Citation Nr: 1312173	
Decision Date: 04/12/13    Archive Date: 04/19/13

DOCKET NO.  07-27 575	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to service connection for a lung disorder, claimed as due to chemical burns.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel

INTRODUCTION

The Veteran had active military service from April 1970 to June 1990.

This appeal to the Board of Veterans' Appeals (Board) is from a December 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which, in pertinent part, denied the Veteran's claim for service connection for a lung condition that he alleges is from chemical burns.

In July 2006, as support for this claim, the Veteran testified at a hearing before a local Decision Review Officer (DRO).  Thereafter, in September 2008, another hearing was held at the RO, this time however before the undersigned Veterans Law Judge (VLJ) of the Board - commonly referred to as a Travel Board hearing.  Concerning that additional hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with this VA regulation.  These duties consist of:  (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked.  Here, during the hearing, the presiding VLJ explained the basis of the prior determination denying this claim and discussed the element of the claim that was lacking to substantiate entitlement to this claimed benefit.  In addition, the VLJ sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding that might tend to substantiate the claim.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise identified any prejudice in the conducting of that hearing.  To the contrary, the hearing focused on the elements necessary to substantiate the claim.  As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicating this claim based on the existing record.

During that Travel Board hearing, the Veteran also withdrew his appeal for service connection for posttraumatic stress disorder (PTSD).  38 C.F.R. § 20.204 (2012).

In a June 2010 decision, the Board reopened his claims for service connection for a psychiatric disorder other than PTSD and for right ear hearing loss because there was the required new and material evidence concerning these claims.  The Board then proceeded to grant these claims on their underling merits.  And in a rating decision later that same month, the RO implemented the Board's decision and the Veteran has not since in response contested the initial ratings or effective date assigned for these now service-connected disabilities.  Thus, these claims have been resolved and are no longer at issue in this appeal.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed separately to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date).

Also in that June 2010 decision, the Board remanded this remaining claim of entitlement to service connection for a lung condition to the RO via the Appeals Management Center (AMC) for further development and consideration, primarily to have the Veteran undergo a VA compensation examination for a medical nexus opinion regarding the etiology of his lung disorder, including especially in terms of the likelihood it is related or attributable to his military service or dates back to his service.  The additional development of this claim since has been completed, but the claim has continued to be denied, so it is again before the Board for further appellate consideration.


FINDING OF FACT

The preponderance of the evidence weighs against the finding that the Veteran has a lung disorder as a result or consequence of an incident during his military service, including especially on account of exposure to hazardous chemicals.



CONCLUSION OF LAW

A lung disorder is not shown to be due to disease or injury incurred in or aggravated by his military service, including chemical burns.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.300, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist the Claimant

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  Implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  A regulatory amendment effective for claims pending as of or filed after May 30, 2008, removed the so called "fourth" requirement that VA also specifically request that he provide any evidence in his possession pertaining to the claim.  73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1).


The Court (CAVC) further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that these VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim:  1) Veteran status, 2) existence of a disability, 3) a connection between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date for the award if service connection is granted.

Here, by way of VCAA notice correspondence dated in July 2005 and November 2007, the RO and AMC notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  The VCAA notice further indicated the joint obligation between VA and him in obtaining pertinent evidence and information, explaining that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records.  See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  The notice correspondence further provided an explanation of the "downstream" initial disability rating and effective date elements of a claim for service connection.

The initial VCAA notice correspondence in July 2005 was sent to the Veteran prior to the December 2005 rating decision on appeal, thus in accordance with the preferred preadjudicatory timing-of-notice standard.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  However, the November 2007 notice did not meet this timeliness requirement since it did not precede the initial adjudication of the claim.  This notwithstanding, he had opportunity to respond to the November 2007 VCAA correspondence before issuance of the most recent November 2011 supplemental statement of the case (SSOC) continuing the denial of his claim.  And if, for whatever reason, VCAA notice was not provided prior to the initial adjudication of a claim or, if provided, the notice was inadequate or incomplete, this timing error can be effectively rectified ("cured") by providing any necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended 

purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007).  See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  See also 38 C.F.R. § 20.1102 (harmless error).  Here, there has not been any such pleading or allegation, much less showing.

The RO/AMC furthermore has taken appropriate action to comply with the duty to assist the Veteran with this claim by obtaining extensive records of his VA and private outpatient treatment.  His complete service treatment records (STRs) and service personnel file also are of record.  Also, pursuant to the prior Board remand directive, a VA Compensation and Pension examination was provided on the determinative issue of the nature, extent and etiology of his claimed lung disorder, and particularly insofar as the likelihood it is related or attributable to the instance of hazardous chemical exposure during his military service.  In furtherance of the claim, he, too, has provided several personal lay statements.  As well, he testified at DRO and Travel Board hearings.  There is no indication otherwise of any further relevant evidence or information that has not yet been obtained.  The record as it stands includes sufficient competent evidence to decide the claim.  Under these circumstances, no further action is necessary to assist him with this claim.


He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  So, in summary, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran).  This is especially true in this instance, considering there already has been a remand of this claim.

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims files, both his physical claims file and electronic ("Virtual VA") claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Background and Analysis

Service connection is granted for current disability resulting from a disease contracted or an injury sustained in the line of duty during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).


Service connection on a direct-incurrence basis requires competent and credible evidence showing:  (1) the Veteran has the alleged disability or, at the very least, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Certain conditions are considered chronic (i.e., permanent), per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year after the Veteran's discharge from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

Also of application to claims for direct service connection is the principle that where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  On the other hand, continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  In this circumstance, a showing of continuity of symptomatology since service is required establish chronicity of disease or injury in service and in turn link current disability to servivce.  38 C.F.R. § 3.303(b).  However, the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) since has clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), that this notion of continuity of symptomatology is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a).

The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection.  In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit Court commented that competence to establish a diagnosis of a condition can exist when:  (1) a 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.

Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service (again, subject to the limitation that a "chronic" disease is involved as defined under 38 C.F.R. § 3.309(a)).  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

The Federal Circuit Court has further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition.  But as also observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  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.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).



"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology", again, assuming the condition at issue is identified as "chronic" under 38 C.F.R. § 3.309(a).  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once evidence is determined to be competent, however, the Board must additionally determine whether the evidence also is credible, as only then does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). 

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases 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).  To this end, 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 Federal Circuit Court, 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).  Moreover, the Court similarly 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 when he has testified.  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).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

In furtherance of this claim, the Veteran's contention is that his claimed lung condition stems from a chemical burn transpiring during his military service, due to an incident of hazardous exposure in a hangar breathing in dangerous fumes.  He recalls being medically evaluated soon thereafter with checking of his breathing and being informed that he had hurt his lungs.  He reportedly was told this would eventually heal, but according to him it never did.  He further recalls having a contemporaneous eye disorder for which he received continued treatment.

His service medical history, while not specifically documenting injury to his lungs, corroborates an incident of hazardous chemical exposure through documentation chronicling treatment for visual pathology.  A March 1981 clinical record indicates he presented with complaints of nausea and vertigo due to solvent inhalation and also eye irritation.  He further reported having irritation of both eyes and headaches.  He explained that he had walked into a hangar where the floors were being painted with plastic paint that had the primary volatile ingredient of a ketone.  He indicated he had pain pounding in the back of his head and that his eyes burned, but he denied shortness of breath or chest pain.  After physical examination, the diagnosis was inhalation of toxic substance, and chemical keratitis in both eyes.  

A contemporaneous optometry consultation for the burning sensation in his eyes resulted in an impression of chemical reaction.  There are several additional records of eye clinic consultations on file from the next few days for continued photophobia and irritation of both eyes.  But, as of March 1981, there are no further specific references in the STRs to that incident of hazardous exposure or any consequent disability (sequelae or chronic residuals).

Considering those findings in service, there is clearly evidence of potential relevant precipitating injury in service, such that a searching evaluation is warranted regarding the remaining key elements of the Veteran's claim.  In order to establish his entitlement to service connection, however, there also needs to be the required evidence of a current lung disorder and attribution of this disorder to that chemical burn injury in service.  See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Watson v. Brown, 4 Vet. App. 309, 314 (1992) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."); See also Duenas v. Principi, 18 Vet. App. 512, 516 (2004); Pond v. West, 12 Vet. App. 341, 346 (1999). 

The first and indeed perhaps most fundamental requirement for any service-connection claim is that the Veteran has to initially establish he has the claimed condition.  See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this minimum level of proof, there is no valid claim).  

In Brammer, the Court noted that Congress specifically had limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability.  See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists).  A "current disability" means a disability shown by competent evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997). 

VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997).  In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Federal Circuit Court clarified that this requirement of current disability is satisfied when the claimant has the disability at the time the claim or application for VA disability compensation is filed or during the pendency of the claim, and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim.

Here, though, having comprehensively reviewed the record at hand, including the additional evidence obtained on remand, the Board must deny service connection inasmuch as there is not the required competent and credible evidence showing that a current lung disorder indeed or even as likely as not originated from the incident of hazardous chemical exposure during the Veteran's military experience.  In so finding, the Board has been careful to review the evidence from service up until the present time period, including extensive records of VA outpatient treatment.  Whereas there is some indication of pathology suggestive of a present lung disability, the preponderance of the evidence nonetheless weighs against a causal connection between this present-day disability and the Veteran's service.  To begin with, the incident of chemical exposure appears to have been an isolated one, and one without any substantial residual condition for the remainder of his active duty service up through his separation in June 1990.  Though he had some further treatment for eye-related conditions (as he had even before the March 1981 incident), the STRs do not again identify chemical exposure as a likely causative factor.

As indicated, moreover, there was never any mention of lung or breathing problems throughout his service treatment history.  If fact, following his discharge from service, he did not ever report or have discovered any lung or breathing pathology, save for one or two isolated instances of chest congestion that, instead, were clearly attributed to a temporary upper respiratory infection (the common cold).  The Board notes this fact after considerable review of the voluminous post-service outpatient history.  Indeed, the first cognizable diagnosis of any lung disorder originates from his August 2010 VA Compensation and Pension examination, which he had some two decades after separating from service.  The lack of relevant symptomatology anywhere in proximity to his service weighs significantly against his claim.  In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  The Board therefore may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder).


Negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc).  Ultimately, though, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Here, aside from the lack of any relevant complaints for so long after service, there is the compelling unfavorable medical opinion of the August 2010 VA examiner on the subject of etiology that also tends to weigh against this claim.  The examiner initially diagnosed subjective complaints of shortness of breath, with moderate kyphoscoliosis and fibrocalcific changes in lung field.  Otherwise, there was a normal lung examination and the spirometer read as moderate restrictive without significant bronchodilation response.  It was noted that kyphoscoliosis was one of the causes of restrictive lung disease.  Having provided this diagnosis, the examiner then offered the following opinion on etiology:

After examining the claims file and the patient, it is this examiner's opinion, considering that he has a 14 pack year history of cigarette smoking and one exposure to chemicals that did not adversely affect his pulmonary function at the time... it is less likely that the one time exposure of toxic chemicals is the direct and proximal cause of his respiratory difficulty at this time.  Review of the claims file does not support an ongoing or chronic pulmonary condition.  


This opinion may be fairly deemed instructive, given that it is premised on an 
in-depth case history review of the claims file and well-supported rationale.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion); Boggs v. West, 11 Vet. App. 334, 340 (1998).  The VA examiner took into account the one incident of chemical exposure in service, so acknowledged and readily conceded that trauma occurred during the Veteran' service, but observed that it was an isolated incident with the lack of any obvious residuals for numerous years post-service, as well as the significant competing explanation of a history of chronic smoking as the more likely cause of any current lung impairment.  The Board is inclined to afford this opinion substantial probative weight, inasmuch as the findings and rationale closely parallel what the claims file objectively reveals regarding medical history and the lack thereof of a chronic condition during or since service.  The Board further observes to the extent the claimed condition may be attributable to a history of chronic smoking, that applicable VA law expressly precludes granting disability benefits due to the use of tobacco for claims, as here, filed on and after June 9, 1998.  See 38 U.S.C.A. §§ 1103, 1112, 1116; 38 C.F.R. § 3.300(a).  There likewise is no contrary opinion of record otherwise indicating or suggesting the Veteran's current lung condition is a service-related disability.

Nor for that matter can the Board accept his unsubstantiated lay opinion as the dispositive pronouncement on the subject of etiology.  Whereas one's lay observation cannot be outright discounted on the subject of causal nexus, this case presents a situation in which medical expertise is clearly needed to resolve the issue of causation given that the extensive time lapse between alleged injury in service and onset of disability, and the sheer complexity of the medical questions involved.  There resultantly needs to be supporting medical nexus evidence substantiating his claim, and there simply is not based on the existing record.


Accordingly, the Board is denying this claim for connection for a lung disorder, alleged to be the result or consequence of chemical burns.  The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

This claim of entitlement to service connection for a lung disorder, allegedly due to chemical burns, is denied.




____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs