Citation Nr: 1323953 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 06-37 289 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to February 1953. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2006 decision by the RO in Waco, Texas, that in pertinent part, denied entitlement to service connection for a respiratory disorder. The Board previously remanded this case to the RO via the Appeals Management Center (AMC) in March 2009, February 2011, and February 2013 for additional development. In its February 2013 decision and remand, the Board granted entitlement to service connection for neuropathy of the bilateral lower extremities. This decision was effectuated in a March 2013 rating decision, which also granted service connection for residuals of cold injuries to both feet. The case was subsequently returned to the Board. In a July 2013 rating decision, while this appeal was pending, the Waco RO granted entitlement to an increased rating for service-connected bilateral hearing loss, and granted a total disability compensation rating based on individual unemployability (TDIU). These issues are not before the Board. Unfortunately, the Veteran's claims folder was mislaid after the February 2011 remand of the appeal. The claims folder was rebuilt and many of the relevant treatment records and submissions from the Veteran are of record. Under similar circumstances, the Board can rely on facts as stated in VA determinations, adjudications, and memoranda under the presumption of regularity which requires that it be assumed that VA accurately recorded the facts as they then existed in the absence of clear evidence to the contrary as to hold otherwise would create a presumption that VA failed to properly discharge its official duties in a prior decision. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1998). Thus, the present decision will rely on facts contained in such documents, as is necessary. 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). FINDING OF FACT The most probative (competent and credible) medical and other evidence indicates that the Veteran's current chronic respiratory disorders (chronic bronchitis and COPD) are not related to his service. CONCLUSION OF LAW The Veteran's chronic bronchitis and COPD are not due to disease or injury incurred in or aggravated by his military service. 38 U.S.C.A. §§ 1101, 1103, 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). These VCAA 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VCAA notice letters were sent to the Veteran in February 2006 and March 2006 prior to the June 2006 rating decision on appeal, i.e., in the preferred sequence. The March 2006 letter was remailed to the Veteran in August 2006, after he said he had not received it. These letters informed him of the type of information and evidence required to substantiate this claim for service connection, and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. He was advised, as well, of the downstream disability rating and effective date elements of this claim in these letters. See Dingess/Hartman, supra. Additional notice and development letters were sent to him in April 2009, June 2010, July 2010, October 2010, May 2011, August 2012, November 2012, and March 2013, and the claim was most recently readjudicated in a May 2013 SSOC. See Mayfield IV, supra; Prickett, supra. So he has received all required VCAA notice concerning this claim. Moreover, he has not alleged any prejudicial error in the content or timing of the VCAA notice he received. As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), he, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and, moreover, above and beyond this, that it is unduly prejudicial - meaning outcome determinative of his claim. Thus, absent this pleading or showing, the duty to notify has been satisfied. VA also fulfilled its duty to assist the Veteran with this claim by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, the RO obtained VA medical records and identified private medical records, lay statements, and the AMC and RO arranged for VA compensation examinations in June 2009, March 2011, and April 2013. The April 2013 VA examiner provided a medical opinion regarding the etiology of the claimed disability after a clinical examination and a review of the Veteran's reported history, his claims file, and his medical records, including the reports of prior VA examinations. The Board observes that the service treatment records are missing after a search in all available sources. The records are assumed to have been destroyed in the July 1973 fire in the National Personnel Records Center in St. Louis, Missouri. As a result, the VA has a heightened responsibility to explain the rationale and bases for its decision. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board further finds that the AMC has substantially complied with its prior remand orders. In this regard, the Board directed that the AMC should contact the Veteran in an attempt to obtain missing STRs and relevant private medical records, and this was done. The AMC has repeatedly attempted to obtain private medical records from Dr. W.'s office, and after the most recent February 2013 remand, the AMC wrote to the Veteran and asked him to provide identifying information to enable the AMC to obtain these records, or to submit them himself, and he did not reply. Further, the Board observes that Dr. W. is a podiatrist, and thus these records are of limited evidentiary value regarding the remaining respiratory claim. See e.g., a June 2007 VA outpatient treatment record. And, as noted, VA compensation examinations were conducted while this case was on remand, most recently in April 2013. The claims file, the Veteran's reported history, and pulmonary function tests were reviewed by the examiner. The Board finds that the additional April 2013 VA medical opinion is adequate as it is responsive to the determinative issue of causation and supported by rationale and, thus, in compliance with this remand directive. Therefore, the Board finds that no further development is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board concludes that all the identified and available records and medical evidence have been obtained in order to make a determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist 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 v. Principi, 16 Vet. App. 183 (2002). Governing Statutes, Regulations and Precedent Cases The Veteran contends that he incurred a chronic respiratory disorder during service, as a result of cold exposure in Germany. The Board has reviewed all the evidence in the appellant's physical claims file and electronic Virtual VA folder. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For a claim, as here, received by VA after June 9, 1998, service connection is expressly precluded for any disability related to chronic tobacco use (smoking). See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. This statute and regulation, however, do not preclude the establishment of service connection based upon a finding that a disease or an injury (even if tobacco-related) became manifest or was aggravated during active service or became manifest to the requisite degree of disability during any applicable presumptive period specified in 38 U.S.C.A. §§ 1112 or 1116. In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that a three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, 708 F3d. at 1336. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit Court indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Id. at 1339. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. at 1338-40. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required." Id. at 1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). COPD and bronchitis are not listed in 38 C.F.R. § 3.309(a), and thus the more relaxed continuity-of-symptomatology standard does not apply here. In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether the evidence also is credible). Third, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales, 218 F.3d at 1380-81. As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent. See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue. See Davidson, 581 F.3d at 1316. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy). For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002) (flatfeet); Falzone v. Brown, 8 Vet. App. 398 (1995) (tinnitus). However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity. See Barr, 21 Vet. App. at 309. For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). The Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007). Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Id. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id. The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value. See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board discounts the weight of evidence it finds not to be credible. See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also 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"). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis Turning now to the facts of this particular case. The medical evidence demonstrates that the Veteran has a current diagnosis of a respiratory disorder, as he has been diagnosed with chronic obstructive pulmonary disease (COPD) and chronic bronchitis. See report of April 2013 VA examination. Consequently, the determinative issue is whether or not this disability is attributable to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or a disease incurred in service."). See also Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). As noted above, the Veteran's STRs are missing. There is no medical evidence of complaints or treatment of a respiratory disorder until many years after his separation from service in February 1953. In a private medical record dated September 1982, the Veteran was found to have acute bronchitis. Private medical records including West Texas Medical Center records beginning in September 1982 revealed the Veteran had "horrendous exposure to petroleum products, chlorine and automobile exhausts as well as other petroleum distillates used to clean and degrease engine parts, etc." It was also noted that he had been a heavy smoker and had a severe cough since a respiratory tract infection in the winter of 1981. Pulmonary function tests in August 1982 were normal, except for maximum voluntary ventilation which was due to an unrelenting cough rather than muscle weakness or poor performance. He was diagnosed with bronchitis in September 1982, and with a cough in March and November 1983, of uncertain etiology. Possible etiologies found were change in temperature, tension factors, overuse of voice, and mild allergies. June 1992 medical records from C.J., M.D. show that the Veteran had a history of childhood hay fever. The Veteran operated a service station and was exposed to environmental hazard associated with that business. In addition he had a side business being on call with a wrecker at all hours. In this side business he had frequently been exposed to extremes of temperature during the nights, as well as exposure to inhalation of exhaust fumes. He also had been a heavy smoker until 30 yrs ago, and chewed tobacco until last winter. Dr. J. further noted that the Veteran coughed relentlessly raising huge amounts of very thick tenacious material. The cough was triggered by temperature changes or excitement. VA outpatient treatment records dated from 1999 to 2004 are negative for respiratory complaints, treatment, or diagnoses, although the Veteran was treated for several other conditions, primarily cardiovascular disease. In May 2005, he complained of a cough with whitish sputum, with no chest pain or shortness of breath. He took Claritin which helped. The pertinent diagnostic assessment was seasonal allergy. In a November 2005 statement, the Veteran said that he was hospitalized with pneumonia in Frankfurt, Germany and that since that time he has had recurring bronchitis and lung problems. In March 2006 a private physician stated that the Veteran had COPD, which can include chronic bronchitis, and said he has had multiple pneumonias and scarring to his lungs. The doctor opined that his lung disorder could possibly be due to his war time injuries. The Veteran has submitted a buddy statement, dated July 2007, of a friend who served with the Army in Germany at the same time. Although he was unaware of the Veteran's personal exposure, he stated that some of the troops had to be sent to the hospital in Frankfurt, Germany for frostbite. He remembered the winter of 1951 to 1952 being bitterly cold with the worst frost he had ever seen. He said that they were not issued sufficiently warm clothes for sleeping outdoors with their trucks. The buddy stated that it is more likely than not that they had frostbite and other conditions related to cold weather and the light weather gear they were issued. A report of a VA annual examination dated in January 2007 reflects that the Veteran denied chest pain, cough, or shortness of breath; after an examination, a respiratory disorder was not diagnosed. A June 2007 VA outpatient treatment record reflects that the Veteran reported that he was exposed to subzero temperatures in service and got frostbite, and believed he had current foot problems for the past five or six years due to this. He did not complain of any respiratory symptoms. He reported that he was an ex-smoker who stopped in 1950. A report of a June 2009 VA pulmonary examination reflects that the claims file was not available for the examiner's review. The Veteran reported that he has a breathing condition every winter, since 1951-1952, during which he has to go to an emergency room to get breathing treatments due to bronchospasm. He related that the bronchospasm did not affect him the majority of the year and thus he did not currently use take inhalers. He had a history of heart disease and coronary bypass done in 1998 and an aortic valve was replaced in 2007. His wife reported that he smoked for 10 years, at least from age 15 to 26. After an examination, the examiner stated that it appeared that the Veteran had bronchospasms that only occurred during the winter, and it was as likely as not that an exposure to a winter in 1952 severe enough for him to have frostbitten feet could lead to such a condition. It was also as likely as not that his previous tobacco history could give him the exact same symptoms. The examiner did not think the fumes from the gas station were relevant at this time. He had fairly good exercise tolerance as observed and his condition did not seem to be significant to him except in the winter. A July 2009 VA primary care annual examination reflects that the Veteran denied chest pain, cough, or shortness of breath; after an examination, a respiratory disorder was not diagnosed. In an August 2009 addendum, the examiner stated that the claims file was reviewed. He noted that a pulmonary and allergy consultation was done in March 1983, and the Veteran reported that he had multiple episodes of bronchitis. He had a recurrent cough, and a bronchoscopy showed inflamed airways. He also noted that an August 2009 pulmonary function test showed an obstructive pattern. The examiner opined that it was as likely as not that the Veteran's history of bronchitis and recurrent bronchospasm were as a result of exposure to weather when he was in military service in 1952, since similar conditions often have insults that leave the airways hyperreactive. VA outpatient treatment records primarily relate to treatment for other conditions, and reflect only occasional treatment for bronchitis and COPD. Some of the records reflect the Veteran's report that he believes his respiratory condition is due to an illness during his deployment to Germany in service. On VA examination in March 2011, the Veteran reported that during service in Germany in the 1950s, he and other soldiers were sent out into the field unprepared without field equipment, and they spent a very cold night outside. The next day over eight men were sent to Frankfurt for treatment and evaluation. His feet were treated for frostbite but he was not hospitalized. He contended that due to this incident he had been troubled with lung infections throughout his life. The examiner noted that the Veteran was previously a wrecker driver, and retired in 1994. The examiner stated that after an exhaustive review of the Veteran's medical records and today's interview and physical examination, as well as a thorough review of the latest medical literature regarding lung disease following cold exposure, it was his professional medical opinion that it was not possible without resort to speculation that the current respiratory condition is related to a history of cold exposure in Germany in the 1950s. It is more likely that the Veteran's current lung condition is due to long-term exposure to diesel exhaust fumes and the Veteran's tobacco usage than to cold exposure. He said that the evidence did not support a history of lung damage due to severe cold, in light of the lack of medical treatment for many years, and his long occupation as a wrecker/tow truck driver in cold weather, exposure to petroleum fumes, etc. He noted that long term exposure to diesel exhaust fumes can pose serious risks to a person's health, including chronic respiratory tract irritation, coughing, heaviness in the chest and shortness of breath. On examination, a chest X-ray study showed clear lungs. The diagnosis was COPD. In an August 2011 addendum, a VA physician (M.D.) stated that he had reviewed the above examination report and the Veteran's claims file. He stated that based on his review of the respiratory exam and pulmonary function test findings, he agreed with the impression that no definite link can be established between the patient's current respiratory condition and prior exposure to cold while he was in the military. By a letter dated in July 2011, a private physician, D.J.M.V., MD, a neurologist, noted that the Veteran reported that the Veteran was seen for foot complaints. He reported that he slept in a truck during World War II when the temperature was ten below zero. He reported difficulty with his feet since then. He also reported seasonal bronchitis, and the current diagnoses included seasonal bronchitis. No other respiratory disorder was diagnosed. In a November 2012 statement, the Veteran said that when he was in Germany in 1951 or 1952 it was very cold, below zero, and thirteen of them went to the hospital with frostbite, as there was no doctor at their location. He said he had otherwise lived in Texas all his life and never experienced cold sufficient to give him frostbite. He did not comment on his respiratory disorder. On VA respiratory examination in April 2013, the examiner stated that the claims file was reviewed, and referenced a March 2011 chest X-ray study that showed no acute cardiopulmonary disease. April 2011 pulmonary function tests showed a small airways obstructive defect; lung volumes and diffusion capacity were within normal limits. The examiner diagnosed COPD and chronic bronchitis. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner based his opinion on his clinical experience, the absence of a chronic respiratory condition in service, and the Veteran's own report that the onset of his chronic bronchitis was many years after service, in the 1960s. He also indicated that the most common cause of chronic bronchitis and COPD is smoking cigarettes, and the condition is less likely related to a single episode of pneumonia during his active duty period. A May 2013 VA primary care note reflects that the Veteran was seen for a one-day history of coughing, sore throat, nasal congestion and wheezing. The diagnostic assessment was cough with wheezing, in a patient with congestive heart failure and coronary artery disease who is an ex-smoker. Under the facts and circumstances of this case, the Board assumes that the Veteran was exposed to cold temperatures and treated for respiratory symptomatology, which the Veteran reports was pneumonia, while in service. However, a "chronic" (meaning permanent) disability involving his lungs/respiratory system was not identified in service. Although the Board assumes he was exposed to extreme cold in service, that, alone, is not necessarily indicative of a chronic respiratory disability. In this particular case at hand, after reviewing all of the relevant lay and medical evidence in the file, and for the reasons and bases discussed below, the Board finds that the weight of this evidence shows that, although the Veteran was exposed to cold temperatures during service in Germany, it did not result in chronic or permanent residual respiratory disability. Although there is no disputing the Veteran has chronic recurrent bronchitis and COPD currently and has since at least the 1980s, the most competent and credible (and therefore ultimately probative) lay and medical evidence of record does not provide the required linkage between his current respiratory disorders and anything that occurred during his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also 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."). Evidence favorable to the claim includes a March 2006 opinion by a private physician who stated that the Veteran had COPD, which can include chronic bronchitis, and opined that his lung disorder could possibly be due to his war time injuries. The Board finds that this medical opinion is equivocal, and expressed in speculative language, and therefore does not provide the degree of certainty required for medical nexus evidence. See McLendon, supra. The June 2009 VA examiner stated that "it appeared" that the Veteran had bronchospasms that only occurred during the winter, and it was as likely as not that an exposure to a winter in 1952 severe enough for him to have frostbitten feet could lead to such a condition, and it was also as likely as not that his previous tobacco history could give him the exact same symptoms. This opinion was based entirely on the Veteran's reported history, as the claims file was not available. In an August 2009 addendum, after reviewing the claims file, the examiner opined that it was as likely as not that the Veteran's history of bronchitis and recurrent bronchospasm were as a result of exposure to weather when he was in military service in 1952, since similar conditions often have insults that leave the airways hyperreactive. He did not discuss the Veteran's intervening post-service medical history and exposures, and his opinion is not supported by a reasoned analysis. See Nieves-Rodriguez, supra. Evidence weighing against the claim includes medical records showing that the Veteran had a history of hay fever since childhood, and private medical records beginning in September 1982 reflecting that the Veteran had been a heavy smoker and had a severe cough since a respiratory tract infection in the winter of 1981. Moreover, pulmonary function tests in August 1982 were normal. There is no medical evidence of a diagnosis of a respiratory disorder prior to the 1980s, 30 years after service, when he was diagnosed with bronchitis. Some VA and private physicians have related the Veteran's recurrent cough to allergies. A March 2011 VA examiner diagnosed COPD and opined that it was more likely that the Veteran's current lung condition was due to long-term exposure to diesel exhaust fumes and the Veteran's tobacco usage than to cold exposure. In July 2011, a private physician indicated that the Veteran had seasonal bronchitis. In an August 2011 addendum, a VA physician opined that based on his review of the respiratory exam and pulmonary function test findings, he agreed with the impression that no definite link can be established between the Veteran's current respiratory condition and prior exposure to cold while he was in the military. On VA respiratory examination in April 2013, the VA examiner diagnosed COPD and chronic bronchitis. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. In considering the June and August 2009 VA examination and medical opinions, and the March 2011, August 2011, and April 2013 VA examinations and opinion, the Board affords greater weight to the April 2013 VA examination and opinion than the August 2009 opinion as it was based on a review of the claims file, the Veteran's reported history, the examiner's own medical expertise, and was consistent with the other evidence of record. The Board finds that the June and August 2009 VA medical opinions did not consider the private medical records dated in the 1980s showing an onset of bronchitis at that time, or the Veteran's demonstrated post-service environmental exposures during his occupation as a service station operator and wrecker driver. The March 2011 and August 2011 VA examiners also came to the same conclusion as the April 2013 examiner, i.e., that the current bronchitis and COPD were not likely related to a single reported episode of pneumonia in service. The April 2013 VA compensation examiner had the benefit of reviewing the Veteran's claims file and, thus, not only considered what is said to have occurred during service but also during the many years since. The opinion is well reasoned, detailed, and consistent with the other evidence of record. Prejean v. West, 13 Vet. App. 444 (2000). Most significantly, the April 2013 VA examiner provided explanation for his conclusions, whereas the June 2009 did not, only instead made a summary finding without adequate supporting rationale. The discussion of the underlying rationale is where most of the probative value of an opinion is derived. Indeed, review of the claims file does not substitute for a lack of a reasoned analysis and explanation for the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). See also 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 probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). The April 2013 VA examiner based his opinion on his clinical experience, the absence of a chronic respiratory condition in service, and the Veteran's own report that the onset of his chronic bronchitis was many years after service, in the 1960s. The examiner also indicated that the most common cause of chronic bronchitis and COPD is smoking cigarettes, and opined that the condition is less likely related to a single episode of pneumonia during his active duty period. Even acknowledging the Veteran's report of treatment for respiratory symptoms in service, the 2011 and 2013 VA examiners have disassociated any current respiratory disorder from that episode in service. These examiners provided medical opinions collectively to the effect that the current chronic bronchitis and COPD are unrelated to the events in service. These medical reports carry a great deal of probative value because the examiners are qualified to comment on the etiology of these claimed disorders and considered the Veteran's reported history as well as his post-service medical records, including the medical statements mentioned favorable to his claims. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). The post-service medical evidence of record also does not show evidence of complaints or treatment for a respiratory disorder until the 1980s; so not until approximately 30 years after the Veteran's separation from service. And while this, alone, is not altogether determinative or dispositive of whether he had a respiratory disorder during those several intervening years dating back to his service, it is nonetheless probative evidence tending to refute this notion. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, just not the only or sole factor); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability). The Board acknowledges the lay statements and testimony by the Veteran to the effect that he had recurrent bronchitis episodes since service. The Veteran is competent to make these proclamations. The Board cannot reject this lay testimony concerning this out of hand. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Ultimately, though, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). Moreover, to the extent his lay statements are attempting to ascribe his respiratory symptoms to a particular or specific diagnosis, including bronchitis or COPD, he is not competent to make this distinction, as this requires medical training. Colantonio, supra; Waters, supra; Jandreau, supra (lay persons not competent to diagnose cancer). Ultimately, the lay statements regarding a continuity of symptoms since service, even to the extent competent, are not credible as they are inconsistent with the medical evidence. Thus, these lay statements are not ultimately probative. As the preponderance of the evidence is against the claim for service connection for a respiratory disorder, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a respiratory disorder is denied. ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs