Citation Nr: 1324117 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 06-22 973 ) 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 residual of exposure to ionizing radiation or exposure to multiple chemicals during service, for accrued benefits purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from August 1947 to August 1967. He died in January 2010. The appellant, his spouse, was substituted as the claimant following his death. See 38 U.S.C.A. § 5121A (West 2002). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Muskogee, Oklahoma. During his lifetime, the Veteran testified at a hearing before a local hearing officer in September 2006. The Veteran also testified at a Travel Board hearing in Muskogee, Oklahoma, before the undersigned Veterans Law Judge in November 2007. Transcripts of the hearings are of record. Following the November 2007 Board hearing, the Board remanded this matter for additional development in April 2008. The matter was once again remanded by the Board in September 2009 for additional development, to include clarification of the prior medical opinion. The record indicates that the RO complied with the Board's September 2009 Remand requests. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). 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 Veteran's COPD was not related to his period of active service. CONCLUSION OF LAW COPD was not incurred in active service. 38 U.S.C.A. §§ 1103, 1110, 1112, 1131, 5107, 5121A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.311, 3.1000 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties 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, 5126 (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; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In this case, the Veteran's active service status has been substantiated. In April 2005 and April 2008 letters, the RO provided the Veteran with notice that informed of the evidence needed to substantiate the claim. The letters also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letters further told him to submit relevant evidence in his possession. As the appellant is being substituted in this case, the notice to the Veteran provides the required notice in this case, and no further VCAA notice is required on the substituted issue. Nevertheless, in August 2010 VA provided a notice letter to the appellant in which it advised the appellant that service connection had been denied for a lung condition/COPD because of no diagnosis of radiation related disease, and there was no medical evidence relating the lung condition to radiation exposure, coal dust, carbon tetrachloride, or hydrogen ammonia fumes. The letter advised the appellant to submit evidence that shows a disability was incurred during service. An attachment further notified the appellant what type of evidence was needed to substantiate the three elements of service connection for a disability for which service connection had not been granted during the Veteran's lifetime. The Court has also held that 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The April 2008 and August 2010 letters provided the Veteran and/or the substitute appellant with notice as to the disability rating and effective date elements of the claim. VA has a duty to assist an appellant in the development of the claim. This duty includes assisting in the procurement of service treatment (medical) records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records, service, VA, and private, have been obtained and associated with the claims folder insofar as possible. The Board notes that a portion of the Veteran's service personnel records were noted to be unavailable as a result of fire-related service; however, the Veteran supplied those records which were in his possession. As indicated above, this matter was remanded in April 2008 and September 2009 to obtain opinions as to the etiology of the Veteran's COPD and its relationship, if any, to his period of service. In accordance with the April 2008 remand, an opinion was obtained in May 2009; however, there were some discrepancies in the opinion which needed clarification, so the matter was remanded in September 2009 to obtain an addendum opinion. The requested opinion was obtained in April 2012, which was responsive to the requested opinions along with a rationale to support those opinions, thus complying with the Board remand order. The appellant has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments set forth by and the opportunity to appear at a hearing if so desired. As noted above, the Veteran appeared for both local and travel Board hearings in conjunction with the claim prior to his death. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the appellant spouse have been met, and no further action is necessary to notify or assist the appellant in substantiating this claim. Service Connection for COPD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 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 all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The claimed disorder of COPD at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) and 38 C.F.R. § 3.309(a) do not apply to the non-chronic diseases. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran maintained during pursuit of his claim that he developed COPD as result of exposure to chemicals inservice, including carbon tetrachloride and/or hydrogen ammonia, through the performance of his duties as a weatherman. In the alternative, he contended that he developed COPD as a result of exposure to coal dust while stationed in Chanute Field, Illinois, in 1947-48. Finally, the Veteran had also indicated that he developed COPD as result of exposure to radioactive fallout from nuclear testing in Nevada in the spring of 1952 and 1953, while performing duties as a weather observer in St. George, Utah. Service treatment records reveal no findings or diagnoses of COPD in service. A chest x-ray performed in January 1957 did reveal the presence of an azygos lobe, with no indication of active process. At the time of the Veteran's March 1967 service retirement examination, normal findings were reported for the lungs ad chest. On the March 1967 service separation report of medical history, the Veteran checked the "no" boxes when asked if he had or had ever had shortness of breath, pain or pressure in the chest, asthma, or a chronic cough. The record also does not contain complaints or findings of lung problems in the years immediately following service. The medical evidence of record demonstrates that the Veteran was first diagnosed with COPD in 2004, many years following his release from service. VA treatment records associated with the claims folder reveal that on numerous occasions the Veteran reported he had at least a 3/4 pack per day smoking history for close to 30 years before quitting in the early 1980s. Also of record is that the Veteran had a history of second hand smoke up until July 2004. In support of the claim, the Veteran submitted numerous articles pertaining to COPD and its causes. The Veteran also submitted a November 2004 statement from R.R., M.D., who indicated that he had reviewed information given to him by the Veteran and had had a conversation with Dr. G. regarding the Veteran's concerns about exposure to chemicals in the military. Dr. R. indicated that the findings of pulmonary disease were non-specific, meaning that no definite etiology was going to be conclusive. Dr. R. wrote that neither he nor Dr. G. were aware that the specific chemical that the Veteran was exposed to was a definite cause of the lung disease that the Veteran had, though it could be. He indicated that, all in all, it was difficult to make a direct connection with certainty. In a February 2005 statement, when asked if radiation, carbon tet, coal dust or the mixing of chemicals to make hydrogen brought on the COPD condition, Dr. R. indicated that he could not say for sure and that it could not be ruled out. He indicated that VA needed to get an environmental specialist. He wrote that COPD was usually found in elderly women that had smoked all their lives. Dr. R. also indicated that it was very doubtful that the condition was congenital to be considered pre-existing before the Veteran went into the military. At the September 2006 personal hearing at the RO, the Veteran testified that he worked in the weather department in service. He stated that he took observations, plotted maps, and sent up weather balloons. He also testified that he worked with teletype and fax machines. He stated that he mixed various chemicals to create caustic soda. The Veteran reported mixing hydrogen and using carbon tetrachloride for cleaning the teletype and fax machines. He indicated that there were no safety precautions. The Veteran stated that he was provided with no breathing protection when mixing the hydrogen and was told to stand upwind. He stated that the machines were cleaned in a closed room. The Veteran indicated that he was assigned to weather duties his entire period of service. As to coal dust exposure, the Veteran testified that he went to weather observation school in 1947-1948 in Chanute, Illinois, which was heated with coal ovens. He reported that every barracks had its own furnace and coal dust was on everything. He stated that some mornings you could wake up and blow coal dust off your nose. The Veteran further indicated that he was part of a mobile squadron through the late 1940s and early 1950s which supported atomic tests in Nevada. He indicated that he was part of the balloon team in St. George, Utah, which took major fallout from the testing. The Veteran also submitted an October 2006 letter from his private physician, E. S., M.D., indicating that the Veteran had been evaluated in his office in March, July, and October 2006. Dr. S wrote that the Veteran had severe COPD, that the Veteran had a remote smoking history but was never a heavy smoker and quit in 1980, and that the Veteran's pulmonary function abnormalities were far in excess of what would be expected given his tobacco exposure. Dr. S. further indicated that there were legitimate concerns as to additional exposure to damaging agents while the Veteran was in the military, particularly ammonia and caustic soda. Dr. S. opined that it was likely that these exposures contributed significantly to the development of the Veteran's COPD. At the November 2007 Travel Board hearing, the Veteran again reported being exposed to coal dust while in Chanute Field, Illinois, in 1947-48. He also testified as to having mixed caustic soda and ferrous silicon and water into hydrogen for generators, that no breathing apparatus was provided, and he did this for five ears. He also reported atomic exposure while at St. George, Utah, in the Spring of 1952 and 1953, supporting atomic testing in Nevada with weather balloon readings. The Veteran testified to having punched holes in 200 cans of hydrogen while in Okinawa in order to dispose of them. The Veteran further testified as to being exposed to ammonia fields as a result of the use of the Ozelot machine beginning in the late 1950's. He also stated that in every weather station that he had worked carbon tetrachloride was used to clean plastic parts and teletype and facsimile machines. As to the atomic testing, the Veteran indicated that he was 100 miles downwind of the test site using weather balloons to test the fallout. The Veteran stated that he had been involved in 12-15 of these tests. The Veteran indicated that St. George was over 100 miles from the test site. He reported that he had not been given any dosimeter badges. Following the November 2007 Board hearing, as noted above, the Board remanded this matter for further development in April 2008. In conjunction with the remand, the Veteran was afforded a VA examination in May 2009. At the time of the VA examination in May 2009, the Veteran reported that he started having trouble breathing during the Spring and Fall seasons about 20 years prior, and that he had pneumonia a few times over that period. He stated that about five years prior he passed out and was referred to a pulmonologist, who diagnosed him as having COPD. The Veteran reported that he was a chronic tobacco smoker for about 25 years and used to smoke one pack of cigarettes per day until he quit in 1980. Following examination in May 2009, the VA examiner opined that the Veteran's COPD was less likely than not caused by or a result of alleged in-service chemical exposure that would have ended in 1967. He opined that, instead, the Veteran's COPD was due to a history of chronic tobacco smoking for about 25 years of one pack per day (according to Springer Clinic and VA records about 30 years average two packs per day). In its September 2009 remand, the Board noted some discrepancies in the length of the Veteran's military service and the report of the May 2009 VA examiner, to include the number of years of inservice chemical exposure, noting that the report stated that the Veteran had been in the service for two years. The Board also noted the Veteran's reported smoking history contained in the record, his exposure to second hand smoke until July 2004, and the chemicals that he was exposed to in service, including coal dust, carbon tetrachloride, caustic soda, ferrous silicon, calcium hydride, and hydrogen ammonia. For this reason, in the September 2009 remand, the Board requested that the May 2009 VA examiner offer opinions as to the most likely etiology of the Veteran's COPD, including whether it was at least as likely as not that COPD was related to alleged in-service chemical exospore (noted above) from 1947 to 1967. In January 2010, the Veteran died. The death certificate lists the immediate cause of death as respiratory failure of weeks duration, due to or as a consequence of chronic obstructive lung disease, due to or as a consequence of caustic chemical exposure and tobacco use. The death certificate was signed by Dr. E. S. In April 2012, the May 2009 VA examiner provided an additional report. The examiner indicated that the Veteran's claims folder had been reviewed, which included service treatment records (STRs), VA and private medical records, the October 2006 letter from Dr. S., and the May 2009 VA examination report. The examiner indicated that the Veteran's STRs were negative for any treatment for a respiratory condition. The examiner further noted that the March 1967 service separation examination was negative for any lung condition. It was noted that the January 1957 chest x-ray revealed an Azygos lobe but was otherwise negative. The examiner further observed that an August 2005 progress note revealed that a diagnosis of COPD had been made over a year ago and that X-rays performed in August 2005 had revealed hyperinflated lungs consistent with COPD. The VA examiner also noted the November 2004 letter to the Veteran from Dr. R. which indicated that neither he nor Dr. G. were aware that the specific chemical which the Veteran was exposed to was a definite cause of the lung disease which the Veteran had, though it could be. The examiner further observed that, from a review of the record, the Veteran had been smoking about 30 years until 1983, 2 packs per day for the last 10 years, and that he had been exposed to second hand smoke until July 2004. The VA examiner in April 2012 indicated that, after reviewing the claims folder, it was his opinion that the most likely etiology of the Veteran's COPD was his chronic tobacco smoking for about 30 years until 1983 and the second hand smoking until July 2004. The VA examiner noted that according to "UpToDate" cigarette smoking was overwhelmingly the most important risk factor for COPD. The VA examiner also opined that the Veteran's COPD condition was less likely related to the alleged exposure of the chemicals to include ammonia and caustic soda which ended in 1967 because there was no evidence that the Veteran had any lung disease until 2004 when he was diagnosed with COPD. The VA examiner reasoned that, if there were any connection with the alleged exposure to chemicals, the Veteran's lungs would have been affected while he was in service or soon after service discharge in 1967. The VA examiner observed that, based upon the history of tobacco smoking for about 30 years, tobacco smoking was the most likely cause of the COPD. The VA examiner again noted that according to "UpToDate" cigarette smoking was overwhelmingly the most important risk factor for COPD. The Board first points out that, with respect to the Veteran's smoking history, to the extent that tobacco use may be a causative factor in the development of the Veteran's current lung disorder, service connection may not be granted on the basis of tobacco use, even if such tobacco use began in service. See 38 U.S.C.A. § 1103. After reviewing all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran's COPD did not begin during service. In this case, the Board finds not to be credible the Veteran's statements that he made during his life in support of the claim for VA compensation that he experienced symptoms of COPD during service and after service. The weight of the competent and credible evidence shows no COPD/lung disorders in service or during the years immediately following service; COPD is not shown for 37 years after service until 2004. The Board finds that the Veteran's more recent history and statements to the effect that he had COPD in service and for the years after service prior to 2004, which he made pursuant to the current claim for service connection (compensation), are inconsistent with, and outweighed by, other more contemporaneous evidence that shows no COPD in service or for years after service. The unfavorable evidence includes that the service treatment records do not reveal any complaints or findings of lung problems. At the time of the March 1967 service separation examination, normal findings were reported for the lungs and chest. Moreover, on the March 1967 report of medical history the Veteran checked the "no" boxes when asked if he had or had ever had shortness of breath, pain or pressure in the chest, chronic cough, or asthma; therefore, both the lay history/complaints and medical findings show no COPD/lung disorder or symptoms in service. The Veteran did not give a history of COPD/lung problems in service, and there was no reference to any lung problems during service. The Veteran also did not claim service connection for COPD for many decades following service. The Board next finds that the weight of the competent and credible evidence demonstrates that the Veteran's current COPD is not related to service, including as a result of radiation exposure, chemicals, or coal dust. As to the claim that radiation exposure from atomic testing was the cause of the current COPD, the Board notes that diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d)(2) do not include COPD. If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one of the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), a veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. The Veteran's COPD, likewise, is not listed as a "radiogenic disease" under 38 C.F.R. § 3.311 to warrant special development including radiation exposure estimates and medical opinion. Ashe claim for COPD is not implicated by the presumptive provisions of 38 C.F.R. § 3.309(d) or § 3.311, the only remaining theory of entitlement is direct service connection. See Combee v. Brown, 34 F.3d 1039, 1043-44. As to the assertion that the Veteran's COPD was related to the claimed radiation exposure in service, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran was not, and the appellant is not, competent to address etiology in the present case. The Veteran did not have, and the appellant does not have, the requisite training or expertise to render an opinion as to the etiology of any COPD, including the question of whether it was related to the claimed in-service radiation exposure. Moreover, there are many complex factors or contributors to COPD not related to radiation exposure, which the Veteran did not have, and appellant does not have, the requisite training to address. The Veteran and appellant were notified of the necessity to provide a competent nexus opinion between any claimed COPD and radiation exposure, and such opinion has not been provided. Moreover, there have been no post-service treatment records associated with the claims folder that demonstrate a relationship between COPD and the claimed radiation exposure. The Board does note that, in the February 2005 statement, when asked if radiation brought on the COPD condition, Dr. R. indicated that he could not say for sure and that it could not be ruled out. A statement such as this, which is couched in speculation, is of no probative value and cannot support the claim. See generally Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992)(medical evidence that is speculative, general or inconclusive in nature cannot support a claim). As to the assertion that the Veteran made that his COPD is related to exposure to coal dust while in Chanute, Illinois, during the Winter of 1947-48, this question of causation again extends beyond an immediately observable cause-and-effect relationship and, as such, neither the Veteran nor the appellant was competent to address etiology in the present case. The evidence does not show that the Veteran or the appellant had the requisite training or expertise to render an opinion as to the relationship, if any, between COPD and the claimed in-service coal dust exposure. Moreover, as to the many complex factors or contributors to COPD not related to coal dust exposure, the Veteran did not have, and the appellant does not have, the requisite training to opine on such question. The Veteran and appellant were notified of the necessity to provide a competent nexus opinion between any claimed COPD and coal dust exposure, and no such opinion was offered. Moreover, there have been no post-service treatment records associated with the claims folder which demonstrate a relationship between any claimed COPD and coal dust exposure. In his February 2005 statement, when asked if coal dust brought on the COPD condition, Dr. R. indicated that he could not say for sure and that it could not be ruled out. As noted above, a statement such as this, which is couched in speculation, is of no probative value and cannot support the claim. Exposure to coal dust as a cause of COPD was also not addressed by Dr. S. in either the October 2006 letter or the January 2010 death certificate. The VA examiner, when rendering his opinion, specifically opined that the Veteran's COPD was less likely related to the alleged in-service exposure to chemicals that ended in 1967 because there was no evidence that he had any lung disease until 2004. The VA examiner noted that, if there had been any connection with the chemical exposure, the lungs would have been affected while in service or soon thereafter. The Board is assigning greater probative value to the April 2012 VA examiner's opinion that the Veteran's COPD was not related to coal dust exposure. The examiner's opinion was based upon a more thorough review of the evidence, including from the claims folder, and a comprehensive examination of the Veteran. The examiner provided detailed rationale as to why it was less likely that the Veteran's COPD was related to coal dust exposure. The VA examiner reviewed the entire claims file, which at the time included the service treatment records, private and VA treatment records, statements from private physicians, the Veteran's death certificate, and statements from the Veteran. The examiner in April 2012 rendered an opinion that was supported by detailed and complete rationale that was based on an accurate history. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact, or that he relied on any inaccurate fact. As to the assertion that COPD arose from exposures to chemicals in the performance of his in-service duties as a weather person, to include exposure to tetrachloride, ammonia, and caustic soda, during his lifetime, the Veteran submitted several articles/treatises in support of his claim. In an article entitled Generator ML-185, received in February 2005, it was noted that the generator was used to fill balloons by mixing fero-silicon with caustic soda and water. There was no indication as to whether there were any health side effects caused by the mixing. The Veteran also submitted an article entitled "Chemical Exposure Bill in House" which reported that for many years Carbon Tetrachloride was commonly used as a cleaning solvent. It was noted that an attempt was being made to pass a bill to allow service connection for disability resulting from use of this chemical for any person who had served 90 days or more in the military. While this confirms that this chemical was used in service, the article does not address what, if any, side effects arose out of its use. There was also no indication that use of this chemical led to the development of COPD. Along with the June 2006 substantive appeal, the Veteran also submitted several articles in support of the claim. In an article from the Lung Association, entitled "Smoking and Tobacco" it was noted that non-smokers had a much lower risk of getting dozens of smoke-related diseases, including COPD. In an additional article entitled "Pulmonary" while discussing several theories of the causes of COPD, it was noted that tobacco smoke was the primary cause of COPD. In an article from oqp.med.va.gov., treatment for COPD was discussed. In an article from pulmonary channel.com., entitled "COPD" the causes of COPD were set forth, with the article indicating that smoking tobacco caused 80 to 90 percent of the cases of COPD. In an article from defense link.mil., entitled "Chronic Obstructive Pulmonary Disease" different forms of lung disease were discussed, along with symptoms and treatment. Finally, in an article entitled "Chronic Diseases" from Health Services and Development Research, the way VA cared for lung diseases was addressed. In September 2007, the Veteran forwarded an article entitled "Hazardous Substance Fact Sheet" which addressed the effects of Calcium Hydride. While the article noted that this chemical could irritate the lungs causing shortness of breath and/or coughing, with higher exposures causing a build-up of fluid in the lungs (pulmonary edema), with severe shortness of breath, there was no indication of the long lasting effects and no reference to the chemical causing COPD. Moreover, the article enforces the theory of an almost immediate impact on the lungs as opposed to lung problems developing many years later. In August 2009, the Veteran forwarded an article from chem.tamu.edu., entitled "Ammonia Solution-Strong" which discussed the side effects from inhalation, again noting almost immediate effects with inhalation but not indicating that the chemical resulted in the development of COPD. The Veteran also forwarded an article from Dow Chemical entitled "Material Safety Data Sheet" discussing caustic soda, the impact of the chemical with skin and eye contact, and the notice to avoid breathing the chemical as well as the immediate impact from the contact. There was no indication that the chemical caused or led to the development of COPD. In sum, the above articles, while addressing the causes of COPD and the health effects caused by the chemicals used by the Veteran in service, do not provide a causal link between the Veteran's COPD and the chemicals to which he was exposed to in service. As to the causes of COPD, the overwhelming majority of the articles addressing COPD linked COPD to cigarette smoking. As to the chemicals, there is no indication in any of the articles that exposure to them can result in COPD. Moreover, the side effects appear to be immediate, which would support the VA examiner's opinion that the Veteran's COPD that developed many years after service in 2004 was less likely a result of the Veteran's exposure to chemicals, which ended in 1967. As to Dr. S.'s opinion that exposure during service to damaging agents, particularly ammonia and caustic soda, contributed significantly to the development of the COPD, the Board notes that Dr. S.'s opinion is based upon factually inaccurate information supplied by the Veteran, which is inconsistent with the more contemporaneous, probative, and accurate evidence of record. Dr. S. indicated that the Veteran was never a heavy smoker and quit in 1980 and that his pulmonary function abnormalities were far in excess of what would be expected given his tobacco exposure. The history contained throughout the claims folder, including that provided by the Veteran, demonstrates that the Veteran was a heavy smoker for close to thirty years, consuming at least 3/4 pack per day of cigarettes during this time period, with a two pack per day history for the last 10 years, prior to quitting in the early 1980s. The record also reveals a history of second hand smoke until July 2004. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal, 5 Vet. App. at 461; Sklar v. Brown, 5 Vet. App. 140 (1993). The Board further notes that the Court has repeatedly declined to adopt a "treating physician rule" that would require giving additional evidentiary weight to the opinion of a physician who treats the veteran regularly. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Harder v. Brown, 5 Vet. App. 183, 188 (1993); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); Chisem v. Brown, 4 Vet. App. 169 (1993). Likewise, the death certificate prepared by Dr. S. citing to caustic chemical exposure is also of little probative value as it was based upon a history that has been shown to be factually inaccurate. The Board is assigning greater probative value to the April 2012 VA examiner's opinion that the most likely cause of the Veteran's COPD was his tobacco smoking, and that it was less likely related to the alleged exposure to chemicals, including ammonia and caustic soda, which ended in 1967, with no evidence of lung disease until 2004. The April 2012 VA examiner's opinions were based upon a more thorough review of the evidence, including from the claims folder, and a comprehensive examination of the Veteran. The examiner provided detailed rationale to support the opinion, including citing to medical treatises to support this position. The entire claims file, which at the time included the service treatment records, private and VA treatment records, private medical opinions, and statements and testimony from the Veteran and his representative, was reviewed. Based on all the evidence, the examiner in April 2012 rendered an opinion that was supported by detailed and complete rationale. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact, or relied on any inaccurate fact. Thus, the Board finds the April 2012 VA examiner's opinion to be the most probative evidence of record. In written argument submitted in June 2013, the Veteran's representative reasoned that COPD had two distinct and prevalent causes, smoking and genetic predisposition. He stated that the Veteran had a genetic irregularity that could have been aggravated by his service and the conditions surrounding it. The representative indicated that the Veteran had been diagnosed with an Azygos lung in service which was accompanied by an Azygos vein. He stated that this was hereditary. The representative also noted that the Veteran suffered from a venous condition which was suggested as a thrombophlebitis during service. The representative requested that the matter be remanded to have the genetic irregularities of record reviewed by a specialist as a plausible causation. When determining whether an examination is warranted under 38 U.S.C.A. § 5103A(d), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-79. The only evidence indicating that the COPD may be of a genetic predisposition that was aggravated by service is the representative's own conclusory generalized statements which are contradicted by the remaining objective and medical evidence of record, to include the February 2005 statement from Dr. R. that it was very doubtful that his condition was congenital. In addition, there is competent medical evidence of record as to the etiology of the Veteran's COPD. The suggestion that the COPD was somehow due to a genetic predisposition or genetic irregularity manifested in service by Azygos lung and Azygos vein or thrombophlebitis does not advance the appellant's claim, as it only asserts that a congenital or developmental disorder, rather than an in-service injury or disease, is the cause of the COPD. Such hereditary, that is, congenital or developmental defects, are not diseases or injuries as such within the meaning of applicable law, and are not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9 (2012). See Winn v. Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997), and cases cited therein. See also VAOPGCPREC 82-90 (a reissue of General Counsel opinion 01-85 (March 5, 1985), which in essence interpreted that a disease considered by medical authorities to be of congenital, familial (or hereditary) origin must, by its very nature, have pre-existed a claimant's military service). However, the VA General Counsel has further interpreted that if, during service, superimposed disease or injury occurs, service connection may be warranted for the resultant disability. See Jensen, 4 Vet. App. at 306-307, citing Hunt, 1 Vet. App. 292; VAOPGCPREC 67-90. The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defect" would be definable as a structural or inherent abnormality or condition that is more or less stationary in nature. 38 C.F.R. § 3.303(c) In addition, 38 C.F.R. § 3.303(c) provides that there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles the existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. This regulation also states that where there is the notation or discovery during service of such residual conditions, such as fibrosis of the lungs or congenital malformations, with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they pre-existed service. In this case, there is no indication of in-service injury, including no evidence of superimposed disease or injury. Even if the Veteran's COPD were deemed to have pre-existed service, which has not been shown, there was no worsening of the COPD, as evidence by no treatment for a lung disorder during service and normal findings for the lungs and chest on separation. In sum, the preponderance of the evidence weighs against a finding that any current COPD is related to the active service, to include by way of exposure to ionizing radiation or exposure to multiple chemicals during service, for accrued benefits purposes. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for COPD, claimed as a residual of exposure to ionizing radiation or exposure to multiple chemicals during service, for accrued benefits purposes, is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs