Citation Nr: 21031135 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-24 310 DATE: May 20, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's chronic obstructive pulmonary disease (COPD) began during active service, or is otherwise related to an in-service injury or disease, to include in-service herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic obstructive pulmonary disease (COPD) have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to December 1969, to include service in Vietnam (from May 1968 to May 1969). As addressed in the previous Board remand, on January 28, 2019, the Veteran elected to participate in VA's Rapid Appeals Modernization Program (RAMP) for the present matter. The appeal had been activated at the Board on January 24, 2019, however, and was no longer eligible for RAMP processing. Accordingly, the appeal remains in the legacy system. Previously, the Board remanded for requesting the Veteran to submit a completed VA form 21-4142 for his treatment records from his private physician (Dr. Friedrich). To the extent that the RO provided the Veteran with VA form 21-4142to which the Veteran failed to respondthe Board finds that there has been substantial compliance with the Board remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board acknowledges a March 2021 Appellate Brief, requesting that the Veteran be afforded another opportunity to submit a completed VA form 21-4142. However, the Board will not order that this development be attempted at this time. He had notice of the importance of these records via the Board's remand, and the RO properly complied with the duty to assist by asking him to complete the necessary authorization form. To the extent the record is incomplete, that is due to the Veteran's failure to cooperate. The representative argues that because the remand asked that two requests be made, the RO did not comply. The representative misconstrues the Board's instructions. The duty to assist requires that two requests be made for private records unless it is futile to make a second request. That applies to the actual request for records to the private doctor not the request for the Veteran to complete the authorization form in the first place. The Veteran's representative also alleged that direct service connection was not considered in the first place. However, as the Board adjudicates the claim on a de novo basis and has herein addressed the theory of direct service connection, among other bases for service connection. There is no requirement that the case be remanded for the RO to address this theory, to the extent the prior adjudication was incomplete in any way (which, the Board does not find, but is simply acknowledging the representative's arguments). Neither the Veteran nor his representative has raised any issues 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). Thus, the Board need not discuss any potential issues in this regard. 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 favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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 or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, a presumption of service connection arises if the disease is manifested to compensable degree within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The Veteran claims that his COPD is related to his service, to include his in-service exposure to Agent Orange while serving in Vietnam. During the Board hearing testimony, he testified that he smoked from 1967 to 1980, and that he was first diagnosed with COPD by his private physician, Dr. Friedrich. Although answered affirmative when asked whether he had any breathing problems in service, the Veteran seemed to relate such symptoms to instances of him being traumatized in service (see Board hearing testimony, "because when you're traumatized, your breathing anyway is nervous breathing. And as far as that, though, I could breath, but as I got older, now it's really bad"). There is no dispute that the Veteran has a current disability, as he has been diagnosed with COPD. The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis relating to a respiratory condition. While there is a hospital discharge summary from March 1968 (admitted for alcohol abuse, not related to any respiratory conditions), it shows normal lungs and normal chest x-ray. His December 1969 separation examination documents clinically normal respiratory condition. During that examination, he answered "yes" to unrelated chronic colds, but denied having shortness of breath, chronic cough, chest pressure, or asthma. When he established care with VA in 2002, the Veteran reported a past medical history of COPD. Although the Board acknowledges the Veteran's testimony that he was first diagnosed with COPD by his private family doctor, Dr. F, he never specified when (what year) that was. More importantly, while the Veteran was requested to submit a completed VA 21-4142 form for obtaining treatment records from Dr. F, the Veteran failed to respond. It is also unclear how soon after separating from service the Veteran began seeking treatment for his respiratory condition from Dr. F. There are VA and private medical records dated from 1986 to 1990 in the file, and they show no respiratory complaints or a report from the Veteran that he had COPD or any other chronic respiratory condition. For example, when hospitalized at a private facility in 1990, he provided his past medical history, mentioned the fact he was a smoker, but did not raise any respiratory complaints or history of a diagnosis, despite mentioning such minor past ailments as hemorrhoids. An extensive physical assessment done at VA for a 1990 hospitalization showed denial of all respiratory complaints. Thus, these records weigh heavily against any suggestion COPD was diagnosed at any time prior to 1990, as it is reasonable to expect the Veteran would have reported such. Thus, there is no pertinent evidence suggesting that his COPD manifested within the presumptive period. Furthermore, there is no persuasive evidence showing that he has experienced continuous respiratory symptoms since separating from service, considering the denials of such in the 1990 records. In fact, the Veteran has not explicitly claimed such and was very vague at his Board hearing when asked about respiratory symptoms during and since service. The Board notes that veterans who served in Vietnam during the Vietnam Era are presumed to have been exposed to herbicides in service. Certain enumerated diseases may be service connected on a presumptive basis as due to exposure to herbicides in service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). A review of his personnel records reflects that the Veteran served in the Republic of Vietnam from May 1968 to May 1969. As such, in-service exposure to herbicides or Agent Orange is conceded. However, COPD is not among the diseases listed in § 3.309 for which presumptive service connection is available based on in-service herbicide exposure. Notwithstanding the foregoing, the Federal Circuit has determined that a veteran may also establish service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, the remaining issue is whether the Veteran's current COPD is related to military service, to include his in-service exposure to herbicides. There is no positive medical nexus opinion provided for this condition. As noted above, his treatment records from 2002 (when he established care with VA) show a history of COPD. However, the medical evidence suggests this condition is due to his smoking history. See September 2002 VA treatment records (diagnosed with stable COPD, and was noted to have history of smoking 2.5 packs per day for the past 25 years, which he quit 15 years ago); April 2007 VA treatment records (with regards to shortness of breath, medical provider indicating that he has a distant remote history of COPD with smoking, as he did smoke 2.5 packs/day for years, and noting that he quit smoking in 1988; diagnosing with "shortness of breath and possibly COPD/asthma"). There is no competent evidence indicative of a possible etiology between his in-service herbicide exposure and his current COPD. Considering that the preponderance of the evidence suggests that his COPD is likely due to factors unrelated to his military service, the Board finds that he is not warranted service connection even under the theory of direct service connection. As there is no suggestion in the medical evidence of a possible relationship to service, there is no duty to seek further medical opinion. The Board acknowledges that the Veteran believes his COPD is related to his herbicide exposure in service. While he is competent to report any symptoms, he is not competent to provide a medical opinion linking his respiratory condition with service as such requires complex medical knowledge and training that are generally beyond the competency of a lay witness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In summary, the Board concludes that the evidence preponderates against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). As the preponderance of the evidence is against the claim of service connection for COPD, the benefit-of-the-doubt doctrine does not apply, and his claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lee The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.