Citation Nr: 1328022 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 12-34 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lung disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from February to April 1951. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). The Veteran indicated in his December 2012 VA Form 9 that he did not wish to appear for a Board hearing. In March 2013, however, he expressed that he wished to appear for a Board hearing at a local VA office. The RO contacted the Veteran in June 2013 to clarify his desires and he stated that he wanted his file be sent to the Board for a decision. Under these circumstances, the Veteran's request for a hearing is considered withdrawn. See 38 C.F.R. § 20.700 (2012). 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 A chronic lung disorder was not manifested during active service and is not otherwise attributable to active service. CONCLUSION OF LAW A chronic lung disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in June 2011 VA advised the Veteran of the information and evidence needed to substantiate a claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) ; 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Analysis The Veteran appeals the denial of service connection for a lung disability. During his August 2011 VA examination, he asserted that he had pneumonia in service and that he had trouble breathing for the past 12 years. According to the Veteran, he quit smoking 35 years prior but had smoked a pack a day for 12 years. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be warranted 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). Notwithstanding any other provision of law, a veteran's disability shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service for purposes of this title on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran's service. 38 U.S.C.A. § 1103 (West 2002). Based on the evidence of record, the Board finds that the preponderance of the most probative evidence is against entitlement to service connection for a lung disability. To that end, service treatment records reveal a diagnosis of right lower lobe bronchopneumonia in March 1951. His upper respiratory infection, however, completely cleared days later. The lungs and chest were shown to be clinically normal during the April 1951 separation examination. Furthermore, no lung abnormality was found when examined post service in August 1951. A review of the record discloses that the Veteran's current lung disability first manifested decades post service. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The claims folder does not contain any competent evidence relating the Veteran's lung disability to service, and neither the appellant nor his representative has presented, identified, or even alluded to the existence of any such opinion. The Board has reviewed all service treatment records and all other medical records of record. These records do not include any opinion linking any current lung disability to service. Rather, the VA examiner in August 2011 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 stated that service treatment records show that the Veteran was diagnosed with pneumonia and was treated in 1951. The examiner noted documentation of a normal lung examination during the exit examination, and found no evidence of chronic lung disease during active service and after service. The Veteran's obstructive lung defect was found to be less likely secondary to his pneumonia in 1951, and the examiner opined that uncomplicated pneumonia does not lead to obstructive lung disease. Additionally, the examiner noted that the Veteran had a long history of smoking which he could explain the appellant's abnormal pulmonary function test results. As noted above, service connection cannot be granted for a disability related to in-service tobacco use. 38 U.S.C.A. § 1103. The Board assigns greater probative value to the opinion of the VA examiner. The August 2011 examination was conducted by a medical professional with the expertise to comment and opine on the etiology of the appellant's lung disorder. The examiner reviewed the record, which included the Veteran's contentions, and conducted a complete physical examination. The opinion is well reasoned and supported by the historical record. The Board acknowledges the Veteran's contentions that his in-service pneumonia led to a current lung disorder to include shortness of breath. While the appellant is competent to report shortness of breath and breathing difficulties, he is not competent to render an etiology opinion on a complex medical question as presented here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As the Veteran is a layperson without the appropriate medical training or expertise, he is not competent to render probative (i.e., persuasive) opinions on this medical matter. The Board finds that the issue at hand is far too complex a medical question to lend itself to the opinion of a layperson. In sum, the most probative evidence of record is devoid of a showing that the appellant's lung disability is related to service. Accordingly, service connection for a lung disorder is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for a lung disorder is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs