Citation Nr: 0004973 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-13 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD D. Odlum, Associate Counsel INTRODUCTION The veteran had active military service from July 1964 to December 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 1998 rating decision from the North Little Rock, Arkansas Department of Veterans Affairs (VA) Regional Office (RO). The RO in pertinent part denied entitlement to service connection for COPD. The Board notes that additional evidence has been submitted to the Board, some of which was not first considered by the agency of original jurisdiction; however, the veteran submitted a statement with this evidence waiving RO consideration of such evidence. 38 C.F.R. § 20.1304(c) (1999). FINDING OF FACT The claim of entitlement to service connection for COPD is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to service connection for COPD is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Review of the service medical records shows documentation of a complaint of shortness of breath during the enlistment examination; however, the lungs and chest were described as normal on examination. In July 1964 the veteran was examined for feeling chills then feeling hot. The examination was essentially negative, and the chest was found to be clear. In August 1964 he was treated for an upper respiratory infection. In November 1964 he was seen for complaints regarding his tonsils and also for chest congestion. In August 1965 the veteran was treated for an upper respiratory infection, and in October 1965 he was treated for mild sinusitis. In December 1965 he was treated for pharyngitis. In June 1966 the veteran was seen for nausea, headache, backache, and a sore throat. In November 1966 he was seen for a cough with yellow sputum. The diagnosis was an upper respiratory infection. He was seen for a sore throat in September 1966 and was diagnosed with pharyngitis. In February 1967 he was seen for general malaise and was diagnosed with flu-like symptoms. Separation exam noted the lungs and chest as being normal. Post-service medical records from the Fayetteville VA Medical Center (VAMC) show an October 1991 pathology report involving examination of sputum smears. The smears revealed scattered dust cells with rare collections of slightly atypical hyperchromatic squamous epithelial cells. It was concluded that these were focal atypical degenerative changes, not diagnostic of a malignancy. In March 1992 he was seen for chronic fatigue, and the diagnosis was COPD. In May 1992 it was noted that a spirometry revealed severe COPD. Progress notes through March 1994 show treatment of COPD. During a November 1996 VA post-traumatic stress disorder (PTSD) examination, the veteran reported having problems with emphysema. He was not specifically examined for emphysema. Medical records from the Lake Harrison Clinic from October 1996 to February 1998 show some treatment of respiratory problems. He underwent respiratory testing in October 1996 which was interpreted as revealing severe emphysema and a severe obstruction. It was noted that he had been smoking one pack per day since the age of 10. He reported breathing problems in June 1997 and it was noted that he had severe COPD. In August 1998 the veteran indicated that a VA doctor had told him that PTSD causes breathing problems. In October 1999 a hearing before a travel Member of the Board was conducted. The veteran testified that he first started suffering from symptoms of COPD while he was in the military. Transcript, p. 4. When asked about his reference to breathing problems on his enlistment examination, the veteran indicated that he did not have shortness of breath or respiratory problems prior to entering the service. Tr., p. 14. The veteran indicated that his COPD-related problems began when he saw a plane fly overhead spraying defoliants, or Agent Orange, making his throat raw. He also contended that his contraction of malaria while in the service also contributed to his breathing problems. Tr., pp. 6-7. The veteran later further referred to two documents which he stated directly related malaria and pulmonary dysfunctions and another that related COPD to anxiety. The two documents were referred to at the hearing as being two treatises off the Internet, one dealing with COPD, and the other with malaria. Tr., pp. 13-14. The veteran further stated that his shortness of breath would increase when his anxiety increased. Tr., p. 13. He later specifically contended that his bouts with malaria in Vietnam and Japan contributed greatly to his respiratory disorder. Tr., p. 17. The document referred to at the hearing as linking COPD to anxiety are a series of email communications between people of unspecified credentials discussing COPD-related anxiety. Two of the messages appear to discuss the effects of certain medications on the respiratory system. Another message discussed the prevalence of anxiety disorders among patients with respiratory disease, especially COPD. The other document appears to be a treatise discussing malarial parasites. It also discussed "P.falciparum," apparently in various stages and from various viewpoints. At the end of the printed document in the file is a message indicating that the document is continued on a floppy disk. The veteran indicated at the hearing that he had been unable to print the entire document. Tr., p. 14. The printed portion of treatise does not discuss malaria in terms of COPD or any other respiratory disorder. The unprinted portion, stored on disk, appears to indicate that P.falciparum can result in pulmonary, non-specific complications such as atypical pneumonia, lobar pneumonia, or bronchopneumonia during malaria infections. It also noted that a syndrome resembling Acute Respiratory Distress Syndrome has a relative late onset in the course of the malaria infection. Criteria Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. The United States Court of Appeals for Veterans Claims (Court) has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir. 1996). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may 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) (1999). The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (1999). Generally, a preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service. Unless there is a specific finding that the increase in disability is due to the natural progress of the disease; however, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1999). In order to establish aggravation of a preexisting injury or disease, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which are to be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1999). Continuous service for 90 days or more during a period of war, and post-service development of a presumptive disease to a degree of 10 percent within one year from the date of termination of such service, establishes a presumption that the disease was incurred in service. 38 C.F.R. §§ 3.307, 3.309 (1999). In addition to law and regulations regarding service connection, the Board notes that a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) (1999) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during such period of service. 38 C.F.R. § 3.307(a) (1999). If a veteran was exposed to a herbicide agent during such active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneiform disease consistent with chloracne; Hodgkin's disease; non- Hodgkin's lymphoma; acute and subacute peripheral neuropathy; Porphyria cutanea tarda; Prostate cancer; Multiple myeloma; Respiratory cancers (cancers of the lung, bronchus, larynx or trachea); or Soft tissue sarcoma. 38 C.F.R. § 3.309(e) (1999). These diseases shall become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other disease consistent with chloracne, and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). The Secretary has also determined that there was no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. 59 Fed. Reg. 57589 (1996) (codified at 38 C.F.R. §§ 3.307, 3.309). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). This rule does not mean that any manifestation in service will permit service connection. To show 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for disability, which is proximately due to, or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). When there is aggravation of a nonservice-connected condition, which is proximately due to, or the result of service-connected disease or injury, the veteran will be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis The Board notes at the outset that the veteran raised theories of service connection of his COPD for the first time at the October 1999 hearing before a travel Member of the Board. He contended that in-service Agent Orange exposure and malaria (for which he is service connected) contributed to his respiratory disorder. See Tr., pp. 13, 17. As these contentions were made for the first time at the October 1999 hearing, the RO did not specifically have the opportunity to address these contentions. Nevertheless, the Board concludes that it has jurisdiction to address these contentions. The record indicates that the veteran was previously given notice in June 1994 of the requirements pertaining to presumptive service connection for a disease associated with Agent Orange exposure. They notified him that presumption of service connection could be granted for diseases associated with herbicide exposure and proceeded to list the diseases which had been found to have a positive association with exposure to herbicides. Regarding his other contention, the record shows that it was made in conjunction with his submission of evidence which he indicated to support an association between malaria and COPD. The record shows that the veteran waived consideration of this evidence by the agency of original jurisdiction. Finally, the Board is of the opinion that the various theories of entitlement submitted by the veteran do not amount to new claims that should be adjudicated separately. Rather they are arguments that are part and parcel of the same claim, namely, entitlement to service connection for COPD. See Ashford v. Brown, 10 Vet. App. 120, 123. With this in mind, the Board initially finds that presumptive service connection is not warranted for COPD under sections 3.309(a) for chronic diseases nor 3.309(e) for diseases associated with herbicide exposure, as COPD is not one of the presumptive diseases listed in either of these sections. 38 C.F.R. §§ 3.307, 3.309(a), (e) (1999). Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the veteran to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claim of entitlement to service connection for COPD must be denied as not well grounded. The Board reiterates the three requirements for a well grounded claim: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and, (3) medical evidence of a nexus between the claimed inservice injury or disease and a current disability. See Caluza, supra. The record shows that the veteran was treated for upper respiratory infections in service. They do not document a diagnosis of COPD. The record shows that the veteran has a current disability of COPD. However, the veteran has failed to provide medical evidence of a nexus between his current COPD and an in-service disease or injury. There are no documented medical opinions or other competent evidence of record linking the veteran's current COPD disability to his military service. Id. In addition, there is no evidence that the veteran was diagnosed with any chronic disease in service or during an applicable presumption period. The veteran and his representative have indicated that the veteran has had continuous symptoms of his respiratory disability since service. However, there is no competent evidence, such as a medical opinion, in the record of a relationship or link between the veteran's current COPD and his alleged continuity of symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); McManaway v. West, 13 Vet. App. 60 (1999); Savage v. Gober, 10 Vet. App. 488 (1997). The document containing email discussions pertaining to anxiety and COPD is generally not relevant to the issue of a COPD as being secondary to or aggravated by anxiety. The only statement that appears to have some possible relevance merely relates the prevalence of anxiety disorders among patients with COPD. It does not indicate which disorder is secondary to which. Therefore, it is too general and inconclusive. More significantly, this document is not a medical treatise, but a series of email communications from people whose credentials (i.e. competence) are unknown. See Wallin v. West, 11 Vet. App. 509, 513 (1998); Sacks v. West, 11 Vet. App. 314, 317 (1998). The treatise concerning malarial parasites and various manifestations of P.falciparum discusses (on the portion of the treatise stored on disk) pulmonary and respiratory complications that can occur during "falciparum malaria." It does not discuss a relationship between COPD and malaria, nor does it discuss the development of respiratory disorders after a malaria infection; it only appears to discuss respiratory complications arising during the actual malaria infection. Therefore, this document does not even provide a general link between COPD and malaria. See Wallin, supra. The veteran's representative also contended in October 1999 that the veteran had a pre-existing condition of "short breath" that was aggravated by his in-service respiratory problems. The Board notes that the veteran reported a history of shortness of breath on enlistment examination. No diagnosis of a pre-existing respiratory disorder was documented. Furthermore, the veteran himself testified that he did not have shortness of breath or any respiratory problems before service. Tr., p. 14. Regardless, there is no competent evidence of record linking the veteran's current COPD to any alleged aggravation in service. The veteran's own opinions and statements will not suffice to well-ground his claim. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion, which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Neither is the Board competent to supplement the record with its own unsubstantiated medical conclusions as to whether the veteran's COPD is related to a disease or injury incurred during service. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board further finds that the RO has advised the veteran of the evidence necessary to establish a well grounded claim, and the veteran has not indicated the existence of any evidence that has not already been obtained that would well ground his claim. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). In this regard, the veteran reported in August 1998 that a VA doctor had told him that PTSD causes breathing problems. He did not indicate that the doctor linked his COPD to PTSD or to service. Furthermore, the record shows that the only VA facility that the veteran has referred to being treated at is the VAMC in Fayetteville. The record indicates that the RO has obtained VA treatment records from the Fayetteville VAMC, and there is no documentation in these records, including in the VA examinations, of a physician indicating that the veteran's COPD is secondary to or has been aggravated by his PTSD. In addition, the veteran did not identify the name of the doctor who provided this opinion, nor the date or approximate date of when it was rendered. In light of the above, the Board finds that the veteran's claim of entitlement to service connection for COPD must be denied as not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Board views its foregoing discussion as sufficient to inform the veteran of the elements necessary to complete his application to reopen this claim. See Graves v. Brown, 8 Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). As the veteran's claim for service connection of COPD is not well grounded, the doctrine of reasonable doubt has no application to his claim. ORDER The veteran, not having submitted a well grounded claim of entitlement to service connection for COPD, the appeal is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals