Citation Nr: 1221562	
Decision Date: 06/20/12    Archive Date: 06/29/12

DOCKET NO. 09-31 750	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for a chronic lung condition, to include asbestosis, chronic bronchitis, and chronic obstructive pulmonary disease (COPD). 


REPRESENTATION

Appellant represented by:	Heather Vanhoose, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran, his daughter, and his son in law


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel


INTRODUCTION

The Veteran had active service from September 1955 to February 1956.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the Veteran's petition to reopen a claim for service connection for a lung condition. In a March 2011 decision, the Board reopened his claim and remanded it for further development. 

A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from March 2011 to December 2011. In the December 2011 supplemental statement of the case (SSOC), the RO specifically stated that this evidence was reviewed prior to its issuance. Further, none of this evidence is relevant to the Veteran's appeal. 

The Veteran testified at a hearing in November 2010 before the undersigned. A copy of the transcript has been associated with the claims file. At the hearing, he submitted additional evidence and waived his right to have it initially considered by the RO. 38 C.F.R. §§ 20.800, 20.1304(c) (2011).

In March 2012, the Veteran's Congressional representative submitted additional evidence without a waiver. However, it was duplicative of evidence already in the Veteran's claims file. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. The Veteran has not been diagnosed with asbestosis. 

2. The medical evidence of record does not show that the Veteran's currently diagnosed chronic bronchitis and COPD are related to military service.


CONCLUSION OF LAW

The Veteran's chronic bronchitis and COPD were not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.300, 3.303 (2011). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

However, if VCAA notice was not provided prior to the initial adjudication of the claim or, if provided, was inadequate or incomplete, such an error can be "cured" by providing any necessary notice and then readjudicating the claim, including in a Statement of the Case (SOC) or SSOC, such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. __ (2009).

VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in March 2008. This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. A follow up letter was issued in March 2011 that specifically addressed claims based upon exposure to asbestos. Both letters provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. His claim was then readjudicated in the December 2011 SSOC. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), service personnel records, reports of post-service medical treatment, records from the Social Security Administration, and the transcripts of his VA and RO hearings, including his November 2010 hearing before the undersigned. 

The RO provided the Veteran a VA examination in October 2011. The examination was adequate because it is based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiner also provided a rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

This case was remanded in March 2011 so that additional medical records and his personnel file could be obtained, proper VCAA notice could be issued, and he could undergo a VA examination. These actions were completed prior to the case being returned to the Board. There was substantial compliance with the March 2011 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2011). 

Service Connection 

The Veteran contends that he was exposed to asbestos in service and has asbestosis. Because a preponderance of the evidence weighs against these assertions, the claim will be denied on that basis. Alternatively, he contends that his diagnosed COPD and chronic bronchitis are the result of his in-service bronchial pneumonia. Because competent medical evidence indicates that his lung conditions are caused by smoking, his claim will be denied on that basis as well. See Holbrook v. Brown, 8 Vet. App. 91 (1995). 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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).

In order to establish service connection for the claimed disorder, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).  

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Board will address both of the Veteran's theories of entitlement. 

Asbestos Exposure

In cases where it is claimed that asbestos exposure during service caused a current disability, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993); Ashford v. Brown, 10 Vet. App. 120, 124-25 (1997). The Board notes that the pertinent portions of the VA Adjudication Procedure Manual (M21-1MR) do not constitute a presumption of asbestos exposure; rather, it provides a guideline for adjudication. See VAOPGCPREC 04-2000 (April 13, 2000). 

VA must address two sequential questions. First, it must determine whether service records demonstrate asbestos exposure during active duty. If so, the second question involves whether there is a relationship between that exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (December 13, 2005). 

With regard to the initial determination, the M21-1MR defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. Common materials that may contain asbestos include steam pipes for heating units and boilers; ceiling tiles; roofing shingles; wallboard; fire-proofing materials; and thermal insulation. Due to concerns about the safety of asbestos, the use of materials containing asbestos has declined in the United States since the 1970s. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(a). 

Some of the major occupations involving asbestos exposure include mining; milling; work in shipyards; insulation work; demolition of old buildings; carpentry and construction; manufacture and servicing of friction products, such as clutch facings and brake linings; and manufacture and installation of products, such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(f). 

If it is determined that a Veteran was exposed to asbestos during service, the next determination is whether there is a relationship between that exposure and the claimed disease. Inhalation of asbestos fibers can produce fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis; tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of pleura and peritoneum; and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, except the prostate. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(b). 

Specific effects of exposure to asbestos include lung cancer that originates in the lung parenchyma rather than the bronchi, and eventually develops in about 50 percent of persons with asbestosis; gastrointestinal cancer that develops in 10 percent of persons with asbestosis; urogenital cancer that develops in 10 percent of persons with asbestosis; and mesothelioma that develops in 17 percent of persons with asbestosis. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(c). Disease-causing exposure to asbestos may be brief, and/or indirect. Id. Current smokers who have been exposed to asbestos exposure face an increased risk of developing bronchial cancer. The latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(d). 

A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion end-respiratory rales over the lower lobes; compensatory emphysema; clubbing of the fingers at late stages; and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(e). 

In the present case, the Board finds that the weight of the more probative evidence of record is against the Veteran's claim that he has asbestosis as a result of exposure to asbestos during service. 

First, the evidence establishes that it is less likely than not that the Veteran was exposed to asbestos during service. He contends that he was exposed to asbestos in the insulation of his barracks, and when his duty required him to assist in demolishing a barracks. At his November 2010 hearing, he testified that he was exposed to asbestos from being near a water heater. The Board need not accept a non-combat veteran's lay statements asserting that an event (as opposed to medical symptoms) actually occurred, even though there is no "affirmative documentary evidence provid[ing] otherwise." Rather, all the evidence of record, including the absence of documentation in the military records, must be weighed in determining whether an event actually occurred. Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010); compare Buchanan v. Nicholson, 451 F.3d 1331   (Fed. Cir. 2006) (finding that it was impermissible for the Board to find a veteran's lay statements regarding his medical symptoms not credible merely because there was no "confirmatory medical evidence"). 

With this in mind, the Board finds that the Veteran's official service department records, including a DD Form 214 are not consistent with his assertion that he was exposed to asbestos. His most significant duty assignment was to the U. S. Naval Training Center where he attended basic training, which is not consistent with asbestos exposure. His service personnel records indicate that he was classified as a Recruit until he was hospitalized with pneumonia, and he was subsequently discharged from service for performance issues. The circumstances of his service are not consistent with asbestos exposure. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(f). 

Further, competent, probative medical evidence shows that Veteran has not been diagnosed with asbestosis. He has chronic bronchitis and COPD. Therefore, it is not relevant whether he was exposed to asbestos. There is no diagnosis of interstitial pulmonary fibrosis; asbestosis; tumors; pleural effusions; pleural plaques; mesotheliomas of pleura and peritoneum; or any cancer. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(b). Rather, private and VA findings were consistent with chronic bronchitis and COPD with one exception. In December 2008, Dr. R. B., a private physician, diagnosed the Veteran with asbestosis based upon his assertion that he was exposed to asbestos in service. There is no evidence that Dr. R. B. conducted any clinical tests while formulating his diagnosis. Further, the remainder of the Veteran's VA and private treatment records do not reflect a diagnosis of asbestosis. Instead, they show treatment for COPD and chronic bronchitis. Lastly, in October 2011, a VA examiner concluded that there is no evidence of record to show that the Veteran has asbestosis. The entirety of the Veteran's post-service treatment records which provide diagnoses of COPD and chronic bronchitis, combined with the October 2011 VA examiner's opinion outweighs Dr. R. B.'s unsupported diagnosis of asbestosis. 

The Veteran has offered his own opinion indicating that he has a current disorder due to asbestos exposure. As indicated, however, there is no credible and competent evidence of asbestos exposure during service. Moreover, the question of whether a current disorder may be related to asbestos exposure involves a medical issue involving an internal physical process, which extends beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence. See Davidson, 581 F.3d at 1316; Jandreau , 492 F.3d at 1376-77. 

For these reasons, the Board finds that the preponderance of the most probative evidence of record weighs against the claim of service connection for asbestosis based upon exposure to asbestos in service. 

Chronic Bronchitis

The Veteran has been diagnosed with COPD and chronic bronchitis, satisfying the first element of a service connection claim. Hickson, 12 Vet. App. at 253. His STRs confirm that in December 1955 he was treated for an upper respiratory infection. Scattered, moist inspiratory rales were heard over both lung bases. An x-ray showed a large patch of pneumonitis at the right cardiophrenic angle and another infiltration at the base of the left lung field. The treating physician noted that these findings were consistent with viral pneumonia. The Veteran was hospitalized for treatment. He was discharged from the hospital in January 1955 because his cough was "satisfactory" and follow up x-rays showed "very minimal parenchymal interstitial infiltration to the right cardiophrenic angle." Auscultation of the chest revealed no rales. His separation examination noted normal lungs. The Veteran's in-service episode of pneumonia satisfies the second element of a service connection claim. Hickson, 12 Vet. App. at 253. 

The Veteran asserts that he has had bronchitis five to six times per year since December 1955, when he had bronchopneumonia in service. He is competent to relate his medical history. Layno v. Brown, 6 Vet. App. 465 (1994). His post service medical records support his assertion of continuity of symptomatology. In March 1985, January 1987, and June 1994, Dr. G. M., a private physician, informed VA that he treated the Veteran for chest infections during 1956 and through the late 1960s. Dr. G. M. had retired by the time he wrote to VA, and could not provide the Veteran's medical records. Subsequent VA and private treatment records consistently show treatment for bronchitis and COPD. The Board finds that the Veteran's assertion of continuity of symptomatology is credible. 38 C.F.R. 
§ 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Although the Veteran's assertion of continuity of symptomatology is credible, the competent medical evidence of record attributes his lung conditions to tobacco abuse rather than his bout of pneumonia in December 1955.

There are several medical statements regarding the etiology of the Veteran's chronic bronchitis. 

In February 1989, Dr. J. P., a general practitioner, wrote to VA to assist the Veteran's wife "unofficially" with his claim. He did not interview or examine the Veteran, but instead reviewed a package of unspecified information supplied by the Veteran's wife. Dr. J. P. stated that he was not a lung expert but provided an opinion that, "...it seems that the recurrent infections did start [in service], I am unable, by review of the package sent me, to establish a causal relationship. It seems that his current breathing problems and infections are related to his current chronic obstructive pulmonary disease (COPD). Where it is possible that 'Atypical Pneumonia' or Mycoplasma Pneumonia can result in the long run in COPD, [the Veteran] has a much more likely cause for COPD, namely his smoking history which is documented in his medical record." He stated that the terramycin used to treat the Veteran's pneumonia in service would have properly treated mycoplasma as well as pneumococcal pneumonia. He concluded that, "...I am unable to determine from the package provided a connection between the current acute and chronic respiratory infections and the incident in Dec[emeber] [19]55." Dr. J. P.'s opinion is entitled to some probative weight against the Veteran's claim. However, because he did not interview or examine the Veteran and it is unknown which records were provided to him, his opinion is not as probative as those of other physicians. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.") 

In September 1989, Dr. G. D., a private physician, was asked to render an opinion as to the etiology of the Veteran's lung condition. He was provided unspecified records by the Veteran's former attorney. Dr. G. D. concluded that the Veteran had pneumonia in service, and that he had recurrent respiratory infections since that time. He noted that there was "objective evidence" of residual effects from pneumonia in the form of persistent x-ray changes in both lungs. Dr. G. D. opined that the Veteran's "current respiratory problems are due in large part from the pneumonia that he had in 1955." He concluded that the Veteran was left with segmental bronchiectasis, which is "a condition where one can have continued and recurrent respiratory problems." This opinion is entitled to some weight in favor of the Veteran's claim. However, Dr. G. D. did not interview or examine the Veteran and it is unknown which records he reviewed; his opinion is not as probative as those of other physicians. Id. 

In June 1994, Dr. G. M., the private physician who treated the Veteran immediately following service through the late 1960s stated that although he retired many years ago, he remembered the Veteran "as a patient and this infection had developed and had been a recurring thing from the week of his discharge from service." Dr. G. M.'s statement simply corroborates what has been established above: that the Veteran experienced respiratory problems after service. However, Dr. G. M. did not provide an opinion as to the cause of the Veteran's recurrent infections and therefore his statement is not probative evidence in favor of or against the Veteran's claim. 

In December 2008, Dr. R. B., a private physician, reviewed the Veteran's claims file and examined him. Dr. R. B. stated that the Veteran was unable to complete basic training because of an acute or chronic illness that prevented his ability to train. Dr. R. B. stated that the Veteran had bronchopneumonia in service, and that the condition continued to progress "and ultimately led to the patient[']s early termination of active duty service." This is an incorrect factual basis, as the Veteran's service personnel records clearly document that he was discharged from service due to poor performance based upon literacy test results and an inability to improve while serving in the Recruit Preparatory Training Unit. Dr. R. B. opined that the Veteran had been exposed to asbestos in service and that chronic bronchitis was more likely than not the result of his period of military service. No rationale was provided. As noted above, the Board has found that the preponderance of the evidence is against a finding that he was exposed to asbestos in service. Further, Dr. R. B.'s opinion is not probative for two reasons. First, it is partially premised on an incorrect factual basis, as he believed that the Veteran was discharged from service due to bronchopneumonia. Swann v. Brown, 5 Vet. App. 229, 233 (1993) (Board may reject medical opinion based on appellant's statement that is contradicted by other facts in record); Black v. Brown, 5 Vet. App. 177 (1993) (Board is not bound to accept medical opinions based on history supplied by veteran, where history is unsupported or based on inaccurate factual premises). Second, Dr. R. B. did not provide a rationale for his opinion, which renders it inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 

In November 1999, in response to a request for an expert VA opinion, a VA physician opined that, "it is more likely that the patient's chronic cough is due to his long smoking history and not a solitary case of viral pneumonia." The physician stated that the Veteran had viral pneumonia in service, but nine days following his discharge from the hospital, his chest x-ray and examination were normal. However, he had a 45 year history of smoking. The physician did not examine or interview the Veteran, but he reviewed his medical records. His opinion is entitled to some probative weight against the Veteran's claim. However, as with the opinions of Drs. J. P. and G. D., the probative weight is reduced because he did not examine the Veteran in person. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). 

Lastly, the Veteran underwent a VA examination in October 2011. After reviewing the claims file, examining the Veteran, and conducting appropriate diagnostic tests such as a pulmonary function test, the examiner diagnosed the Veteran with COPD and chronic bronchitis which were not related to service. He reasoned that the Veteran's in-service bronchopneumonia was considered to be viral and that it was completely resolved by the time the Veteran was discharged from service. He noted that the Veteran was a "heavy smoker" with intermittent periods of abstinence and that the smoking caused COPD and chronic recurrent bronchitis. Because the VA examiner reviewed the Veteran's claims file, examined the Veteran in person, and rendered an opinion accompanied by a rationale, his opinion is afforded significant probative weight against the Veteran's claim. Nieves-Rodriguez, 22 Vet. App. at 304; Barr, 21 Vet. App. at 311; Stefl, 21 Vet. App. at 124. 

The Board finds that the opinion of the October 2011 examiner combined with the less probative opinions of the January 1999 VA examiner and Dr. J. P. outweighs the less probative opinions of Dr. G. D, who did not examine the Veteran in person and Dr. G. B., whose opinion was unsupported by a rationale and partially based on an incorrect factual basis. The competent medical evidence of record supports a finding that the Veteran's chronic bronchitis was not caused by his incidence of viral bronchopneumonia in December 1955. Further, his post-service treatment records show that he has smoked approximately one half to one pack of cigarettes a day for at least 45 years, with small periods of abstention. To the extent that the evidence of record indicates that the Veteran's currently diagnosed chronic bronchitis is related to tobacco use, the law provides that for claims filed after June 9, 1998, service connection for a disability would not be warranted even if the tobacco use was related to service. See 38 U.S.C.A. § 1103  (West 2002); 38 C.F.R. § 3.300(a). 

The preponderance of the competent medical evidence of record, including the October 2011 VA examination report, which is entitled to the most probative weight in this case, shows that the Veteran's chronic bronchitis was not caused by his in-service episode of bronchial pneumonia in December 1995. 

The Board notes that the Veteran has submitted three medical treatises in support of his claim: "Etiology of Primary Atypical Pneumonia in a Military Population," "Eaton Agent Pneumonia," and "The Atypical Pneumonia Syndrome." Generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish a nexus. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The exception to this competency rule is when the medical treatise information, where "standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Wallin v. West, 11 Vet. App. 509, 513 (1998). 

The treatises titled "Etiology of Primary Atypical Pneumonia in a Military Population" and "Eaton Agent Pneumonia" pertain to outbreaks of pneumonia in certain populations and do not address residual chronic lung problems. They do not address the pertinent facts in the Veteran's individual case, and were not referenced in any supporting medical evidence of record. Sacks v. West, 11 Vet. App. 314, 316-17 (1998). Thus, they cannot support his claim. "The Atypical Pneumonia Syndrome" states that "it is likely that viral or mycoplasma infections of the lung occasionally lead to irreversible or chronic pulmonary damage. Adenovirus in children has resulted in bronchiectasis or lobar bronchiolar obstruction with emphysema." It elaborates that some adults with chronic bronchitis gave a history of pneumonia as a child "suggesting the need for further studies of the relationship of atypical pneumonia to chronic pulmonary disease."  This treatise does not support the Veteran's claim because he did not have pneumonia as a child and does not address pertinent facts in the Veteran's case such as a history of smoking. 

Medical treatise information may be regarded as competent evidence where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Wallin v. West, 11 Vet. App. 509, 513 (1998). 

The Board finds that none of the material submitted in this case meets the standard set forth in Wallin because it does not delve into an association between the veteran's service and his currently demonstrated bronchitis. These articles and excerpts proffered by the Veteran are less probative than other medical evidence of record as not one of them applies the specific facts to this specific case. Sacks v. West, 11 Vet. App. 314, 317 (1998). 

In conclusion, the preponderance of the evidence is against a finding that the Veteran's current chronic bronchitis and COPD are due to any event or injury in service. Further, the preponderance of the evidence shows that he was not exposed to asbestos during service and does not have asbestosis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 







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ORDER

Service connection for a lung condition is denied. 




____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs