Citation Nr: 0813186 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 05-36 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for residuals of a therapeutic abortion. 2. Entitlement to service connection for a respiratory disorder, claimed as emphysema and chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. R. Weaver INTRODUCTION The veteran served on active duty from October 1976 to March 1977, and from March 1978 to January 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In a letter submitted to the Board in July 2007, the veteran appeared to raise a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). As it has not yet been considered by the RO it is referred for appropriate action. FINDINGS OF FACT 1. A current gynecological disorder associated with a therapeutic abortion during service is not shown. 2. The evidence does not show that the veteran had full body exposure to mustard gas while on active duty. 3. Emphysema and COPD have been associated with a long history of cigarette smoking. CONCLUSIONS OF LAW 1. Residuals of a therapeutic abortion were not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 2. A respiratory disorder, claimed as emphysema and COPD, was not incurred in or aggravated by active duty. 38 U.S.C.A. § 1110, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.309, 3.316 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A claimant with active service may be granted service connection for disease or disability either incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Certain chronic diseases may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The disease entity for which service connection is sought must be "chronic" as opposed to merely "acute and transitory" in nature. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Where the fact of chronicity in service is not adequately supported a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). However, service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542 (1992)). The record before the Board contains service medical records and post-service medical records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143,148-49 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). Residuals of a Therapeutic Abortion The threshold matter that must be addressed in a claim of service connection is whether the claimed disability is present. Service medical records show that the veteran had a therapeutic abortion during service in April 1978 after she was given a rubella immunization without realizing that she was pregnant. Although a change in menstrual pattern and lower abdominal pain were noted on her December 1978 separation examination. Further, post-service medical records do not show chronic residuals related to the in-service abortion. While a private treatment record from November 1999 indicated that the veteran had undergone a hysterectomy, the evidence did not suggest that the procedure was in any way related to the in-service procedure. All other medical records are devoid of any permanent residual or chronic gynecological disorders. There cannot be a valid claim of service connection in the absence of proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The evidence of record does not show that the veteran has a current gynecological disorder that can be attributed to the in-service therapeutic abortion. Hence, service connection for residuals of a therapeutic abortion must be denied. Emphysema and COPD In a letter dated September 2004, the veteran claimed that she has emphysema and COPD as a result of being exposed to mustard gas several times while on active duty training at Ft. McClellan in July 1977 and during basic training. In her testimony in February 2006, she stated that she experienced shortness of breath following that exposure. Pursuant to 38 C.F.R. § 3.316, exposure to certain specified vesicant agents during active military service, together with the subsequent development of certain diseases, is sufficient to establish service connection, including full-body exposure to nitrogen or sulfur mustard or Lewisite during active military service together with the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma, or COPD. Service connection will not be established under this section if there is affirmative evidence that establishes a nonservice-related supervening condition or event was the cause of the claimed condition. In the present case, service connection is not warranted under 38 C.F.R. § 3.316 for two reasons. First, there are no medical or other records to corroborate the veteran's allegation that she was exposed to gas during active duty or basic training. While her service records show that she was tested in the gas chamber during basic training, there is no indication that the gas to which she was exposed was mustard gas. Moreover, her service medical records do not reflect that she received any treatment for exposure to gas any type of kind. Second, the medical evidence and the veteran's own testimony indicate that her respiratory conditions are the result of heavy smoking. She is shown to have a long history of heavy smoking before and after service, with use noted to be as heavy as three packs per day. The medical records show that she was repeatedly advised to stop smoking in order to alleviate her conditions. She testified in February 2006 that she: probably shouldn't even be claiming COPD or emphysema because it goes back like drinking the beer. I smoked to calm myself . . . So I mean I can't really say that, with the exception of the mustard gas, I can't say anything other about the COPD, because I've done that pretty much myself to calm down. Similarly, the medical evidence does not show that direct service connection is warranted. The veteran's enlistment examination dated July 1976 shows that she had chronic cough and shortness of breath due to smoking prior to service. Her service medical records are negative for a diagnosis of emphysema or COPD during service. And, neither her service records nor her separation examination indicated that her chronic cough and shortness of breath were aggravated by service. Post-service evidence does not reflect a diagnosis of COPD until November 1999, some 20 years after service. As such, the evidence does not support the claim based on continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). In addition to the documented post service treatment records, the evidence includes statements from the veteran asserting continuity of symptoms. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board, however, finds that the veteran's reported history of continued respiratory problems since active service is inconsistent with the other evidence of record. Indeed, while she stated that her disorder was related to service, the separation examination was absent of any complaints. Moreover, the post-service evidence does not reflect complaints of or treatment related to a respiratory disorder for years following active service. Therefore, the Board finds that the contentions of a respiratory disorder since service of less probative value on the issue of continuity. Next, service connection may be granted when a medical nexus is established between the claimed disorder and military service. However, a review of the record does not reflect competent evidence of a nexus between emphysema and COPD and service. With respect to both claims, the Board has also considered the veteran's statements and testimony at an RO hearing asserting a relationship between her current claims and active duty service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. Layno v. Brown, 6 Vet. App. at 470. As a lay person, however, she is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). In this case, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals than to the veteran's statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). The Board therefore concludes that a preponderance of the evidence establishes that a non service-related supervening condition was the cause of the veteran's emphysema and COPD and the competent and probative medical evidence of record militates against a finding that the veteran's conditions had there onset in service or preexisted service and was permanently worsened therein. Hence, the claim must be denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in March 2004 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed her of what evidence was required to substantiate the claims and of her and VA's respective duties for obtaining evidence. She was also asked to submit evidence and/or information in her possession to the RO. There is no allegation from the veteran that she has any evidence in her possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disabilities on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claims for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are moot. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him or her in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records, private medical records, and records from the Social Security Administration. In addition, she has provided Internet articles and a letter from the Center for Disease Control regarding rubella vaccinations. Further, she was provided an opportunity to set forth her contentions during the hearing before the RO. Significantly, neither the veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. With respect to the claim for a respiratory disorder, the Board finds that a remand for a VA examination is not in order. Significantly, there is no medical evidence suggesting a nexus. Further, the veteran's statements as to continuity of symptomatology is found to lack credibility. Moreover, the Board finds that the medical evidence of record is sufficient to make a decision on the claim. Therefore, remand for a VA examination is not warranted. As to the gynecological claim, no current disorder is shown, therefore a remand is not needed. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for residuals of a therapeutic abortion is denied. Service connection for emphysema and COPD denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs