Citation Nr: 1322759 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 11-07 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as a respiratory disorder, to include as secondary to mustard gas or Lewisite exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in July 2010, a statement of the case was issued in November 2010, and a substantive appeal was received in March 2011. FINDINGS OF FACT 1. The evidence of record does not establish that the Veteran experienced full-body exposure to mustard gas/Lewisite during his active duty service. 2. A respiratory disorder, to include COPD, did not manifest during the Veteran's active duty service, nor is it causally related to such service. CONCLUSION OF LAW COPD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1133, 5107 (West 2002); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304(b), 3.316 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with proper notice by letter dated in September 2008. This notice complied with the specificity requirements of Dingess, identifying the five elements of a service connection claim, and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran was also sent a questionnaire regarding his exposure to mustard gas/Lewisite; his completed questionnaire was received in December 2008. 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). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. VA has obtained service treatment records (STRs), service personnel records, and VA medical records. The Veteran did not identify and relevant private treatment records. Thus, the Board finds that no additional assistance in this regard is required. With regard to the service connection issue being decided herein, the Board finds that a VA medical examination (with nexus opinion) is not required in order to make a final adjudication. McLendon v. Nicholson, 20 Vet. App. 79 (2006), states that, in disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The Board finds that the standards set forth in McLendon are not met with regard to the issue on appeal in this case. As discussed below, the Veteran did not receive full-body exposure to mustard gas/Lewisite and, thus, the presumptions in 38 C.F.R. § 3.316 are not for application. The record otherwise contains no competent scientific or medical evidence supporting a connection between COPD and exposure to mustard gas/Lewisite or any other chemical agent. Thus, there is no indication that the Veteran's current disability is associated with his service or with another service-connected disability. Consequently, a VA nexus opinion is not necessary to adjudicate the claim on appeal. The Veteran avers that he was exposed to various chemical agents while attending Nuclear Biological Chemical Defense (NBCD) training. It particular, the Veteran contends that he participated in a "three drop test" wherein three drops of mustard gas were placed on his bare left forearm. The Veteran has been awarded service connection for scarring as a result of this test. Therefore, participation in the "three drop test" is conceded. In addition, VA received a response from the Department of Defense (DoD) Mustard Gas Database (MGD) indicated that there is no evidence that the Veteran experienced any other exposure to mustard gas/Lewisite, and the Veteran does not contend otherwise. (See completed Questionnaire for Exposure to Mustard Gas or Lewisite). Therefore, the Board finds that further development on this matter is unnecessary. The Board acknowledges the assertions set forth in the Veteran's substantive appeal. However, under the facts of this case no further development is necessary. The record does contain the Veteran's personnel file, a certificate confirming that the Veteran completed NBCD training, and a formal finding from the DoD MGD that the Veteran did not receive full-body exposure to mustard gas during active service. All known and available records have been obtained and associated with the Veteran's claims file. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter and that no further development of the evidentiary record is necessary. VA has complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claim at this time. Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, supra. A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (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); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matters on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Board finds that, in this case, service connection is not warranted with regard to COPD because the preponderance of the evidence is against finding that any such disability manifested during service, manifested within a year following service, or is otherwise causally linked to service, to include as due to mustard gas/Lewisite exposure. Claims based on the chronic effects of exposure to mustard gas are governed by the provisions of 38 C.F.R. § 3.316. Those provisions are 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 a veteran's own willful misconduct, or if there is affirmative evidence that establishes a nonservice-related supervening condition or event as the cause of the claimed condition. See 38 C.F.R. § 3.316 (2012). For claims involving exposure to mustard gas, a veteran must provide evidence of in-service exposure and a diagnosis of current disability, but is relieved of the burden of providing medical evidence of a nexus between the current disability and his in-service exposure. Rather, that nexus is presumed if the other conditions are met, subject to the regulatory exceptions in 38 C.F.R. § 3.316(b). See 38 C.F.R. § 3.316; See also Pearlman v. West, 11 Vet. App. 443, 446 (1998). In this case, the Veteran's sole contention of exposure to mustard gas/Lewisite is through the "three drop test." He contends that the "full-body exposure" criterion required by 38 C.F.R. § 3.316 is ambiguous, as it does not define the scope of exposure required to be "full-body", arbitrary, insufficiently considerate of "the toxicity and danger represented in even the smallest drop of mustard gas," and inconsistent with the concept of "liberally construing laws to Veterans' benefit." (See Informal Hearing Presentation, Pages 3-4). He argues that the appropriate standard is to provide presumptive service connection based on any mustard gas exposure. First, the Board is "bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department. 38 U.S.C.A. § 7104(c). Thus, the Board lacks the authority to alter 38 C.F.R. § 3.316 to include all types of exposure. Second, although "full-body exposure" is not expressly defined, the plain language of the regulation clearly refers to exposure greater than that experienced by the Veteran: three drops on the left forearm. Indeed, the response from the DoD MGD acknowledged that the "three drop mustard test . . . was common with [the] NBC course training" the Veteran received, but distinguished the exposure received through that test from the full-body exposure required by § 3.316 for the award of service connection on a presumptive basis. The DoD MGD response states that "there is nothing to indicate possible full body exposure to mustard agent" and that the Veteran "cannot be considered as having been exposed full-body to mustard agent or Lewisite." As the "three drop test" does not constitute full-body exposure as contemplated in § 3.316, and neither the Veteran nor the record indicate any additional exposure, the Board finds that the Veteran did not experience full-body exposure to mustard gas/Lewisite and is not entitled to service connection for COPD on a presumptive basis. If the criteria for presumptive service connection under the provisions of § 3.316 are not met, a veteran may still establish entitlement to service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Establishment of service connection on a direct basis requires competent medical evidence relating the claimed disability to mustard gas exposure during the veteran's period of active military service. The Veteran's STRs do not reflect, and the Veteran does not contend, that he was treated for a chronic respiratory condition while in service, nor does the Veteran aver that he has continually experienced COPD symptoms since service. In fact, the Veteran concedes that "COPD was first manifested many years after service." (See Appeal to BVA, Page 10). Furthermore, there is no competent medical evidence of record indicating a nexus between the Veteran's mustard gas exposure in NCBD training, or exposure to any other chemical agent during his active service, and his current COPD. To the extent that the Veteran argues that his training and experience as an Emergency Medical Technician entitle his contentions of nexus to greater weight than those of a typical lay person, the Board notes that there is no evidence that the Veteran possesses the requisite knowledge or training necessary to determine the etiology of pulmonary pathology or the long-term pulmonary effects of exposure to mustard gas, or any other chemical agent, through the "three drop test." Consequently, the Board finds that the competent, credible evidence in this case weighs against a finding of any medical nexus between any current respiratory disability and the Veteran's service. As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for COPD, or any other respiratory disability, the benefit-of-the-doubt rule does not apply and this claim is denied. See 38 U.S.C.A § 5107. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs