Citation Nr: 1316304 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 13-06 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for respiratory disability, to include Chronic Obstructive Pulmonary Disease (hereinafter COPD). REPRESENTATION Appellant represented by: Jaya Shurtliff, Attorney-At-Law ATTORNEY FOR THE BOARD R. Anderson, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1942 to November 1945. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in October 2012, a statement of the case was issued in December 2012, and a substantive appeal was received in March 2013 (and was accepted as timely). The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present, there are no additional documents pertinent to this appeal in Virtual VA. 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). FINDINGS OF FACT The Veteran's current respiratory disability, including COPD, was not manifested in service or for many years thereafter, not is any current respiratory disability, including COPD, otherwise causally related to service, to include claimed chemical/Mustard gas exposure therein. CONCLUSION OF LAW A respiratory disability, to include COPD, was not incurred in or aggravated by service, and may not be presumed to have been caused by service, to include claimed chemical/mustard gas exposure. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.316 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Duty to Notify After reviewing the claims folder, the Board finds that the Veteran has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefit currently sought. In a letter dated in December 2010, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefit sought. In addition, he was advised of the types of evidence VA would assist him in obtaining, as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio, 16 Vet. App. 183; Charles v. Principi, 16 Vet. App. 370 (2002). This letter was sent to the Veteran prior to the October 2011 RO rating decision giving rise to this appeal; therefore, the VCAA notice in this case was timely. See Pelegrini, 18 Vet. App. 112. The Veteran has received all 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. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Further, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Duty to Assist VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board notes that some of the Veteran's service treatment records (STRs) or personnel records (it is unclear which) may have been stored and apparently destroyed in a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. In cases in which the Veteran's service records are missing and are presumed to have been destroyed in the July 1973 fire at the NPRC, the VA has a heightened duty to explain its findings and conclusions. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The claims file contains the Veteran's contentions, as well as all available STRs, VA and private treatment records. The Veteran was afforded a VA examination in April 2011 to determine the etiology of his current respiratory disability. All pertinent VA examination reports are of record and contain sufficiently specific clinical findings and informed discussion of the pertinent features of the disability on appeal to provide probative medical evidence adequately addressing the issue decided below. Significantly, neither the Veteran nor his representative have identified, and the record does not otherwise indicate, any additional existing evidence that is outstanding or necessary for a fair adjudication of the claim that has not been obtained. It is also noted that, in March 2013 the Veteran withdrew his request for a hearing before the Board. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. Thus, the Board finds that the VA complied with the assistance provisions set forth in the law and regulations. Legal Criteria The issue before the Board involves a claim of entitlement to service connection for respiratory disability, to include COPD, due to nasopharyngitis, malaria, tobacco use, or Mustard gas/chemical exposure. Preliminarily, for claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the Veteran's use of tobacco products during service. 38 C.F.R. § 3.300(a). However, the provisions of § 3.300(a) do not prohibit service connection if the disability resulted from a disease that can be service-connected on some basis other than the Veteran's use of tobacco products during service, or if the disability became manifest during service. 38 C.F.R. § 3.300(b)(1). In general, the law provides that service connection may be granted to a Veteran for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 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) (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. Hickson v. West, 12 Vet. App. 247, 253 (1999). 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; (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 v. Nicholson, 21 Vet. App. 303, 307 (2007); 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"). VA regulations also include a provision for presumptive service connection for certain disabilities based on evidence of full body exposure to mustard gas in service. 38 C.F.R. § 3.316 (2012). Section 3.316 reads as follows: (a) Except as provided in paragraph (b) of this section, exposure to the specified vesicant agents during active military service under the circumstances described below together with the subsequent development of any of the indicated conditions is sufficient to establish service connection for that condition: (1) Full-body exposure to nitrogen or sulfur mustard during active military service together with the subsequent development of chronic conjunctivitis, keratitis, corneal opacities, scar formation, or the following cancers: Nasopharyngeal; laryngeal; lung (except mesothelioma); or squamous cell carcinoma of the skin. (2) Full-body exposure to nitrogen or sulfur mustard or Lewisite during active military service together with the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma or chronic obstructive pulmonary disease. (3) Full-body exposure to nitrogen mustard during active military service together with the subsequent development of acute nonlymphocytic leukemia. (b) Service connection will not be established under this section if the claimed condition is due to the Veteran's own willful misconduct (See §3.301(c)) or there is affirmative evidence that establishes a nonservice-related supervening condition or event as the cause of the claimed condition (See Section 3.303). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology, as they would be factual in nature and within his realm of personal observation. See Barr, 21 Vet. App. at 307-08; Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1377. 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, 492 F.3d at 1376-77. 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, 492 F.3d at 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 (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (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). Analysis The medical evidence reflects that the Veteran is currently diagnosed with COPD, and that he attributes his condition to numerous possible causes, to include nasopharyngitis, malaria, tobacco use, and exposure to chemicals, including mustard gas, during service. After a thorough review of the competent and probative evidence of record, the Board finds that the Veteran's service connection claim must be denied. The Board acknowledges that COPD is listed as a presumptive service connection disability based on evidence of full body exposure to mustard gas in service. See 38 C.F.R. § 3.316(a)(2). However, as discussed below, exposure to mustard gas or any other chemical during service has not been confirmed. VA has procedures in place to develop claims of exposure to mustard gas. The development procedures are outlined at M21-1MR, Part IV, Subpart ii, Chapter 1, Section F (revised December 13, 2005) (previously at M21-1, Part III, Chapter 5). The Board notes that claims related to mustard gas or Lewisite exposure filed after January 19, 2005, must be handled by the Muskogee, Oklahoma RO. In his November 2010 Claim, the Veteran's representative stated that he "was exposed to Mustard gas while training at Macon, GA." In a February 2011 statement, the Veteran stated that he was exposed to Mustard gas during training when he and other service-members would go through the "chemical building to teach the use and wearing of gas masks" in Macon, GA, during service. In accordance with VA procedure, the claim was referred to the Muskogee RO for appropriate development. However, upon investigation, the RO received a negative response regarding the Veteran's alleged exposure to Mustard gas from the Department of Defense Mustard gas database and Department of Veterans' Affairs Central Office. The Board finds that the RO properly followed the provisions of M21-1MR, IV.ii.1.F.22.b in attempting to verify the Veteran's claimed mustard gas exposure. Under this provision, evidence of full-body exposure to mustard gas or Lewisite should be requested only if the service connection claim is for a disability listed under 38 C.F.R. § 3.316(a), or the Veteran submits medical or scientific evidence showing a causal relationship between a disease not listed in 38 C.F.R. § 3.316(a) and exposure. As full body exposure to mustard gas or Lewisite has not been shown, presumptive service connection for COPD under 38 C.F.R. § 3.316(a) (2) is not warranted. The Board further finds that there is no evidence showing a nexus between the Veteran's COPD and his active service. The Veteran was first diagnosed with probable COPD in a VA examination in October 1978. Since 2005, the treatment records demonstrate that, despite two hospitalizations related to an exacerbation of his COPD in 2006 and 2009, his COPD has remained at baseline. The Veteran was afforded a VA examination in April 2011. The VA examiner provided an opinion in August 2011 after reviewing his claims file, which was not available at the time of the April examination. The examiner concluded that the Veteran's COPD is less likely than not incurred in or caused by nasopharyngitis. The examiner opined that the Veteran's STRs did not show evidence of COPD or chronic bronchitis in service and that the only respiratory/ENT condition that was diagnosed in the military was nasopharyngitis which completely resolved after a couple of days in 1942. The examiner concluded that this would not cause COPD later in life. In November 2012, a VA Medical Opinion Disability Benefits Questionnaire was prepared in response to the RO's question as to whether the Veteran's COPD was due to a progression of malaria and/or nasopharyngitis during service. The examiner (after review of the claims file) concluded that the Veteran's COPD was less likely than not incurred in or caused by any progression of nasopharyngitis or malaria incurred during his military service, explaining that current medical literature does not support that malaria or nasopharyngitis causes COPD. The examiner further explained that there is absolutely no connection between malaria or nasopharyngitis and COPD. The Veteran has not provided any medical opinion or evidence in support of his claim that malaria or nasopharyngitis caused his COPD. Consequently, the August 2011 and November 2012 VA opinions are afforded significant probative value. A medical opinion that is a factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Also to the extent the Veteran contends that his COPD is related to his chronic tobacco use, the Board notes service connection may not be considered on the basis that a lung disability resulted from injury or disease attributable to the Veteran's use of tobacco products during service. 38 C.F.R. § 3.300(a). The Board acknowledges that the Veteran is competent to report observable respiratory symptoms and to report that he underwent chemical/gas training. However, he is not competent to render an opinion as to the actual type of gas used during such training. Moreover, as a layperson, he is not competent to provide a medical opinion, as such requires medical expertise. While the record reflects that the Veteran is diagnosed with COPD, it does not contain persuasive evidence showing that he was actually exposed to mustard gas or any similar chemical during service, nor does it contain competent evidence relating his COPD to any incident of service. The Board has duly considered the lay statements of record. However, the Board finds that the etiology of the Veteran's COPD is far too complex a medical question to lend itself to the opinion of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In light of the above, the Board finds that the medical evidence of record far outweighs the Veteran's lay report of etiology. Although it is not entirely clear when the Veteran was first diagnosed with COPD, the October 1978 VA examination report is the first document of record, which notes a possible diagnosis of COPD. However, there are no treatment records related to his COPD until approximately 2005. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (stating that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred during military service, which resulted in a chronic or persistent disorder). Thus, to the extent that the Veteran was diagnosed with COPD much earlier, any assertion of continuity of symptomatology is outweighed by the probative medical evidence, which concludes his COPD is not related to service. Based on the foregoing reasons and bases, the Board finds that the preponderance of evidence is against the service connection claim for a respiratory disability, to include COPD, including as due to nasopharyngitis, malaria, or claimed mustard gas/chemical exposure, and there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The foregoing analysis has been undertaken with the Board's heightened duty in mind. O'Hare, supra. Accordingly, the claim must be denied. ORDER Entitlement to service connection for a respiratory disability, to include COPD, including as due to exposure to mustard gas, is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs