Citation Nr: 1318172 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 04-01 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a pulmonary disorder, to include asthma, chronic bronchitis, the residuals of tuberculosis, and any other pulmonary disorder, as being secondary to chemical dioxin exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active service in the United States Marine Corps from September 1967 to July 1970, to include combat duty in the Republic of South Vietnam. This matter comes before the Board of Veterans' Appeals (Board), from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Following the perfection of his appeal, the appellant proffered testimony before the undersigned Veterans Law Judge in Los Angeles in November 2006. A transcript of that hearing was prepared and has been included in the claims folder for review. It is noted that in Bryant v. Shinseki, 23 Vet. App. 488, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, in pre-hearing conference and during the hearing, the undersigned VLJ noted the basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. Additionally, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) (2012) or identified any prejudice in the conduct of the Board hearing. The record reflects that the Board has remanded this claim on five previous occasions. The Board remanded the case to the RO, via the Appeals Management Center (AMC), in March 2007, November 2009, February 2011, October 2011, and December 2012, for further development and adjudicative action. The case has been returned to the Board for further appellate review. Upon reviewing the development since December 2012, the Board finds there has been substantial compliance with its remand instructions with respect to the appellant's disability of the lungs. The Board notes that the Court has stated that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall v. West, 11 Vet. App. 268 (1998) violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The AMC was ordered by the Board to obtain additional medical evidence with respect to the appellant's claimed disorder, and it has done so. Specifically, the AMC was asked to obtain the appellant's Social Security Administration (SSA) records and to have an examiner provide additional comments with respect to those records. Both of these tasks have been performed. The results were returned to the AMC which, in turn, issued a Supplemental Statement of the Case (SSOC) in response to the information obtained. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of the Board's most recent remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Thus, the Board will proceed to review and decide the claim with respect to the issue now on appeal based on the evidence that is of record. FINDINGS OF FACT A preponderance of the objective and probative medical evidence of record is against a finding that the appellant's lung disability (chronic obstructive pulmonary disease) had its onset during active military or is otherwise related to his active service, including exposure to herbicide agents. CONCLUSION OF LAW A pulmonary disability, to include the residuals of tuberculosis, chronic bronchitis, chronic obstructive pulmonary disease, and asthma, was not incurred in or aggravated by active service, including as due to exposure to chemical dioxins in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all 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 appellant. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims, hereinafter the Court, held that the 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. Those five elements include (1) veteran status;( 2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Additionally, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. Notice which informs the appellant of how VA determines disability ratings and effective dates should also be provided. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, letters from the RO and the AMC advised the appellant of the evidence and information necessary to substantiate his service connection claim, as well as he, and VA's, respective responsibilities in obtaining such evidence and information. A May 2007 communication also informed the appellant of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman. Readjudication in August 2009, via the issuance/publication of a Supplemental Statement of the Case, cured any timing deficiency. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Thus, no further development is necessary with respect to the duty to notify. The appellant was afforded VA examinations over the course of this appeal, with the most recent in March 2013. In all cases, the results from the examinations are of record. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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"). The examinations and subsequent reports involved a review of the available medical records and the results of actual testing/examining of the appellant. The Board therefore finds that the medical information in combination is adequate for ratings purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, the Board notes that the appellant also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. Such evidence has been considered in deciding the instant appeal. Therefore, the Board will proceed with review of the appellant's claim based upon all relevant evidence. For the foregoing reasons, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duty to inform and assist the appellant at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Laws and Regulations Under 38 U.S.C.A. § 1110 (West 2002) and 38 C.F.R. § 3.303 (2012), a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. In addition, the law provides that, where a veteran served ninety days or more of active military service, and diabetes mellitus becomes manifest to a compensable degree within one year from the date of termination of such active service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). For the showing of chronic disease (as defined under 38 C.F.R. § 3.309(a)) in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Shedden v. Principi, 381 F. 3d 1163, 1166-67 (Fed. Cir 2004). In this case, the appellant has contended, in pertinent part, that he was exposed to chemical dioxins in service, and that such exposure caused his lung disorder. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2012) (emphasis added). The VA General Counsel has determined that the regulatory definition requires that an individual actually have been present on the land mass of the Republic of Vietnam. VAOPGCPREC 27-97; 62 Fed.Reg. 63604 (1997). Specifically, the General Counsel has concluded that in order to establish qualifying service in Vietnam, a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Id. If a veteran was exposed to a herbicide agent during active military, naval, or air service, specified diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2012). The Secretary of Veterans Affairs has determined, however, that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See, e.g., Notice, 68 Fed. Reg. 27,630-41 (May 20, 2003). Notwithstanding the foregoing the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In other words, medical evidence must show the veteran's disabilities are (were) related to service, to include exposure to chemical dioxins therein. 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). In light of the foregoing, service connection may be presumed for residuals of chemical dioxin exposure by showing two elements. First, a veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6) (2012). Second, a veteran must be diagnosed as having one of the specific diseases listed in 38 C.F.R. § 3.309(e), or otherwise establish a nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997). III. Facts and Discussion The appellant has come before the VA asking that service connection be granted for a lung disability. He has averred that his lung disability, that has been described as being chronic obstructive pulmonary disease (COPD), the residuals of chronic bronchitis, asthma, and the residuals of tuberculosis, was caused by or the result of his military service, including his service in Vietnam. As indicated above, the appellant served from February 1967 to July 1970. He was in the United States Marine Corps. A review of the appellant's service medical treatment records fails to reveal any complaints of or treatment for any type of lung disability, disorder, or disease while he was on active duty. That is, he did not receive treatment for tuberculosis, bronchitis, asthma, or COPD during his three plus years in the Marine Corps. A reservist physical examination of the appellant that was accomplished in March 1976 was also negative for any symptoms, manifestations, or diagnoses of a lung disorder. A PPD (purified protein derivative) test used to diagnose tuberculosis also produced a negative result in October 1976. The appellant's claims folder shows that in the late 1970s, he applied for and received VA Educational Assistance. He did not apply for service connection benefits nor did he complain about any type of lung disability or disorder. It was not until the appellant submitted a copy of a VA chest x-ray report, dated February 24, 2001, that there was any indication that the appellant had any evidence of possible obstructive airway changes. That is, it was 25 years from his last contact with service that the appellant even mentioned that he might have a lung disorder. The Board finds it significant that the appellant did not claim he was seeking service connection for a lung disability at the time he originally sought other VA benefits. If he had a chronic disability at that time, it would appear only logical that a claim would be made. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). Also of note is a private medical report of February 24, 2001, that indicates that the appellant was complaining of coughing and aching all over. The medical report states that the appellant had been experiencing chills and coughs for several days. Testing was accomplished and he was diagnosed with bronchial asthma. Shortly thereafter, the appellant submitted a claim for VA compensation benefits for a "breathing disability." See VA Form 21-526, Veteran's Application for Compensation and/or Pension, received May 31, 2002. On that form, the appellant averred that he had been suffering from a breathing disability since 1975. To support his claim, he submitted a VA medical treatment record that showed treatment in 2002. Upon review of the appellant's record, the RO, in September 2002, denied entitlement to service connection for a lung disability, to include asthma, a breathing disability, and scarred lungs, to include as being secondary to exposure to chemical dioxins. The appellant was notified of that action and he submitted a notice of disagreement. Four years later, in 2006, the appellant provided testimony before the Board. In that hearing, the appellant stated that he began having difficulty with his lungs shortly after service and that he had receive minimal treatment through the VA in the early 1980s. He testified that at some point, the medical care providers hypothesized that he might have tuberculosis or some other lung disability that was caused by or the result of chemical dioxin exposure. He further stated that he had long experienced lung difficulties and that it was his belief that the lung condition was caused by or the result of his military service. Following his hearing, additional development of the appellant's claim was accomplished. This included the obtaining of the appellant's VA medical records and any other records of which the RO/AMC was made aware. In March 2011, the appellant underwent a VA Respiratory System Examination. The examiner indicated that the appellant had not been previously diagnosed with tuberculosis and that he was not suffering from tuberculosis at the time of the examination. The examiner did, however, indicate that the appellant had suffered from COPD, asthma, and bronchitis. Despite this diagnosis, the examiner did not provide an etiological opinion concerning these three disorders. A second examination was performed in November 2011. At that time, the appellant was diagnosed as suffering from asthma and COPD. Upon completion of the examination, the examiner indicated that it was less than likely that the diagnosed conditions were caused by or the result of the appellant's military service; however, an explanation as to that conclusion was not provided. The record reflects that after the November 2011 examination was performed, the appellant's Social Security Administration (SSA) records were obtained. Of note is the determination by the SSA that the appellant was disabled, that he had been disabled since October 24, 2008, and that the conditions that primarily caused the appellant to be disabled were COPD and emphysema. In the volumes of records, there are no opinions or hypotheses that suggest or insinuate that the appellant's COPD and emphysema were caused by or the result of the appellant's military service or are secondary to the appellant's exposure to chemical dioxins while stationed in Vietnam. A VA doctor provided an addendum medical report in March 2013. The examiner specifically wrote that the appellant's current lung disabilities were not caused by or incurred in service. The examiner further indicated that the current disorders were not caused by or the result of the appellant's exposure to chemical dioxins while on active duty. It was further opined by the examiner that the appellant's lung disabilities were the direct result of the appellant's 41 year, one-and-one-half-pack-a-day tobacco smoking habit. The examiner based this opinion on a review of the appellant's complete medical records and history, including the reports from the SSA, along with a previous examination of the appellant. The examiner further noted that the medical treatment records did not show the presence of a lung disorder while the appellant was on active duty and, in fact, the lung disability classified as COPD did not manifest itself until the 1990s. The examiner also suggested that the appellant's assertions concerning the continuity of symptoms were not substantiated by the enormous amount of medical records that did not show complaints of or treatment for any type of lung disability, disorder, or disease until many years after the appellant left the service of the Marine Corps. In summary, the appellant has claimed that he now suffers from a lung disability that he attributes to service or to his exposure to chemical dioxins. To support his claim, he has provided testimony before the Board and has submitted written statements. He has stated that his miscellaneous treatment records since service support his assertions. Nevertheless, he has not provided a medical opinion, or any other medical documents or treatises, that supports his contentions. Moreover, he has not provided any type of rebuttal to the VA examiner's conclusions. The Board first acknowledges that the appellant did serve in Vietnam. As such, the Board concedes that the appellant was exposed to chemical dioxins while on active duty; however, even though the appellant was exposed to chemical dioxins, none of the pulmonary disabilities (asthma, COPD, or bronchitis) are associated with herbicide exposure. As such, the presumptive provisions of 38 C.F.R. § 3.307(a)(7) (2012) and 38 C.F.R § 3.309(e) (2012) do not apply. The Veteran, however, is also claiming service connection on a direct basis. In this case, the appellant has been diagnosed as having asthma and COPD, so there is no disputing he has a current respiratory condition. Thus, the determinative issue is whether this condition is attributable to his military service. The Board must weigh the credibility and probative value of any available medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In this instance, there are no medical opinions, either governmental or private, that support the appellant's assertions. In contrast to this lack of evidence, none of the VA medical care providers who have examined or treated the appellant have concluded or suggested that he is now suffering from a lung disability that was caused by or related to service or to any incident therein. Additionally, from the time that the appellant was discharged from service to the mid-1990s, there is also no evidence of treatment for or findings indicative of any type of lung disorder. In this regard, the absence of any complaints is especially probative Although the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Court has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995) (suggesting that a medical opinion is inadequate when it is unsupported by clinical evidence). Additionally, in Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that a claims file review, as it pertains to obtaining an overview of a service member's medical history, is not a requirement for private medical opinions. A review of the claims file by a VA examiner, without more, does not automatically render the VA examiner's opinion competent or persuasive because the claims file is a tool for the physician, and conversely a private medical opinion may not be discounted solely because the opining clinician did not review the claims file as there are other means by which a physician can become aware of critical medical facts, such as a history of treating the service member for an extended period of time and/or reviewing pertinent medical literature. The relevant focus is not whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. Thus, when VA refers to facts obtained from review of the claims file as a basis for crediting one expert opinion over another, it is incumbent upon VA to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment. Certainly, the particular medical information contained in a claims file may have significance to the process of formulating a medically valid and well-reasoned opinion. The Court further held that a medical opinion that contains only data and conclusions is not entitled to any weight and a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes is derived. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In sum, in Nieves-Rodriguez, the Court indicated that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. In this instance, the VA examination results and addendum are not equivocal or speculative. These medical examinations and reviews clearly discuss why the appellant's current lung disability, however classified, is not related to service, is not secondary to a service-connected disability, and is not the result of the appellant being exposed to chemical dioxins while in Vietnam. The medical examiners were thorough in their review of all of the medical evidence of record and the most recent report clearly explained the lack of medical causation in the opinion. The VA examiners were not equivocal, vague, or ambiguous with their assertions and, with respect to the contrary assertion provided by the appellant, the most recent examiner discussed his reasoning as to why the appellant's opinion was without merit. In other words, the Board believes that the VA health care providers provided sound reasoning in their analyses of the situation. The first examiner in March 2011 concluded that the appellant had never suffered from tuberculosis and then the second examiner found that any lung disability from which the appellant might now suffer, to include asthma, chronic bronchitis, or COPD, was not related to or caused by the appellant's Marine Corps service or any incidents therein. The VA examiners reviewed in detail the pertinent medical records, discussed the salient facts, and provided a complete rationale for all conclusions presented, as noted in the discussion above. As to the appellant's assertions, and those of his accredited representatives, the Board must weigh the credibility and probative value of the evidence. The Federal Circuit has 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 Barr v. Nicholson, 21 Vet. App. at 303, the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. The Federal Circuit, in Jandreau v. Nicholson, 492 F. 3d at 1372, determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes 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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. The Board finds that the Veteran is not competent to provide complex medical opinions regarding the etiology of the COPD or asthma or the recurrent bronchitis. Thus, the lay assertions are not competent or sufficient. Moreover, the Board finds the lapse in time after discharge from service to the showing of the purported disorders to be highly probative evidence against the appellant's claim. See Maxson v. Gober, 230 F.3d at 1330. Although the appellant has been diagnosed as having recurrent bronchitis, asthma, and COPD, and he has not been diagnosed as suffering from tuberculosis or the residuals thereof, the weight of the medical evidence is against a finding that any of these lung disorders are related to his military service or secondary to exposure to chemical dioxins while on active duty. On these facts, the preponderance of the objective medical evidence of record is against the claim. Therefore, the benefit-of-the-doubt doctrine is not for application herein, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notwithstanding the above discussion, since a VA examiner has attributed the appellant's COPD to smoking, the Board has considered the potential argument that the appellant became nicotine dependent in service which ultimately caused his COPD. Because the appellant filed his claim after 1988, service connection based on the use of tobacco products is precluded. In this regard, legislation was enacted prohibiting service connection for a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a claimant during the claimant's military service, which applies to all claims filed after June 9, 1998. See 38 U.S.C.A. § 1103; Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, 112 Stat. 685, 865-66 (1998). Finally, the Board notes that the SSA has found the appellant to be suffering from COPD and emphysema and held him to be disabled since 2008. Although the Board recognizes the disabling nature of the appellant's respiratory disability, the SSA decision and evidence does not provide a nexus to his period of service. ORDER Entitlement to service connection for a pulmonary disorder, to include asthma, chronic bronchitis, the residuals of tuberculosis, and any other pulmonary disorder, as being secondary to chemical dioxin exposure, is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs