Citation Nr: 0311183
Decision Date: 06/02/03	Archive Date: 08/07/03

DOCKET NO. 94-41 385               DATE JUN 02, 2003

On appeal from the Department of Veterans Affairs Regional Office
in Portland, Oregon

THE ISSUE

Entitlement to service connection for a chronic pulmonary
disability as residual to Agent Orange herbicide exposure or to
asbestos exposure.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Frank L. Christian, Counsel

INTRODUCTION

The veteran served on active duty in the United States Navy from
June 1965 to June 1967, including service in the offshore waters of
the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on
appeal from a rating decision of October 1993 from the Department
of Veterans Affairs (VA) Regional Office (RO) in Montgomery,
Alabama, which determined that new and material evidence has not
been submitted to reopen the claim for service connection for a
chronic pulmonary disability as residual to Agent Orange (AO)
herbicide exposure or asbestos exposure since the last final denial
of that claim by rating decision of December 1981.

This claim was previously before the Board in July 2001, at which
time it was determined that new and material evidence has been
submitted to reopen the claim for service connection for a chronic
pulmonary disability as residual to AO herbicide exposure or
asbestos exposure. The case was remanded for additional
notification and assistance to the claimant in compliance with the
Veterans Claims Assistance Act of 2000 (VCAA), to include obtaining
all pertinent private and VA treatment records of the claimant not
already associated with the claims folder; to solicit any further
information as to dates, times, places, witnesses, or other data
that would assist in corroborating the claimant's account of being
exposed to asbestos or herbicides; and to afford the claimant a VA
pulmonary examination by a qualified examiner who has reviewed his
claims folder to ascertain whether the appellant's lung disorder
was caused by in-service exposure to asbestos or herbicides. The
requested actions have been satisfactorily completed and the case
has been returned to the Board for further appellate consideration.

There has been a significant change in the law with the enactment
of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
3(a), 114 Stat. 2096, 2097- 98 (2000) [codified as amended at 38
U.S.C.A. 5102, 5103, 5103A, and 5107

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(West 2000)]. This law eliminates the concept of a well-grounded
claim, redefines the obligations of VA with respect to the duty to
assist, and supersedes the decision of the United States Court of
Appeals for Veterans Claims (the Court) in Morton v. West, 12 Vet.
App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517
(U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding that VA
cannot assist in the development of a claim that is not well
grounded). The VCAA is applicable to all claims filed on or after
the date of enactment, November 9, 2000, or filed before the date
of enactment and not yet final as of that date. See Karnas v.
Derwinski, 1 Vet. App. 308, 312-13 (1991).

In Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), the Court
held that where a statute or regulation changes during the
appellate process, the version more favorable to the claimant shall
apply. VA's General Counsel has determined, in a precedential
opinion that the Board is bound to follow, that the VCAA is more
favorable to claimants than the law in effect prior to its
enactment. See VAOPGCPREC 11-00; Janssen v. Principi, 15 Vet. App.
123 (2001) (per curiam).

Final regulations to effectuate the VCAA were published on August
29, 2001 with the same effective date of the VCAA, November 9,
2000. Except for the amendment to 38 CFR 3.156(a), the second
sentence of 38 CFR 3.159(c), and 38 CFR 3.159(c)(4)(m), effective
August 29, 2001, governing reopening of previously and finally
denied claims, the provisions of this final rule apply to any claim
for benefits received by VA on or after November 9, 2000, as well
as to any claim filed before that date but not decided by VA as of
that date. As the instant appeal does not address a reopened claim,
the revised regulations pertaining to reopened claims are
inapplicable to this matter.

The record shows that the claimant and his representative were
notified of the provisions of the VCAA by RO letter of January 28,
2002, which informed them of VA's duty to notify them of the
information and evidence necessary to substantiate the claim and to
assist them in obtaining all such evidence. That letter also
informed the claimant and his representative which part of that
evidence would be obtained by the RO and which part of that
evidence would be obtained by the

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claimant, pursuant to Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002) (requiring VA to notify the claimant of what evidence he or
she was required to provide and what evidence the VA would attempt
to obtain).

The claimant and his representative were also provided a
Supplemental Statement of the Case on January 30, 2003, which
informed them of the issue on appeal, the evidence considered, the
adjudicative actions taken, the pertinent law and regulations
pertaining to service connection generally and to service-
connection based upon herbicide exposure, the decision reached, and
the reasons and bases for that decision.

The Board finds that all relevant evidence necessary for an
equitable disposition of the instant appeal has been obtained by
the RO, and that VA's duty of notification to the claimant and his
representative of required information and evidence and of its duty
to assist them in obtaining all evidence necessary to substantiate
the issue on appeal have been fully met. The RO has obtained the
claimant's complete service medical and personnel records, as well
as all private or VA medical evidence identified by the claimant.
The RO has further afforded the claimant a personal hearing before
an RO Decision Review Officer in March 1999, and a hearing in May
2001 before the undersigned traveling Veterans Law Judge of the
Board of Veterans' Appeals. Neither the appellant nor his
representative have argued a notice or duty to assist violation
under the VCAA, and the Board finds that it is clear that the
appellant and his representative were fully notified and aware of
the type of evidence required to substantiate the claim. In view of
the extensive factual development in the case, as demonstrated by
the Board's July 2001 remand order and the record on appeal, the
Board finds that there is no reasonable possibility that further
assistance would aid in substantiating this appeal. For those
reasons, further development is not necessary for compliance with
the provisions of 38 U.S.C.A. 5103 and 5103A (West 2000).

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FINDINGS OF FACT

1. All relevant evidence necessary for an equitable disposition of
the instant appeal has been obtained by the RO, and VA's duty of
notification to the claimant of required information and evidence
and of its duty to assist him in obtaining all evidence necessary
to substantiate his claim have been fully met.

2. The claimant's service medical records are silent for complaint,
treatment, findings or diagnosis of a chronic pulmonary disability
during active service, on service separation examination, within
any applicable presumptive period, or at any time prior to October
1978, more that 11 years after final service separation.

3. The claimant does not have a chronic lung disease which is
presumptively related to AO herbicide exposure, and does not have
asbestosis or an asbestosis- related pleural disease.

4. Competent medical evidence and opinion has related the
claimant's current COPD to his 70-pack-year smoking history.

CONCLUSION OF LAW

A chronic pulmonary disability was not incurred in or aggravated by
active service, and was not caused or worsened by AO herbicide
exposure or by asbestos exposure. 38 U.S.C.A. 1110, 1116(a), 5013,
5013A (West 2000); 38 C.F.R. 3.102, 3.303(a), 3.303(e),
3.307(a)(6), 3.309(a)(d), 3.313(a) (2002).

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REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. The Evidence

In view of the determination that new and material evidence has
been submitted to reopen the claim for service connection for a
chronic pulmonary disability (COPD), claimed as residual to AO
herbicide exposure or asbestos exposure while on active duty, the
Board will address the claim on a de novo basis, including
consideration of all the evidence, both old and new.

As noted, the claimant served on active duty in the United States
Navy from June 1965 to June 1967. A report of service entrance
examination, conducted in June 1965, showed that his lungs and
chest were normal. His service medical records are silent for
complaint, treatment, findings, or diagnosis of a lung or pulmonary
disorder during his period of active service or on service
separation examination. A report of chest X-ray in November 1966
disclosed that his chest was normal. The claimant's report of
service separation examination, conducted in June 1967, showed that
his lungs and chest were normal, and a chest X-ray was negative for
any abnormalities.

The claimant's service personnel records show that he was stationed
aboard USS O'BRIEN (DD 725) during his entire period of active
duty. In June 1966, he was awarded the National Defense Medal, and
was awarded the Vietnam Service Medal (VCM) for duty in waters
contiguous of Vietnam. Those records further establish that the
claimant served in the offshore waters of the Republic of Vietnam,
from November 18 through 24, 1965; from January 16 through February
2, 1966; from December 20 through 24, 1966; from January 9 through
January 24, 1967; from March 31 through April 17, 1967; and from
June 24 through July 7, 1967.

An October 1970 report of medical history completed by the claimant
in connection with his reenlistment in the Naval Reserve denied any
history of shortness of breath, asthma, chronic cough, or chest
pain or pressure in the chest. A report of medical

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examination for reenlistment in the Naval Reserve, conducted in
October 1970, showed that his lungs and chest were normal, and a
chest X-ray was negative.

The claimant's original application for VA disability compensation
benefits (VA Form 21-526), received in October 1978, made no
mention of a pulmonary or lung disorder.

Private treatment records from the Columbia Memorial Hospital, a
private medical facility in Astoria, Oregon, show that the claimant
was seen in the Emergency Room on October 6, 1978, with an acute
episode of shortness of breath, and no breath sounds in the right
lung. X-rays revealed a well-defined right-sided pneumothorax, with
approximately 75% collapse of the lung, and bullous emphysema was
present at the apex. Following insertion of a chest tube, his
respiratory distress immediately improved. The claimant related
that he had a history of 3 automobile accidents, the most recent in
1970, when he sustained multiple contusions of the right ribs and
multiple lacerations. He was admitted with a diagnosis of
spontaneous pneumothorax. Further X-rays revealed pneumonic
infiltrates in the right perihilar area and right base, with
bilateral bullous emphysema at the apices. The claimant was
subsequently transferred to the VAMC, Vancouver, on October 13,
1878.

On October 13, 1978, the appellant was hospitalized at a VA
facility and underwent right and left thoracotomies with
pleurodeses. It was noted that the appellant had been admitted to
a private medical facility after sustaining a right-sided
spontaneous pneumothorax with emphysematous blebs in both lungs;
that the appellant was then smoking between two and three packs of
cigarettes daily; and that he was advised to discontinue smoking
permanently; otherwise he would have a destroyed lung, which was
not reversible. The claimant underwent a bilateral blebectomy,
without complications, and postoperative treatment records showed
that the claimant's lungs were clear, without rales, and a chest X-
ray was described as looking good, with no evidence of
pneumothorax. The treating physician noted that the appellant was
continuing to smoke when discharged from the hospital in November
1978.

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VA outpatient treatment records, dated from February to October
1979, show that in February 1979, the claimant was doing well and
working full time, while in March 1979, he was seen complaining of
a cold and coughing for the past four weeks, diagnosed as a
resolving upper respiratory infection with emphysema. A chest X-
ray in June 1979 disclosed no change from previous films taken in
December 1978. In October 1979, the claimant was seen for
complaints of pain in the upper right chest, worse on deep
breathing, and a non-productive cough. It was noted that
emphysematous blebs were diagnosed in October 1978, while current
examination revealed that his throat was clear, without rales, and
a chest X-ray was negative.

In a statement received in December 1979, the appellant alleged he
had a bilateral lung condition caused by in-service exposure to
asbestos. He stated that his symptoms of coughing began during such
service.

A January 1980 report from a private physician, Dr. G.H., shows
that the claimant underwent surgery in November 1978 after his
lungs collapsed; that he currently had a 64% loss of lung function;
and that he was very weak because of his lung trouble.

A report of VA examination, conducted in February 1980, cited the
claimant's assertion that he was exposed to asbestos for two years
while in the Navy; that he started smoking 1 to 1 1/2 packs of
cigarettes daily in 1964, and currently smoked a half-pack daily;
that he has had a chronic cough since 1965; that in October 1978,
he was admitted to the VAMC, Vancouver, with a spontaneous right-
sided pneumothorax, and underwent a removal of blebs during that
hospitalization. He related that he was a long-haul truck driver in
the past, but was not able to work around dust or diesel fumes.
Examination disclosed well-healed, nontender, 6" thoracotomy scars
in both axilla. The pertinent diagnoses were COPD (mild by
pulmonary function tests (PFT's)), with spontaneous pneumothorax,
right side; bilateral emphysematous blebs; and status post
bilateral thoracotomies with pleurodesis for the blebs.

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In a March 1980 statement, Dr. E.L.M., a VA physician, reported
that the appellant's recent PFT's tests demonstrated moderately
severe obstructive emphysema, and that radiographic examination
detected residuals of old fibrosis or pleural reaction in both of
the upper thoraces.

A rating decision of April 1980 denied service connection for a
lung disability as residual to asbestos exposure. The claimant was
notified of that adverse determination and of his right to appeal
by RO letter of May 13, 1980, but did not initiate an appeal and
that decision became final.

In August 1981, the claimant submitted an application for VA
disability compensation or pension benefits for bilateral lung
disabilities, alleging that he was exposed to AO herbicide while in
Vietnam aboard ship, and that he was breathing asbestos dust all
the time while aboard ship. In September 1981, the appellant
submitted a VA Herbicide Exposure questionnaire. In part, he
reported that on several occasions while serving off of the coast
of Vietnam, he was exposed to the herbicide "Agent Orange" during
"Operation Ranch Hand."

During a further VA medical examination in November 1981, the
appellant reiterated that he had been exposed to asbestos and
herbicides while serving on active naval duty. As to the former, he
reported that asbestos powder could be seen coming from the ship's
insulation when guns were fired, and that the vessel's steam pipes
were all insulated with the material. He also claimed that his
vessel came close to the shoreline where herbicides were being used
between 1965 to 1967, and that dispersing aircraft flew overhead
frequently. It was noted that the appellant was still smoking about
a quarter of a pack of cigarettes per day. Pulmonary function tests
revealed that overall ventilatory function was normal, while there
was severe obstruction to expired air flow in small airways. The
pertinent diagnoses were COPD, with history of spontaneous
pneumothorax, right side; bilateral emphysematous blebs; and status
post bilateral thoracotomies with pleurodesis, bilaterally.

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A rating decision of April 1980 denied service connection for a
lung disability as residual to Agent Orange (AO) herbicide
exposure. The claimant and his representative were notified of that
adverse determination and of his right to appeal by RO letter of
December 13, 1981, but did not initiate and appeal and that
decision became final.

A VA hospital summary, dated in February 1982, shows that the
claimant was admitted for symptoms unrelated to the current claim.
That summary shows that the claimant had severe emphysema,
shortness of breath, and a cough, with a history of previous
surgery for emphysematous blebs, but continues to smoke a quarter-
pack of cigarettes daily.

The appellant sought to reopen his claim by application received in
June 1993. A report of VA pulmonary examination in September 1993,
cited a history of asbestos and herbicide exposure as recounted by
the claimant, and it was noted that the appellant was then smoking
a half of a pack of cigarettes per day. He reported that he served
aboard ship, acting as a coastal patrolman, about 100-150 feet off
the beaches of Vietnam, and was exposed to AO herbicide. The
claimant reported that after service, he was doing fine and working
full-time as a long haul truckdriver, when he experienced an acute
shortness of breath, and was hospitalized for pneumothorax. He
returned to employment as a truckdriver in early 1979 and continued
until 1984, quitting because of long hours and stress. He related
that he worked in auto repair from 1984 to 1986, operated a tavern
from 1986 to 1988, and took a full-time job at the Cascade General
Shipyard as a sand blaster and painter, where he remained currently
employed. Pulmonary function tests revealed a mild overall
ventilatory impairment, with a moderate obstructive component, and
chest X-ray revealed emphysema. The appellant was diagnosed with
emphysema, and it was noted that he had very early onset of severe
bulbous emphysema. Although the appellant reported being exposed to
"Agent Orange," it was noted that he then showed no evidence of
chloracne or neoplasms.

A rating decision of October 1993 determined that new and material
evidence had not been submitted to reopen the claim for service-
connection for a lung condition

10- 

as residual to asbestos exposure. The claimant and his
representative were notified of that adverse determination and of
his right to appeal by RO letter of October 29, 1993.

In a statement received in February 1994, the appellant claimed
that when on active naval service, he was told by a ship's
physician that he had been exposed to "Agent orange." He added that
he had stood on the decks of U.S.S. O'BRIEN as helicopters flew
over the ship to spray the waters with the substance in an effort
to kill fish and diminish the enemy's food supply. In his
substantive appeal, the ,appellant claimed that at the time of his
October 1978 thoracotomies, he was informed by two physicians that
he had "Agent Orange in [his] system." That Document was accepted
as a Notice of Disagreement, and a Statement of the Case was
provided the claimant and his representative in August 1994. In his
Substantive Appeal (VA Form 9), received in October 1994, the
claimant alleged that he had lost 2/3's of his lung capacity due to
AO herbicide and asbestos exposure. He requested a personal hearing
before an RO Hearing Officer and a hearing before a traveling
Veterans Law Judge of the Board of Veterans' Appeals.

A report of VA medical examination in November 1994 cited the
claimant's statement that he continued to smoke from one-quarter to
one-half of a pack of cigarettes per day, and a smoking history of
at least 40-pack-years. The appellant reported that he had been
exposed to asbestos while in service. In part, the diagnoses
showed, in pertinent part, that the claimant had chronic
obstructive pulmonary disease, with evidence of a severe small
airways disease on pulmonary function tests.

A report of private medical examination for the Social Security
Administration (SSA), conducted in October 1995, shows that the
claimant was alert and slightly obese; and that his former
occupations were sand blaster and painter. He complained of some
shortness of breath, which he related to AO herbicide exposure, and
indicated that he smoked one-quarter to one-half packs of
cigarettes daily, down from two packs daily. The assessment was
emphysema and fibrosis of the lungs.

In a statement received in October 1996, the appellant stated that
one of the VA physicians who treated him in October 1978 and
informed him that he had "Agent Orange" in his system, was Dr.
E.M., who had performed his surgery.

A rating decision of January 1997 denied service connection for a
lung disability as residual to herbicide exposure. The claimant and
his representative were notified of that adverse determination and
of his right to appeal by RO letter of February 5, 1997.

The appellant underwent a VA respiratory examination in March 1998.
The examiner reported that the appellant's VA claims folder had
been reviewed. However, he further observed that the appellant had:

" ... a history of spontaneous pneumothoraxes bilaterally in 1978.
He had bilateral chest tubes, and in fact it sounds like he had a
thoracotomy. Medical records from that period of time are not
available, so I cannot elaborate further on the procedures that
were done at that time."

The examiner observed that the appellant had reported a history of
asbestos exposure while on ships during service in the 1960's, and
that subsequent to service, the appellant worked as an automotive
mechanic, a construction worker, and in shipyards. The examiner
also noted that the appellant had some degree of obesity (283
pounds); that he had a 50-60-pack-year history of smoking; and that
he was then smoking approximately one pack of cigarettes per day.
The VA pulmonary examiner diagnosed chronic obstructive pulmonary
disease, recommending further chest X-rays and pulmonary function
tests(PFT's), and stated that if the PFT's indicate restrictive
disease, part of that would be due to the obesity, although
restrictive airway disease can be a result of asbestosis as well,
so that would be a probable contributing factor. He further noted
that if the chest X-ray showed plaques, such would be indicative of
asbestos. He expressed the opinion that the majority of the
claimant's breathing problem was from obstructive

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pulmonary disease which was not from asbestos but was highly
probably the result of his smoking history, while stating that if
the PFT's showed restrictive disease, it would be his opinion that
it was at least worsened by exposure to asbestos.

Current PFT's disclosed moderate ventilatory impairment, with a
severe obstructive component, reversible with bronchodilators.
There were no findings of restrictive disease. A chest X-ray
disclosed that the claimant's lungs were hyperaerated, with
apparent bullae in the right pulmonary apex; a fine, linear pattern
of opacity, diffusely, which was most likely related to scarring,
with multiple areas of pleural thickening in the upper and mid-
thoracic wall region, bilaterally, while the pulmonary hilar
contours were within normal limits, and there was no evidence of
consolidation or parenchymal nodular densities or pleural
calcifications. The radiographic impression was hyperaeration and
probable pulmonary fibrosis, findings which are compatible and
consistent with the proffered history of asbestos exposure, and
bilateral, prominent pleural plaques compatible with asbestos-
related disease.

VA outpatient treatment records, dated in June 1998, showed that
the claimant had a history of pneumothorax, with bilateral
thoracotomy and pleurodesis, which the claimant related to AO
herbicide exposure. It was noted that his chart also showed a
diagnosis of COPD/ reactive airway disease, and that the claimant
continued to smoke.

Medical records obtained from the Social Security Administration
(SSA) show, in pertinent part, that the claimant was seen in the
emergency room of Columbia Memorial Hospital in October 1978 with
an acute episode of shortness of breath. A surgical report, written
by Dr. T.A.P., noted that the appellant's past medical history was
"essentially unremarkable," and that he had been involved in 3
automobile accidents - the last occurring about eight years
previously and causing the appellant to have multiple contusions of
the right ribs.

A personal hearing was held at the RO in March 1999 before an RO
Decision Review Officer. In substance, the claimant reiterated his
prior accounts of having

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been exposed to herbicides and asbestos during active naval
service. A transcript of the testimony is of record.

In January 2000, a statement was received from a Navy Liaison
office. The agency reported that it was unable to determine to what
extent the appellant was exposed to asbestos during his service. It
added that while general specifications for ships required that
heated surfaces be covered with insulation at the time of the
appellant's service, and it was "highly probable" that asbestos
products were used, the probability to the appellant being exposed
to asbestos as a seaman was minimal.

In a February 2000 letter to the RO, the claimant asserted that he
was exposed to AO herbicide while on active duty; and that he was
told by service physicians at the time of service separation that
he should think seriously before having children because the long
term effects of AO herbicide were unknown;

A December 2000 letter from Dr. L.L.A., a physician at the VAMC,
Portland, stated that the claimant was a patient in her Internal
Medicine practice at the VAMC; that he had a history of asbestos
exposure, with finding of multiple areas of pleural thickenings on
his chest x-rays.

In February 2001, the claimant appointed Disabled American Veterans
(DAV) as his accredited service organization representative,
revoking all previous appointments.

In April 2001, the claimant submitted an application for a total
disability rating based upon unemployability due to service-
connected disabilities (VA Form 21-8940). He reported that he was
employed as a sand blaster and painter from March 1989 to September
1993.

In May 2001, the appellant testified before the undersigned
traveling Veterans Law Judge of the Board of Veterans' Appeals, and
reiterated his prior contentions regarding exposure to AO herbicide
and asbestos while on active duty. A transcript of the testimony is
of record.

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Following the Board's July 2001 determination that new and material
evidence had been submitted to reopen the claim for service
connection for a chronic pulmonary disability as residual to AO
herbicide exposure or asbestos exposure, the case was remanded for
additional notification and assistance to the claimant in
compliance with the Veterans Claims Assistance Act of 2000 (VCAA),
and for additional development of the evidence, as more fully
described previously in that remand order.

In an Asbestos Exposure Questionnaire, completed by the claimant in
February 2002, he asserted that he was exposed to asbestos while a
Torpedoman and Bosun's Mate serving aboard USS O'BRIEN (DD 725) in
1965, 1966, and 1967; and that he was exposed to AO herbicide while
serving aboard USS O'BRIEN (DD 725) in 1965, 1966, and 1967.

An Employer's Statement (VA Form 21-4192), received in June 2002,
related that the claimant was laid off on September 23, 1993.

A Ship's History of USS O'BRIEN (DD 725), received in December
2002, showed that O'BRIEN was attached to the 7th Fleet in August
1965, and was ordered to patrol the Taiwan Straits; that in
November 1965, O'BRIEN provided gunfire support to a surrounded
outpost in Quang Ngai province; that in January and early February
1966, O'BRIEN supported carrier operations, conducted search and
rescue missions in the Tonkin Gulf, and provided gunfire support
for amphibious landing near Cape Batangan, Operation "Double
Eagle"; that after November 1966, O'BRIEN became flagship for
Operation "Sea Dragon", a surface action task unit off North
Vietnam, where she was ordered to interdict enemy coastal traffic,
and receiving fire from enemy coastal batteries north of Dong Hoi
in December 1966; that in January 1967 and subsequently, O'Brien
provided support for air strikes from carriers in the Tonkin Gulf,
returning to patrol duty in the Taiwan Strait in February and March
1967. In late March 1967, O'Brien returned to the Tonkin Gulf as a
carrier escort and subsequently participated in "Sea Dragon"
operations,

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where she served as flagship for the Commander, Destroyer Division
232, until returning to Long Beach in May 1967.

A report of VA pulmonary examination, conducted in October 2002,
cited the claimant's assertion that he was exposed to asbestos
while serving aboard a United States Navy ship from 1965 to 1967;
that the bulkhead compartments and work areas were lined with
asbestos; that the claimant had bilateral thoracotomies for
pneumothoraxes, with a right pleurodesis; that the claimant
continues to smoke a half-pack per day, down from two packs a day;
that he has a 70-pack-year smoking history, and has been diagnosed
with COPD, treated with theophylline, Atrovent, and albuterol and
steroid inhalers. The examiner stated that he was not able to
discern evidence in the medical records of calcified plaques, or
any clear evidence of asbestosis. Examination disclosed that the
claimant was obese, weighing 256 pounds, but was currently
breathing comfortably, with no wheezing, no intercostal
retractions, and no accessory muscle use. His lungs were clear,
with a somewhat poor excursion, while marked clubbing of the
fingers of both hands was noted, without cyanosis or edema. The
examination was otherwise unremarkable. The diagnoses were severe
COPD with previous PFT findings in 1998 showing severe obstructive
disease, which the examiner stated was probably the main cause of
his respiratory symptoms, while his obesity was likely a
contributing cause; and no clear evidence of asbestosis or
asbestos-related pleural disease, with no findings of calcified
pleural plaques. Current chest X-rays revealed left costophrenic
angle discoid atelectasis versus scarring, with no active disease
in the chest, and no evidence of calcified pleural plaques or
evidence of asbestosis in the claimant, while current PFT's
disclosed severe obstructive ventilatory disease.

The claimant underwent another VA pulmonary examination in January
2003, following the examiner's review of the claims file. The
examiner called attention to 44 exhaustive findings in the claims
file of emphysema and COPD", without "any diagnostic test results
indicating asbestosis or asbestos-related pleural disease" in the
claimant. He noted records confirming pneumothoraces in 1978, at
which time the claimant was a heavy smoker of two or three packs
daily, with findings of pneumothorax secondary to emphysematous
blebs. He further cited clinical

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evidence in June 1995 that the claimant was being treated with
theophylline, Amzacort, and albuterol for his COPD, while in
October 1995, he was shown on PFT's to have severe obstructive
disease and it was noted that his civilian occupation had been
sandblaster and painter.

The VA pulmonary examiner noted that, while it was probable that
the claimant did have a considerable amount of asbestos exposure,
there was no evidence in the record of test results establishing
the presence of asbestosis or asbestos-related pleural disease in
the claimant. The examiner expressed the opinion that in the
absence of any objective tests showing asbestosis or asbestos-
related pleural disease in the claimant, together with his
documented 70+-pack-year smoking history with severe COPD
documented for many years, there was less than 50 percent
probability that there was any significant contribution to his
respiratory symptoms from the asbestos exposure that he had in the
past. He further indicated that the claimant's obesity might have
had some contribution to the claimant's respiratory symptoms to
which the claimant's COPD was the major contributing factor, so
that his obesity might contribute somewhat to his respiratory
symptoms but not to his COPD. He further clarified that the
claimant's COPD was more probably than not the primary cause of his
respiratory symptoms. In addition, the VA pulmonary examiner stated
that AO herbicide exposure has not been established as a cause of
COPD, and that in his opinion, there was less than a 50 percent
probability that AO herbicide exposure is a cause of the claimant's
COPD.

VA outpatient treatment records from the VAMC, Portland, Vancouver
and Portland Divisions, dated from January 2000 to January 2003,
show that the claimant continued to obtain medication and inhalers
for his COPD.

II. Analysis

in order to establish service connection for claimed disability,
the facts, as shown by evidence, must demonstrate that a particular
disease or injury resulting in current disability was incurred
during active service or, if preexisting active service, was
aggravated therein. 38 U.S.C.A. 1110, 1131 (West 2000); 38 C.F.R.
3.3 03(a)

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(2002). Service connection may also be granted on a presumptive
basis for certain chronic disabilities, including bronchiectasis,
when manifested to a compensable degree within the initial post
service year. 38 C.F.R. 3.307, 3.309(a) (2002).

A veteran who served during a period of war or during peacetime
service after December 31, 1946, is presumed in sound condition
except for defects noted when examined and accepted for service. 38
U.S.C.A. 1111, 1137 (West 2000). Clear and unmistakable evidence
that the disability existed prior to service will rebut this
presumption. 38 U.S.C.A. 1111 (West 2000); 38 C.F.R. 3.304(b)
(2002).

In addition, if a condition noted during service is not shown to be
chronic, then continuity of symptomatology after service generally
is required for service connection. 38 C.F.R. 3.303(b) (2002). The
chronicity provision of 38 C.F.R. 3.303(b) is applicable where
evidence, regardless of its date, shows that a veteran had a
chronic condition in service or during an applicable presumption
period and still has such condition. Such evidence must be medical
unless it relates to a condition as to which, under the court's
case law, lay observation is competent. If the chronicity provision
is not applicable, a claim may still be established or reopened on
the basis of 38 C.F.R. 3.303(b) if the condition is observed during
service or any applicable presumption period, continuity of
symptomatology is demonstrated thereafter, and competent evidence
relates the present condition to that symptomatology. Savage v.
Gober, 10 Vet. App. 488 (1997).

As a general matter, reliance upon the records of the service
department is now well settled. See Soria v. Brown, 118 F.3d 747,
749 (Fed. Cir. 1997); Spencer v, West, 13 Vet. App. 376, 380
(2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall
v. Brown, 7 Vet. App. 232, 237 (1994). In this matter, there is no
reason to question the appellant's service medical and personnel
records as to their accuracy. Sarmienti v. Brown, 7 Vet. App. 80,
82-83 (1994). These records appear complete on their face, and
disclose no complaint, treatment, findings or diagnosis of a
chronic pulmonary right ankle trauma or pathology during active
service.

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A disability which is proximately due to or the result of a
service-connected disease or injury shall be service connected.
When service connection is thus established for a secondary
condition, the secondary condition shall be considered a part of
the original condition. 38 U.S.C.A. 1110, 1131 (West 2000); 38
C.F.R. 3.310(a) (2002); Harder v. Brown, 5 Vet. App. 183, 187
(1993).

The United States Court of Veterans' Appeals (Court) has held, in
pertinent part, that the term "disability" as used in 38 U.S.C.A.
1110 (West 2000) refers to impairment of earning capacity, and that
such definition mandates that any additional impairment resulting
from an already service-connected condition, regardless of whether
or not the additional impairment is itself a separate disease or
injury caused by the service-connected condition, shall be
compensated (emphasis in original). Thus, pursuant to 38 U.S.C.A.
1110 and 38 C.F.R. 3.310(a) (2002), when aggravation of a veteran's
nonservice-connected condition is proximately due to or the result
of a service-connected condition, such veteran shall be compensated
for the degree (but only that degree) over and above the degree of
disability existing prior to the aggravation. Allen v. Brown, 7
Vet. App. 439,448 (1995).

Evidence of the veteran's current condition is not generally
relevant to the issue of service connection, absent some competent
linkage to military service. See, e.g., Morton v. Principi, 3 Vet.
App. 508, 509 (1992); Mingo v. Derwinski, 2 Vet. App. 51, 53
(1992).

The Court has held that a lay person, such as the claimant, is not
competent to offer evidence that requires medical knowledge, such
as the diagnosis or cause of a disability. See Ramey v. Brown, 9
Vet. App. 40 (1996); Cromley v. Brown, 7 Vet. App. 376, 379 (1995);
Holland v. Brown, 6 Vet. App. 443 (1994); Grottveit v. Brown, 5
Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492,
495 (1992). If such evidence is not competent, it cannot be
probative. As causative factors of a disease amount to a medical
question; only a physician's opinion would be competent evidence.
Gowen v. Derwinski, 3 Vet. App. 286, 288 (1992). A claimant's
statements as to nexus are entitled to no probative weight. Layno
v. 

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Brown, 6 Vet. App. 465 (1994). The Court has held, however, that a
veteran's statements are competent as to the onset and continuity
of symptomatology, including pain. Heuer v. Brown, 7 Vet. App. 379,
384 (1995); Falzone v. Brown, 8 Vet. App. 398, 405 (1995).

A service connection claim must be accompanied by evidence which
establishes that the claimant currently has the claimed disability.
See Caluza v. Brown, 7 Vet. App. 498 (1995), affirmed per curiam,
78 F.3d 604 (Fed. Cir. 1996); Brammer v. Derwinski, 3 Vet. App.
223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144
(1992). In the instant appeal, the medical evidence includes no
clinical or radiographic findings or competent diagnosis showing
asbestosis or asbestosis- related pleural disease in the claimant,
and he does not meet the minimum requirements for an allowance of
service connection for such disability on a direct or secondary
basis in the absence of such diagnosis. See, e.g., Degmetich v.
Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d
1353 (Fed. Cir. 1998) [service connection may not be granted unless
the claimed disability currently exists].

Under the statutory and case law, it is clear that a fundamental
element of a claim for service connection is competent evidence of
"current disability." See Rabideau and Brammer, supra. A "current
disability" means a disability shown by competent medical evidence
to exist at the time of the award of service connection. See
Degmetich, supra. As the Court has held, the regulatory definition
of "disability" is the "...impairment of earning capacity resulting
from such diseases or injuries and their residual conditions...."
38 C.F.R. Part 4, 4.1 (2002); Hunt v. Derwinski, 1 Vet. App. 292,
296 (1991). No such disability involving the claimant's pulmonary
system and attributable to herbicide or asbestos exposure has been
medically identified or clinically demonstrated or diagnosed in
this case, despite the several VA clinical evaluations of the
claimant.

A chronic disease ... listed in 3.309 will be considered to have
been incurred in service under the circumstances outlined in this
section even though there is no evidence of such disease during the
period of service. No condition other than one

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listed in 3.309(a) will be considered chronic. 38 C.F.R. 3.307(a)
(2002). COPD is not a disease listed in 3.309(a).

A disease associated with exposure to certain herbicide agents
means a chemical in @i herbicide used in support of the United
States and allied military operations in the Republic of Vietnam
during the period beginning on January 9, 1962, and ending on May
7, 1975. 38 U.S.C.A. 1116(a)(4) (West 2000); 38 C.F.R. 3.307(a)(6)
112002). A veteran who, during active military, naval, or air
service, served in the Republic of Vietnam during the period
beginning on January 9, 1962, and ending on May 7, 1975 and has a
disease listed at 3.309(e) shall be presumed to have been exposed
during such service to an herbicide agent, unless there is
affirmative evidence to establish that the veteran was not exposed
to any such agent during that service. The last date on which such
a veteran shall be presumed to have been exposed to an herbicide
agent shall be the last date on which he or she served in the
Republic of Vietnam during the period beginning on January 9, 1962,
and ending on May 7, 1975. "Service in the Republic of Vietnam"
includes service in the waters offshore and service in other
locations if the conditions of service involved duty or visitation
in the Republic of Vietnam. 38 U.S.C.A. 1116(a)(3)(m) (2002); 38
C.F.R. 3.313(a) (2002). COPD is not one of the diseases listed at
3.309(e).

It is the Board's responsibility to evaluate the credibility and
probative value of proffered evidence in relation to the record in
its whole. See, e.g., Owens v. Brown, 7 Vet. App. 429, 433 (1995);
Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5
Vet. App. 155, 161 (1993). The Board places very little weight on
the veteran's self-serving statements regarding either AO herbicide
exposure or asbestosis exposure during active service as the cause
of his current pulmonary disability, which is diagnosed as
emphysema, or COPD, and which has been attributed by competent
medical evidence and opinion to the claimant's 70-pack- year
smoking history, which is clearly documented in the record. See
Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [interest may
affect the credibility of testimony]. The Board finds that the
veteran's statements are outweighed by his

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official service medical records, including his service separation
examination, which are devoid of reference to any chronic pulmonary
disability or pathology.

Self interest may effect the credibility of testimony, although not
the competency to testify. Cartwright v. Derwinski, 2 Vet. App. 24,
25 (1991) An appellant's sworn statement, then, unless specifically
found incredible or sufficiently rebutted, may serve to place the
evidence in equipoise. The VA may not ignore the appellant's sworn
testimony simply because he is an interested party. Smith, id., at
147, 148; Cartwright, id., at 24, 25. Credibility is a factual
determination going to the probative value of the evidence, and is
made after the evidence is admitted. Layno v. Brown, 6 Vet. App.
465, 469-70 (1994). ]

The record in this case is silent for complaint, treatment,
findings or diagnosis of a chronic pulmonary disability during
active service, at the time of service separation examination, or
at any time prior to October 1978, more than 11 years after final
service separation. In addition, a report of medical examination
for reenlistment in the Naval Reserve, conducted in October 1970,
showed that the claimant's lungs and chest were normal, and a chest
X-ray was negative.

The claimant's original application for VA disability compensation
benefits (VA Form 21-526), received in October 1978, made no
mention of a pulmonary or lung disorder.

The first evidence of a pulmonary disability in the claimant is
dated in October 1978, when the claimant experienced a spontaneous
right-sided pneumothorax, and underwent right and left
thoracotomies with pleurodeses. No etiology of that condition was
offered by the attending private or VA physicians. The claimant
underwent a bilateral blebectomy for removal of emphysematous
blebs, without complications, and postoperative treatment records
showed that the claimant's lungs were clear, without rales, and a
chest X-ray was described as looking good, with no evidence of
pneumothorax. The treating physician noted that the appellant was
continuing to smoke when discharged from the hospital in November
1978.

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Based upon the foregoing, the Board concludes that a chronic
pulmonary disability was nor incurred in or aggravated by active
service; that continuity of post service pulmonary symptomatology
has not been demonstrated; and that the record is devoid of
competent medical evidence which links or relates any current
pulmonary pathology to the claimant's period of active service.

The claimant has further contended that his current pulmonary
disability is residual to AO herbicide exposure or to asbestos
exposure while aboard ship in the offshore waters of the Republic
of Vietnam from 1965 to 1967. However, the record in this case is
devoid of competent medical evidence or opinion which links or
relates any current pulmonary disability in the claimant to AO
herbicide exposure or to asbestos exposure while on naval active
duty.

The Board further notes that COPD is not a presumptive disability
under the provisions of 38 U.S.C.A. 1110, 1101, 1112, 1113 (West
2000); 38 C.F.R. 3.307, 3.309(a), or 3.309(e) (2002).

As noted, one of the pieces of critical evidence that served to
reopen the claim was the March 1998 VA examination report
indicating that as of that time, (i.e., 30 years after service),
radiographic findings were consistent with a history of asbestos
exposure. However, although the examiner reported that the
appellant's VA claims folder had been reviewed, he further
indicated that "medical records from that period of time are not
available." The appellant's Social Security Administration file was
subsequently received and included more comprehensive records of
the development of the appellant's disorder, in particular the
October 1987 spontaneous pneumothorax.

Further, the March 1998 VA pulmonary examiner diagnosed chronic
obstructive pulmonary disease, recommending further chest X-rays
and pulmonary function tests (PFT's), and stated that if the PFT's
indicate restrictive disease, part of that would be due to the
obesity, although restrictive airway disease can be a result of
asbestosis as well, so that would be a probable contributing
factor. He further noted that if the chest X-ray showed plaques,
such would be indicative of asbestos. He

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expressed the opinion that the majority of the claimant's breathing
problem was from obstructive pulmonary disease which was not from
asbestos but was highly probably the result of his smoking history,
while stating that if the PFT's showed restrictive disease, it
would be his opinion that it was at least worsened by exposure to
asbestos. However, in the event, the PFT's did not disclose
restrictive disease in the claimant, but only the obstructive
disease associated with the claimant's smoking history. To the same
point, the October 2002 and January 2003 VA pulmonary examinations
disclosed no X-ray evidence of calcified pleural plaques and no
evidence of asbestosis, and PFT's on both occasions disclosed no
findings of restrictive disease in the claimant, but only the
severe obstructive disease which has been related to his smoking
history. The examiner stated that it was his medical opinion that
there was less than a 50 percent chance (i.e., less likely than
not) that the claimant's current respiratory symptoms were due to
inservice herbicide or asbestos exposure.

The Board notes the claimant's reluctance to accept the medical
evidence showing that his current COPD, which is his only diagnosed
pulmonary disability, is related to his long-term history of heavy
smoking, or his occupational exposure while working in a shipyard
as a sand blaster and painter. Nevertheless, the record is silent
for any opinion, other than the claimant's own lay opinion, which
would support a belief that his current respiratory symptoms are
the result of AO herbicide or asbestos exposure. Instead, the
record consistently shows that his respiratory symptoms are due to
COPD, which has been specifically related to his smoking history.

Based upon the foregoing, and for the reasons and bases stated, the
Board finds that service connection for a chronic pulmonary
disability as residual to AO herbicide or asbestos exposure during
active service is not warranted. Accordingly, the appeal for
service connection for a chronic pulmonary disability as residual
to AO herbicide or asbestos exposure is denied.

In reaching its decision, the Board has considered the doctrine of
reasonable doubt, however, as the evidence is not in equipoise, or
evenly balanced, but is against the

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claim, the doctrine is not for application. Gilbert v. Derwinski,
1 Vet. App. 49 (1990)/

ORDER

Service connection for a chronic pulmonary disability as residual
to AO herbicide exposure or asbestos exposure is denied. 

G.H. SHUFELT 
Veterans Law Judge, Board of Veterans' Appeals

IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you
what steps you can take if you disagree with our decision. We are
in the process of updating the form to reflect changes in the law
effective on December 27, 2001. See the Veterans Education and
Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976
(2001). In the meanwhile, please note these important corrections
to the advice in the form:

 These changes apply to the section entitled "Appeal to the United
States Court of Appeals for Veterans Claims." (1) A "Notice of
Disagreement filed on or after November 18, 1988" is no longer
required to appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General Counsel.

 In the section entitled "Representation before VA," filing a
"Notice of Disagreement with respect to the claim on or after
November 18, 1988" is no longer a condition for an attorney-at-law
or a VA accredited agent to charge you a fee for representing you.

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