Citation Nr: 1313258	
Decision Date: 04/22/13    Archive Date: 05/03/13

DOCKET NO. 09-28 172	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for chronic obstructive pulmonary disease (COPD) to include as due to tear gas exposure. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Veteran and Spouse


ATTORNEY FOR THE BOARD

C. Bruce, Counsel

INTRODUCTION

The Veteran served on active duty from October 1969 to October 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The Virtual VA paperless claims processing system was reviewed.

The Veteran testified at a Travel Board hearing before the undersigned in December 2012. The transcript of that hearing is of record and was reviewed.


FINDINGS OF FACT

1. The Veteran has been diagnosed with severe chronic obstructive pulmonary disease (COPD).

2. The Veteran is competent to report the circumstances of his service and his symptoms.

3. The report of a September 2008 VA respiratory examination is competent evidence that the Veteran does not have severe COPD as the result of his active duty service to include exposure to tear gas.

4. The preponderance of the evidence is against a finding that the Veteran has COPD due to any incident of his active duty service, to include exposure to tear gas.






CONCLUSION OF LAW

The criteria for entitlement to service connection for a lung disorder, to include as due to tear gas exposure are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the issues on appeal. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

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

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

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

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

Duties to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 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 Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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)(1).

An August 2006 letter initially explained the evidence necessary to substantiate a claim for service connection. The letter also notified him how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). As VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, since the case was readjudicated thereafter, there has been no prejudice to the Veteran in this regard. See Prickett v. Nicholson, 20 Vet.App. 370, 376 (2006).


VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The claims file contains service treatment records and reports of post-service medical treatment and a report of a September 2008 VA respiratory examination, to include an October 2008 addendum opinion. VA has a duty to ensure the resulting medical opinions are adequate. Barr v. Nicholson, 21 Vet.App.303, 312 (2007). The September 2008 examination report reflects review of the claims file, and interview with, and examination of, the Veteran. The examination is adequate to decide this claim.

With regard to the December 2012 Travel Board hearing, in Bryant v. Shinseki, 23 Vet App 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). At the December 2012 hearing, the Veterans Law Judge and representative for the Veteran outlined the service connection issue on appeal and engaged in a colloquy with the Veteran as to substantiation of the claim. This hearing was fully adequate.

The applicable duties to notify and assist have been satisfied. There is sufficient evidence on file in order to decide this appeal and the Veteran has been given ample opportunity to present evidence and argument in support of his claims. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues has been obtained and the case is ready for appellate review. See 38 C.F.R. § 3.103 (2012). 



Service Connection

The Veteran seeks service connection for chronic obstructive pulmonary disease (COPD) resulting from repeated exposure to tear gas in service. There is no competent, probative evidence supporting his claim. The Board must deny his claim. 38 C.F.R. § 3.102.

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372  (Fed. Cir. 2007).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). As COPD is not a chronic disease under § 3.309(a), the Court finds as a matter of law that continuity of symptomatology may not serve in lieu of medical nexus. 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). 

The Veteran testified at his December 2012 Travel Board hearing that during basic training he was repeatedly exposed to tear gas during a training exercise on how to use a gas mask. The training also involved removing the gas mask and saying a few words (name, rank, and serial number) before being allowed to exit the gas chamber. The Veteran has stated on multiple occasions that he was unable to tolerate the fumes from the tear gas, and after initially exiting the chamber, was "forced" to go back in for as many as six times without his gas mask. The final time he was forced back into the chamber, the Veteran alleges that the officers present sat on him to make him stay in the chamber long enough to reach the required time. 

The Veteran further alleges that after this episode, he was order to immediately report to physical training. He claims he tried to run but immediately became sick: coughing, gagging, and choking. He reported at various times, including at his December 2012 Travel Board hearing, that he was taken to the hospital and admitted for "exposure to tear gas." He has further alleged that there is no record of the exposure because he had to leave the hospital before getting properly treated. 

The Veteran further alleged during his hearing that he had another soldier report for the testing because he was unable to stand being in the hospital any longer. His reason for being so distraught with staying any longer was that the man he was sharing a room with died during night from spinal meningitis and had been left in the room for hours. The Veteran felt he had to leave the hospital. 

The Veteran's original claim did not state that he was hospitalized, but rather that he had to be carried back to his barracks following the incident and was unable to do anything for several days. He reported he was not allowed to go to sick bay. He claims he has had breathing problems since the exposure incident. The Veteran also stated in his VA Form 9, substantive appeal, and at his December 2012 Travel Board hearing that he was not given an exit examination, that his forms were merely "signed off" on without any physical, or chest x-rays.

The Veteran's account is wholly incredible. Firstly, his service treatment records reflect that both his October 1969 entrance examination and September 1971 exit examination listed his lungs as normal. The exit examination did note the Veteran's "vitals" as well as other conditions, but did not note any abnormality with the lungs. In November 1969, the Veteran was admitted to the hospital for two days for an upper respiratory infection and he exhibited a temperature of more than 100 degrees. However, there is no other mention in the record of any treatment regarding the lungs and the Veteran apparently completed his entire three years of active service without respiratory difficulty. Finally, a July 1971 chest x-ray associated with separation noted that the Veteran's lungs were normal. 

Relevant post service medical treatment records began with a February 1972 chest x-ray that noted that the Veteran's heart and lungs were within normal limits. A November 1997 chest x-ray taken at Caldwell Memorial Hospital revealed an essentially negative chest. 

The Veteran initially sought private treatment for his lung disorder in November 2003 and is currently diagnosed with severe COPD. A November 2003 private treatment record from Dr. J.R.T. noted that the Veteran worked around toxic fumes and chemicals and was, in particular, exposed to fumes from a burning PVC pipe. A December 2003 treatment record from that same private doctor noted that the Veteran had a remote history of fume and smoke inhalation in the armed services, but also that he smoked a few packs of cigarettes a day for many years. 

A May 2006 private treatment report noted that the Veteran discussed his military experience but stated he was not completely free to talk about it because he alleged that he was in "some kind of special forces." The Veteran reported being placed in rooms with gases being released, including tear gas, and being forced to take his gas mask off and find his way out. He reported that this occurred on several occasions. The private physician then noted that the Veteran denied any other exposures, chemicals, etc., but was not at all forth coming with the information. 

A May 2006 letter from the Veteran's private treating physician, Dr. J.R.T., stated that given the Veteran's stories of multiple exposures to tear gas, without any protection along with his expiratory symptoms that he had afterwards, there was indeed a possibility that the Veteran developed some pulmonary problems related to that exposure. (emphasis added). Dr J.R.T. further added that "it was certainly possible that [the Veteran] may have some kind of chronic scarring and irritation related his exposure in the service as well as contributions made by [his] long-term tobacco use." Dr. J.R.T. provided another letter in June 2006 stating that the Veteran had a diagnosis of chronic lung disease associated with tobacco abuse, with a bronchospastic component. The private physician then stated that a component of the disease may also be associated with heavy exposure to tear gas and other toxins while serving in the armed forces. 

However, there is no evidence whatsoever that the physicians were aware in any respect of the facts of the Veteran's military training or duties such as now evidenced by the record. Reonal v. Brown, 5 Vet.App. 458 (1993); see also Elkins v. Brown, 5 Vet.App. 474 (1993); Swann v. Brown, 5 Vet.App. 229 (1993) (for the essential holding that medical opinions can be no better than the facts alleged by the appellant."). 

An August 2007 VA addendum note from the Veteran's VA treating physician noted that the Veteran had stated that he was exposed to tear gas in 1969 and had developed breathing problems from that time forward. The VA treating physician stated it was possible current breathing problems could in part be related from this exposure. 

An October 2007 private treatment report from Caldwell Memorial Hospital noted that the Veteran stated he had noticed respiratory difficulty and bronchospasms after alleging that he was exposed to heavy amounts of tear gas in an "experiment" while in service. The examiner noted that the Veteran had been smoking since that time as well. The examiner offered the opinion that exposure to the tear gas could have initiated some kind of bronchospastic lung disease, and that given the Veteran had not been smoking significantly at that time it was unlikely that tobacco use caused his lung disease. The examiner then noted, however, that tobacco use contributed to the progression of the disease. 

The Veteran was afforded a VA examination in September 2008. The Veteran reported that after being unable to tolerate tear gas exposure without his gas mask, he was forcibly put back in the gas chamber and held down without a mask. He had breathing problems after that and was taken by ambulance to the base hospital where he was hospitalized for two days. The examiner diagnosed the Veteran with COPD. The examiner opined that the Veteran's COPD was at least as likely as not due in part to prolonged tear gas exposure in a gas chamber during basic training that required hospitalization. The examiner also opined that it was at least as likely as not that the Veteran's COPD was due in part to a 33 year tobacco abuse problem. 

An addendum opinion was sought to clarify the September 2008 VA examiner's opinion given his having attributed the Veteran's COPD to two different causes. In the request for an addendum clarifying opinion, it was noted that the Veteran's service treatment records only noted treatment for an upper respiratory infection and not for tear gas exposure. The examiner, in the October 2008 addendum opinion, again reviewed the Veteran's claims file and determined that the Veteran's 33 year history of smoking was, more likely than not, the main cause of his COPD. 

The Veteran provided several statements in support from current friends, as well as a statement from a fellow soldier. The buddy statement noted that the Veteran had trouble tolerating the tear gas test and kept having to step out. The service colleague alleged that military authorities attempted to force the Veteran through the protective mask exercise on a number of occasions. He further noted that the Veteran ran during physical training following the test and the Veteran had shortness of breath such that he was close to fainting, and finally alleged that military authorities summoned an ambulance. Other statements in support indicated that the Veteran has had constant shortness of breath since the early 1970s.

The record also indicated that the Veteran had an extensive history of tobacco use. An April 2004 private treatment record indicated that the Veteran was having shortness of breath and smelled of tobacco. A May 2004 private treatment record indicated that the Veteran reported difficulty breathing and that he was trying to curtail his smoking habit. A July 2004 VA treatment record indicated that the Veteran smoked 1 pack per day, but was trying to quit. An August 16, 2004 VA primary care nurse's treatment report indicated that the Veteran had quit smoking 2-3 months prior; however, a VA primary care physician's treatment report dated that same day indicated that the Veteran was still smoking 1-2 cigarettes a day. VA treatment records dating between February 2005 and February 2006 have varying reports of smoking frequency. Both a February 2006 and a May 2006 private treatment record indicated that the Veteran smelled of tobacco. At his December 2012 hearing the Veteran stated that the record should reflect that he smoked only 1-2 packs per week, rather than stating that he smoked 1-2 packs per day. As previously noted, the November 2003 private treatment record noted the Veteran had smoked a few packs of cigarettes per day for many years.

The record contains various examples of medical opinions and lay statements that support, at least in part, the Veteran's contentions that his lung condition is related to his exposure to tear gas while in the military. However, each of these statements is based on the Veteran's recollections which lack credibility. While the law provides that it is error to reject a medical opinion solely on the basis that the medical opinion was based on a history given by the Veteran, the Board finds that the medical opinions in support of the claim are not probative because they do not consider that the complete absence of in-service documentation, the Veteran's post-service history, and the Veteran's extensive smoking history. 

Most critically, these opinions appear to be based in whole upon the Veteran's allegation of what can only be termed repeated instances by several military command authorities of maltreatment of a subordinate in violation of Article 93 of the Uniform Code of Military Justice. Without further explanation, the Veteran and his colleague have essentially alleged that the Veteran was specifically singled out for such abuse in basic training for no apparent reason, other than to qualify him in the use of his protective mask. Had the Veteran had such difficulty in what is typically referred to in military parlance as the gas-chamber-confidence-course, he would more likely have been released from service, after attempts at being retrained or recycled. 

Apart from the Veteran's patent incredibility, there are various contradictory statements in the record including the statement associated with his initial claim which stated that while the Veteran became ill after being exposed to tear gas, he was not allowed to seek medical attention. Later statements, including that of the Veteran's fellow serviceman, all report that the Veteran was sick enough following the incident to require medical attention by an ambulance and hospital care. The record only notes one hospital stay and it was for an upper respiratory infection coupled with a fever. There was nothing in the record to indicate that the Veteran had been exposed to or was being treated for tear gas exposure. 

Additionally, there are contradictory statements regarding the number of times that the Veteran was forced to enter the gas chamber. The Veteran initially stated that he was forced to re-enter the chamber at least 6 times, but only during that one training exercise. The Veteran's fellow soldier who provided a statement of support stated that the Veteran was only sent through a couple of times. The Veteran has reported that his exposure was an experiment, that the exposure was prolonged, and that there were multiple occasions of exposures. At best, the Veteran's recollections lack clarity.

The Veteran also alleged that he did not have an exit examination prior to his separation from service. However, he is also patently incredible in this report. There is an exit examination of record that notes not only the Veteran's "vitals" but also other conditions. It is signed by medical officers of the U.S. Army who are specifically tasked with reporting what the examination report reflects. Moreover, apart from demonstrating that the Veteran is wholly untruthful in this attempt to gain compensation, these medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).

Contradictions of the Veteran's account indeed abound continue in the post-service treatment records. When the Veteran initially sought treatment in November 2003, he reported to his private examiner, Dr. J.R.T., that he worked around toxic fumes and chemicals and had, in particular, been exposed to burning PVC pipe. In a May 2006 private treatment report the Veteran denied exposure to any chemicals other than the tear gas in service. 

Finally, the records regarding the frequency and duration of the Veteran's smoking habit are unclear. The Veteran stated at the time of the November 2003 private treatment record that he smoked a few packs per day for many years. At his December 2012 Travel Board hearing, the Veteran reported that the record should reflect that he smoked 1-2 packs per week, not 1-2 packs per day. In treatment records dating between April 2004 and May 2006, the Veteran provides various statements regarding his contemporaneous smoking habits. Again, at the very least his statements lack clarity. 

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 

The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In addition, the U.S. Court of Appeals for Veterans Claims (Court) held that the credibility of lay evidence can be affected and even impeached by factors such as inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record. See Macarubbo v. Gober, 10 Vet. App. 388 (1997).

The Veteran's contends that his COPD is related to tear gas exposure during active duty; however, it is initially noted that the record is silent with regard to post-service diagnosis of any lung disorder until November 2003. The Board notes that the initial diagnosis of COPD was almost 32 years after the Veteran's separation from active duty service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim). 

With regard to continuity of symptomatology, symptoms as opposed to treatment are of primary interest and the Veteran is competent to observe breathing problems during and post service and that observation need not be recorded. However, while the Veteran is competent to provide an account of continuous symptoms he is wholly incredible. There is no medical evidence of record that the Veteran sought medical care for COPD prior to 2003. 

Laypersons are generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). As a lay person, the Veteran is not competent to provide evidence as to complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, his opinion is not competent with regard to an assessment as to etiology. With regard to the Veteran's claim for COPD the Board finds that the lay statements as to a nexus are outweighed by the probative medical evidence of record which does not relate the Veteran's COPD to any incident of the Veteran's military service. 

The Board has considered the opinions provided by Dr. J.R.T., the Veteran's treating VA physician, and a private examiner from Caldwell Memorial Hospital; however, as the medical opinions that support the Veteran's contentions are all based on his statements, the Board finds that the opinions are of little probative value. The opinions all note that heavy or prolonged exposure to tear gas could have lead to COPD. There is no probative evidence that the Veteran had heavy or prolonged exposure to tear gas. Even still, the opinions all contain words of speculation such as "possible" and "maybe." The Court has held that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).

The October 2008 VA examiner's addendum opinion is the most probative medical evidence addressing the etiology of the Veteran's disorder, because it is clearly factually informed, medically based and responsive to this inquiry. The initial September 2008 report revealed that the examiner conducted a thorough examination of the Veteran and provided a full and complete rationale for his opinion. The initial opinion provided did, in part, attribute the Veteran's COPD to his tear gas exposure, but again this opinion was based on the Veteran's inaccurate statements. 

The October 2008 opinion was based on a review of the file with particular attention paid to the lack of treatment or complaint of tear gas exposure in service. The examiner again reviewed the Veteran's medical history and determined that his COPD was primarily the result of a more than 30 year history of smoking. As held by the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). As the VA examiner's October 2008 addendum opinion is based upon an evaluation of the Veteran and review of the claims folder, to include the aforementioned conflicting opinions, the Board finds that it is entitled to the most weight regarding the etiology of the Veteran's COPD. The opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995).

Most critically, the Veteran's essential contention of a nexus between the in-service tear gas exposure and his current diagnosis of COPD has been fully investigated as mandated by the Court's decision in Jandreau. The Board finds the evidence against the claim to be more probative than the evidence in favor of the claim. Therefore, the Veteran's claim for service connection for COPD must be denied. 


ORDER

Service connection for a lung disorder, specifically COPD, to include as due to tear gas is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs