denied having asthma. She said she had sinus problems two to three times per year; radiographic examination of her sinuses was normal. The appellant was noted to have smoked one pack to a pack-and-a-half of cigarettes for 12 years. In December 1991, the appellant complained of having a cold for three days. She denied having blood-streaked sputum. She also denied having a crusty yellow/green or foul nasal discharge. The clinical assessment was bronchitis. The appellant was seen again a few days later and her chest x-ray was negative. The clinical assessment was sinusitis and she was prescribed antibiotics. The appellant underwent a service separation examination in April 1992; she reported having frequent colds on the associated report of medical history. The report of medical examination reflects that the appellant's respiratory system was considered to be clinically normal as were her sinuses and nose. The appellant was noted to smoke one-half of a pack of cigarettes per day. Radiographic examination was accomplished and the associated chest x-ray report states that the appellant's lung fields were clear with no evidence of active pulmonary disease. After service, the appellant submitted a claim for service connection for chronic bronchitis/sinusitis and headaches in August 1992. (The Board notes that the appellant is service-connected for migraine headaches.) The evidence of record at that time did not show the presence of any chronic condition and the claim was denied in a rating decision issued in June 1995. The claim was subsequently reopened and remanded in a Board decision issued in June 2012. The case was again remanded in September 2017. Review of the evidence of record reveals private medical evidence which shows that the appellant sought treatment for complaints of a sore throat, congestion and coughing in May 1998. She was noted to smoke one to two packs of cigarettes per day. The clinical impression was acute bronchitis and acute clinical sinusitis. The appellant was admitted to a VA hospital in June 2001. From there she went to a VA domiciliary and was discharged in February 2002. In January 2002, she was treated for an upper respiratory tract infection and acute maxillary sinusitis. The discharge summary does not include a diagnosis of any respiratory disorder. The appellant was afforded a VA general medical examination in March 2002. On physical examination, her nose was patent. Her mucosa were normal. Her oral mucosa were without lesions. The appellant was admitted to a VA hospital in May 2002. From there she went to a VA domiciliary and she was discharged in July 2002. In June 2002, she was treated for acute bronchitis. The discharge summary does not include a diagnosis of any respiratory disorder. In May 2005, she was diagnosed at a VA facility as having bronchitis. A March 2006 private hospital consultation report states that the appellant had no prior history of asthma, bronchitis, emphysema or pneumonia. She was noted to have smoked a half-a-pack of cigarettes per day for 20 to 30 years. The appellant underwent a physical examination in conjunction with her claim for SSA disability benefits in October 2006. The examiner noted that the appellant had diagnoses by history of allergic rhinitis and chronic bronchitis. Notes from a private oral surgery office, dated in February 2008, indicate that the appellant had chronic bronchitis but no history of asthma or emphysema. The appellant was diagnosed with bronchitis at a VA facility in April 2013. A December 2014 VA chest x-ray report described the appellant as having chronic obstructive pulmonary disease (COPD) and asthma. A May 2016 VA note states that the appellant had COPD and a tobacco use disorder. The appellant was afforded VA medical examinations in November 2016; the examining physician reviewed the appellant's electronic file and medical records. The appellant reported that she had started smoking in her twenties and that she was still smoking. She said that she developed bronchitis and sinusitis in service in 1990 and that she currently would have one to two episodes of bronchitis per year, as well as one to two episodes of sinusitis per year. The examiner rendered diagnoses of acute recurrent bronchitis and acute recurrent sinusitis. The examiner noted that the appellant had underlying COPD. In January 2017, the VA examining physician opined that the appellant's acute recurrent bronchitis and acute recurrent sinusitis were less likely than not caused by, or related to, her active military duty. The examiner stated that this conclusion was supported by the treatment in service for self-limited episodes that were not indicative of a chronic condition followed by a negative separation examination in April 1992. The examiner also noted that the radiology reports (CT scans) of March 2006, March 2008, and August 2013 showed that the appellant had clear sinuses. In addition, the sinus x-ray of November 2012 was negative for any sinus disease. In a September 2017 addendum opinion, the VA examining physician opined that the appellant's COPD and asthma were less likely than not caused by, or related to, her active military duty. The examiner stated that there is extensive medical literature supporting the direct causal etiological association of tobacco use and the subsequent development of COPD and asthma. The examiner also stated that the appellant's acute recurrent bronchitis and acute recurrent sinusitis were not initial manifestations of COPD or asthma. 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. Neither is asthma, bronchitis or sinusitis. 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 or her active military service. Neither the appellant nor her representative has submitted a medical opinion specifically linking the Veteran's asthma or her COPD or her acute recurrent bronchitis or her acute recurrent sinusitis or any other disorder of the lungs/respiratory system to any incident of service. None of the SSA records, VA medical treatment records or private medical treatment records in evidence shows any connection between the claimed conditions and any incident of service, other than the appellant's in-service cigarette smoking. On the other hand, the January 2017 and September 2017 VA medical examiner opinions state that the appellant's respiratory/lung pathology is not etiologically related to any incident of active service other than her in-service cigarette smoking. 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 respiratory/lung pathology. 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, supra. 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, respiratory conditions such as asthma, COPD, acute recurrent bronchitis and acute recurrent sinusitis are not the type of disorders as to which a lay person can provide competent evidence on questions of etiology or diagnosis, especially since laboratory and radiologic findings are necessary for a diagnosis of asthma, COPD, acute recurrent bronchitis and acute recurrent sinusitis; such testing requires specialized equipment and training and is therefore not susceptible to lay opinions. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Thus, while the appellant is competent to say that she had colds, congestion and/or coughing in service, the Veteran does not have the expertise to state that there is a relationship between those symptoms and any current lung or respiratory disorder; a medical opinion would be required. See Davidson, supra. Therefore, the Board cannot give decisive probative weight to the opinions of the Veteran or her representative about the origins of any current lung/respiratory pathology because they are not qualified to offer such opinions. VA and private treatment records reflect the existence of diagnoses of asthma, COPD, acute recurrent bronchitis and acute recurrent sinusitis. However, the medical evidence of record does not show that the appellant had a chronic respiratory or lung disorder in service or that any current respiratory or lung disorder is related to her active military service other than as due to the appellant's in-service cigarette smoking. The appellant has reported that she has had chronic respiratory disorders since 1990 when she was in service. No private or VA medical providers have indicated that any of the appellant's current respiratory or lung disorders began in active service. Moreover, asthma, COPD, acute recurrent bronchitis and acute recurrent sinusitis are not chronic conditions 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 asthma, COPD, acute recurrent bronchitis and/or acute recurrent sinusitis and service in this case. 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 posttraumatic stress disorder, for hives and for headaches. However, there is no indication in the evidence of record that there is any etiological association between any one of these three disabilities and the appellant's lung or respiratory pathology. Furthermore, neither the appellant nor her representative has contended that service connection for the Veteran's various respiratory disorders is warranted under the theory of secondary service connection. Service medical treatment records state that the appellant was smoking cigarettes during her active military service. Private and VA post-service medical treatment records state that the appellant smoked cigarettes after service and that she continues to smoke cigarettes. The September 2017 VA examiner addendum opinion states that there is a direct causal and etiological relationship between COPD and asthma and cigarette 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 asthma or COPD because they are etiologically associated with cigarette smoking. The Board has scrutinized the record with a view towards ascertaining whether there is any basis to indicate that the claimed respiratory disorders were incurred by any incident of military service other than the appellant's in-service cigarette smoking, 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 a respiratory or lung disorder, to include asthma, COPD, acute recurrent bronchitis and acute recurrent sinusitis. 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 respiratory disorder, including asthma, COPD, acute recurrent bronchitis and acute recurrent sinusitis, must be denied. ORDER Entitlement to service connection for a respiratory disorder, including asthma, chronic obstructive pulmonary disease, bronchitis and sinusitis, is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs