Citation Nr: 1300103 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 07-06 252A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a lung disorder due to lead poisoning. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife. ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1957 to May 1961. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in relevant part, declined to reopen the Veteran's service connection claim on appeal. In August 2009, the Board remanded the Veteran's claim on appeal, together with other service connection claims, to the RO via the Appeals Management Center (AMC), in Washington, DC, to comply with notification requirements and to request further evidentiary development. In June 2011, the Board again remanded these claims in order to schedule him for a hearing before the Board in light of the fact that his June 2009 hearing was conducted by a Veterans Law Judge (VLJ) who was no longer employed by the Board. In a March 2012 decision, the Board denied the Veteran's other pending service connection claims, and again remanded his current lung disorder claim on appeal for still further evidentiary development, including most especially affording him a new and contemporaneous VA examination to determine the nature and etiology of his claimed lung disability. As discussed herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the August 2009, June 2011, and March 2012 Board remand directives and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran and his wife, M. R., testified at a hearing before the undersigned in January 2012. A transcript of that hearing is of record. Additionally, a transcript of his June 2009 hearing before the Board VLJ who is no longer employed by the Board is of record. The issues of entitlement to service connection for a neurological disorder, for vascular dementia, for an intestinal disorder, for a renal disease, and for an intracranial disorder, all as due to lead poison and/or lead exposure, are raised by the record and were previously referred to the Agency of Jurisdiction (AOJ) in the Board's prior March 2012 decision. It appears, however, that these issues still have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT There is no competent evidence of record to show that the Veteran has a current lung disorder that is etiologically related to lead poisoning or otherwise etiologically related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lung disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b) (2012). This notice must be provided prior to an initial unfavorable decision on the claim by the Agency of Original Jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, that will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). An RO letter dated in August 2004 informed the Veteran of all elements required by 38 C.F.R. § 3.159(b). In light of the denial of his service connection claim for a lung disorder, no disability rating or effective date can be assigned, so there can be no possibility of prejudice to the Veteran under the holding in Dingess. Nonetheless, in March 2006, the RO provided the Veteran with a letter that informed him of how disability evaluations and effective dates are assigned per the Court's holding in Dingess. Ideally, any required VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If for whatever reason it is not, or the provided notice is inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), so that the intended purpose of the notice is not frustrated and the Veteran is given an 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). Here, after the issuance of the March 2006 notice, the Veteran's claim on appeal was readjudicated in a February 2007 SOC and a September 2008 SSOC. Following the Board's August 2009 remand, the RO/AMC provided another notice letter consistent with the Court's holding in Dingess, in August 2010. His appeal was then readjudicated in SSOCs dated in March 2011 and September 2012. Regarding the duty to assist, treatment records, including pertinent VA and private medical records and the Veteran's records pertaining to his claim for benefits administered by the Social Security Administration (SSA), have been obtained to the extent possible. The Board acknowledges that, unfortunately, the Veteran's service treatment records (STRs) and personnel records (SPRs) could not be obtained, as they are unavailable because they were likely destroyed in a fire at the National Personnel Records Center (NPRC) in 1973. Though further efforts were made to locate additional service records, it is now clear that further efforts to obtain service records would be futile. Accordingly, in proceeding with appellate review, the Board is mindful that when a veteran's records have been lost or are otherwise unavailable, the Board has a heightened duty to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In addition to obtaining relevant private and VA treatment records, the Veteran was afforded relevant VA examinations in August 2007 and July 2012. The 2012 VA examination report is responsive to the determinative questions regarding the etiology of the Veteran's claimed lung disorder. Accordingly, VA's duty to provide an adequate VA examination has been met. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, as noted, the Board is satisfied that the RO/AMC substantially complied with the Board's August 2009, June 2011, and March 2012 remand directives with respect to the Veteran's claim on appeal. See Dyment, 13 Vet. App. at 146-47; Stegall, 11 Vet. App. 268. The Board notes that in the August 2009 remand, it directed the RO/AMC to ensure the Veteran had been provided adequate VCAA notice, to enter a formal determination as to the unavailability of his STRs and SPRs, and to obtain his SSA records; in the June 2011 remand, the Board directed the RO/AMC to schedule the Veteran for a requested hearing before a Board Veterans Law Judge (VLJ); and in the March 2012 remand, the Board directed the RO/AMC to obtain outstanding VA and private treatment records, and to schedule the Veteran for another VA examination to determine the nature and etiology of his claimed lung disorder. In this regard, the RO/AMC provided the Veteran with additional VCAA notice in August 2010, obtained copies of his records pertaining to his application for SSA benefits, and made a formal finding with regard to the unavailability of his service records and provided him with notice of that finding in December 2009. He was afforded his new requested hearing in January 2012, and finally, the RO/AMC obtained his VA treatment records dated through July 2012 and he was afforded an adequate VA examination in July 2012. The duty to assist has, therefore, been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claims. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating his service connection claim on appeal. II. Service Connection The Veteran attributes his current lung disorder to lead poisoning that resulted from his duties as a petroleum specialist during his active service, including while maintaining an inventory of fuel; transporting hydraulic fluid, engine oil, and diesel fuel; refueling small aircraft and jet aircraft; and dispensing diesel fuel to service personnel. A. Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr, 21 Vet. App. at 307; see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). In making all determinations, the Board must fully consider the lay assertions of record. Davidson, 581 F.3d 1313. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). The Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Analysis With respect to whether the Veteran's satisfied the first required element to establish service connection for a lung disorder, by showing a current disability, the Board observes that during his most recent July 2012 VA examination, the examiner diagnosed chronic obstructive pulmonary disorder (COPD), and traumatic, left-sided pneumothorax, noted as due to a motor vehicle accident. He was additionally diagnosed with COPD during his August 2007 VA examination. Based on these diagnoses, the first required element to establish service connection for a lung disorder has been met. See Davidson, supra. With respect to the second required element, an in-service incurrence of a disease, event, or injury, the Board again observes that VA has attempted to obtain his STRs and SPRs. During the pendency of his claim, the National Personnel Records Center (NPRC) informed VA in December 2005 that the Veteran's service personnel records and service treatment records were not in its files, that they may have been destroyed in a July 1973 fire, and that they cannot be wholly reconstructed. Subsequently, in December 2009, in compliance with a Board remand directive, the AOJ issued a Formal Finding on the Unavailability of Service Records, which discussed the steps the AOJ had taken to attempt to obtain the Veteran's service treatment records and, as incorporated by reference to pertinent requests, his service personnel records. In the December 2009 Formal Finding, the AOJ determined that the Veteran's service records were unavailable for review and that all procedures to obtain such records had been correctly followed, all efforts had been exhausted, and further attempts would be futile. The Veteran was advised of the unavailability of such records in a December 2009 letter and was invited to submit any records in his possession. As such, the Board finds that the AOJ correctly followed the procedures prescribed in 38 C.F.R. § 3.159(c) in regard to requests for records from Federal facilities. As no service records are available for review, the Board has a heightened duty to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. See O'Hare, 1 Vet. App. at 367; Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board must point out, however, that the O'Hare precedent does not raise a presumption that the missing service records would, if they still existed, necessarily support the Veteran's claim. Additionally, case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt rule, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). In the instant appeal, the Veteran has provided abundant and credible evidence, including his and his wife's testimony, indicating that, with a noted military occupational specialty (MOS) as a petroleum storage operator, he was frequently responsible for storing fuel and dispensing fuel tanks. At his January 2012 Board hearing, he specifically testified regarding an incident during his service where a fuel tanker began spilling fuel and he and other servicemen responded by transferring the fuel to another tanker. He noted that a strong wind came up and that the fuel sprayed out and soaking his clothes. He further stated that he had to wear his fuel-soaked clothes for more than 24 hours because his unit was travelling at that time, notwithstanding the fact that he had been trained to bathe with water immediately after exposure to fuel. He additionally testified that he inhaled fuel fumes in service, including from the metal aviation fuel with which he refueled aircraft. He noted that he pumped the fuel into the airplanes by hand because it was too volatile to refuel the airplanes by other means. He further noted that he did not have any masks or other safety devices when dispensing the fuel. He also noted that after service his only interaction with fuel was fueling his car with gasoline. As noted in the Board's prior March 2012 decision, the Veteran is competent to observe his symptomatology and the fact that he was exposed to leaded fuel in service, including by breathing fumes without safety devices and by wearing fuel-soaked clothes for more than 24 hours. In this regard, lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of personal knowledge, but a lay witness is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno, 6 Vet. App. at 469-70. Lay evidence may also be competent to establish medical etiology or nexus. Davidson, 581 F.3d at 1316. Here, the Board finds the Veteran's reports and testimony to be credible and consistent with his MOS and the era of his service. Accordingly, the Board finds that the evidence establishes that the Veteran was exposed to lead during his active service as he has credibly testified. Given the foregoing, the Board is left to consider the final required element to establish service connection for a lung disorder, a nexus between his current lung disorder diagnoses and his in-service lead exposure. The Board previously noted in the March 2012 decision that questions pertaining to how long the lead remained in the Veteran's system and what effects it had on claimed disorders were complex in nature, and therefore not determinable through supporting lay statements from the Veteran and others. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The same is true here. The Veteran has claimed that excessive exposure to fuel containing lead, and alleged resultant lead poisoning, has lead to the development of his claimed lung disorder. The earliest medical evidence of record showing treatment for or complaints of any respiratory condition is found in private treatment records dated in an April 1971 hospital report indicating that a chest x-ray showed apical pleural thickening bilaterally and a nodular density overlying the first left rib anteriorly. A chest x-ray dated in May 2012 again showed bilateral apical pleural thickening. A review of the Veteran's SSA records revealed that in approximately June 1982, he was involved in a motor vehicle accident. He suffered broken ribs and a collapsed left lung. X-rays taken in July 1982 revealed bullous emphysema of the right upper lobe with probable bullous changes in the left apical region. Stranded infiltrates were noted extending to the posterior gutter on the left, compatible with atelectatic changes. Interstitial emphysema was also noted along the left lateral chest wall. Later private treatment records from Pulmonary Consultants of San Antonio reveal that the Veteran began receiving pulmonary treatment at that facility in May 2007. At that time, he was noted to have a diagnosis of COPD and shortness of breath. He continued to receive pulmonary treatment through April 2012. A February 2010 x-ray showed a small amount of linear subsegmental atelectasis (partial collapse of the lung) in both lung bases. During the Veteran's aforementioned August 2007 VA examination, the VA examiner, after diagnosing his COPD, indicated that he was unaware that lead in aviation fuel caused respiratory disease, and since the Veteran's respiratory disease developed 10 months prior to his VA examination, as he reported during the examination, it was very doubtful that there was any connection between his respiratory disease and his exposure to lead in aviation fuel. Because it was unclear, however, whether the August 2007 VA examiner did not have the expertise to determine whether exposure to lead in aviation fuel caused respiratory disease, where he indicated that he was unaware of such an effect, the Board remanded the Veteran's claim for yet an additional VA examination to obtain further medical comment from a medical expert in lung disorders with respect to the determinative issue of the etiology of the Veteran's claimed lung disorder. During the subsequent July 2012 VA examination, the Veteran reported that he began noting problems with shortness of breath in about 2006. He was at that time evaluated and found to have COPD. He reported that he believed that his COPD was the result of lead poisoning. The VA examiner noted that the Veteran was a smoker for about 40 years, smoking one pack per day. The examiner additionally noted that the Veteran was found to be purified protein derivative positive in 1971, with negative chest x-ray for active tuberculosis disease, status post Isoniazid treatment for prophylaxis. The examiner also noted the Veteran's traumatic left side pneumothorax in 1982, secondary to his motor vehicle accident. Pertaining to the Veteran's lung disorder diagnoses, the examiner indicated that the claimed condition was less likely than not incurred in or caused by his claimed in-service injury, event, or illness, in this case his conceded exposure to lead in aviation fuel and claimed associated lead poisoning. In providing this opinion, the examiner indicated that after conducting an online review on the "Up to Date" website, a purportedly well-known and reliable source and an evidence-based knowledge system for medical information, there were no evidence-based medical studies that has established lead poisoning as a risk factor for developing COPD or obstructive sleep apnea. The examiner further indicated that it was more probable that the Veteran's COPD was associated with his long term use of tobacco. Based on the VA examiner's fully informed, well-reasoned, and fully articulated opinion, the Board cannot make a finding that the Veteran has a diagnosed lung disorder that is etiologically related to his active service. There is no competent evidence of record that shows that the Veteran has a lung disorder that is associated with exposure to lead in aviation fuel, even as a result of inhaling fuel fumes. Rather, the medical evidence of record, including the opinions of two VA examiners, indicates that there is no medical research to support such a correlation. Moreover, the July 2012 VA examiner indicated that he performed research on a reliable medical website, no medical data could be found to support the Veteran's contentions. He further attributed the Veteran's COPD instead to his many years of tobacco use. The Board finds that the 2012 VA examiner's opinion is of far more probative value than the Veteran's bare lay assertions as to the etiology of his claimed lung disorder. While the Board does not doubt the sincerity of the Veteran's belief that he contracted a lung disorder as a result of exposure to lead in aviation fuel during his active service, as a lay person, he simply is not competent to establish a medical etiology merely through his own assertions, because such matters require medical expertise as it involves a complex medical matter. See 38 C.F.R. § 3.159(a)(1) (2012) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions); see also Duenas v. Principi, 18 Vet. App. 512, 520 (2004). The evidence of record shows, rather, that the Veteran's COPD was incurred many years after his service, and as a result of many years of tobacco use. Additionally, his left-sided pneumothorax has been shown to be only attributable to his motor vehicle accident, also many years after his service. In sum, while the Veteran has been diagnosed with current lung disorders, and while his exposure to lead in aviation fuel during his active service has been conceded, there is no medical evidence of record that can serve to relate any current lung disorder to his in-service exposure to lead in aviation fuel. And, although the Veteran has not made any contention regarding any other in-service disease, event, or injury that may have caused or led to the development of his claimed lung disorder, the Board further observes that there is similarly no evidence of record to support any such contention. For the reasons and bases provided above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a lung disorder. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The evidence in this case is not so evenly balanced so as to allow for application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002). Accordingly, the Veteran's claim for service connection for a lung disorder due to lead poisoning must be denied. ORDER Entitlement to service connection for a lung disorder is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs