Citation Nr: 1334086	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  13-10 777	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana



THE ISSUE

Entitlement to service connection for chronic obstructive pulmonary disease and for asbestosis.


REPRESENTATION

Veteran represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

S. Coyle, Counsel





INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. 

The Veteran served on active duty from June 1951 to June 1955. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2012 of a Department of Veterans Affairs (VA) Regional Office (RO).
 
In September 2013, the Veteran did not appear for a hearing before the Board.  In the absence of good cause for failing to appear, the request for a hearing is deemed withdrawn. 


FINDING OF FACT

Chronic obstructive pulmonary disease and asbestosis are not currently diagnosed.

CONCLUSION OF LAW

The criteria for service connection for chronic obstructive pulmonary disease and asbestosis have not been met.  38 U.S.C.A §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). 

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 



Duty to Notify

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 

VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 

The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473   (2006). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). 

The RO provided pre-adjudication VCAA notice by letter in May 2012. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87   (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374   (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). 








Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA records. 

The Veteran was afforded VA examinations in June 2012 and in March 2013.  As the examination reports are based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination reports are adequate to decide the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts is required to comply with the duty to assist. 


REASONS AND BASES FOR FINDING AND CONCLUSION

Principles of Service Connection

A Veteran is entitled to VA disability compensation, that is, service connection, for a disability resulting from personal injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. § 1110 (wartime service). 





Generally, to establish entitlement to VA disability compensation, that is, service connection, a Veteran must show: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or 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.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).   

In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303.  

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).  

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a).  

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible.  Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).





Competency is distinguished from the credibility and weight of admissible evidence, which are factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  If the evidence is not credible, the evidence has no probative value. 
Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 

Evidence

The service personnel records show that the Veteran served aboard ship with duties in the engine room for more than one year. 

The service treatment records show that on entrance examination an X-ray showed vascular shadows in the peripheral lung zone.  A follow-up chest X-ray in August 1951 was read as negative chest.  In August 1954 and on separation examination in May 1955, chest X-rays were negative.  

After service VA records show that in November 2011 the Veteran complained of shortness of breath.  He gave a history of exposure to fumes in service.  A pulmonary function test was suboptimal.  On follow-up in January 2012, a pulmonary function test was incomplete, because the Veteran was unable to perform the test protocol.  In March 2012, the Veteran reiterated that his shortness of breath was the result of exposure to fumes in the Navy.  




On VA examination in June 2012, a chest X-ray was normal.  The Veteran was unable to complete the pulmonary function test.  The VA examiner stated that the Veteran suffered from shortness of breath of uncertain etiology.  The VA examiner stated the findings were completely inconsistent with chronic obstructive disease and X-rays were negative for asbestosis.  The VA examiner stated that there was nothing to suggest that the Veteran's symptoms were related to exposure to diesel fumes in the Navy.  

In March 2013, the VA examiner issued an addendum to his earlier opinion.  The VA examiner stated that the etiology of the Veteran's shortness of breath remained undiagnosed and that it was less likely than not related to any lung disease.  The VA examiner stated that the Veteran did not have obstructive lung disease, reactive airways disease, asbestosis, or restrictive lung disease.

Analysis

The service treatment records contain no complaint, finding, history, treatment, or diagnosis of chronic obstructive lung disease or asbestosis.  On the basis of the service treatment records alone, neither chronic obstructive lung disease nor asbestosis was not affirmatively shown to have been present in service, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not warranted. 

Also neither chronic obstructive lung disease nor asbestosis is a chronic disease listed in 38 C.F.R. § 3.309, and chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply and service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(b) (chronicity and continuity of symptomatology) is not warranted.  See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection under the regulation creating a presumption of service connection for ceratin chronic diseases manifesting during service and then again at any later date, 38 C.F.R. § 3.303(b), is available only for chronic diseases enumerated in the only regulation listing named chronic diseases, 38 C.F.R. § 3.309(a)).  


As for service connection based on an initial diagnosis after service, there is no evidence by X-ray, pulmonary function test, or clinical findings of either chronic obstructive lung disease or asbestosis and service connection under 38 C.F.R. § 3.303(d) is not warranted. 

To the extent the Veteran asserts that he has a pulmonary disability, the Veteran as a lay person is competent to identify a simple medical condition.  Jandreau, at 1377.  A simple medical condition is one capable of lay observation.  38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness).

Whether either chronic obstructive lung disease or asbestosis is present cannot be competently answered by the Veteran as a lay person based on mere personal observation, as the diagnosis falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience.  38 C.F.R. § 3.3159; Jandreau, at 1377.

Also neither chronic obstructive lung disease nor asbestosis is a type of condition under case law that has been found to be capable of lay observation.  See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); and see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis).


See also Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer).

Applying the guidance of current case law, chronic obstructive lung disease and asbestosis are more analogous to an internal disease process, such as rheumatic fever , rather than either flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg.  For this reason, chronic obstructive lung disease and asbestosis are not the type of conditions under case law that has been found to be capable of lay observation.

As the claimed disabilities are not capable of lay observation under Jandreau and by case law, the claimed disabilities are not simple medical conditions that are capable of lay observation.  

And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose chronic obstructive lung disease or asbestosis.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose a disability is not competent evidence). 

For these reasons, the Veteran's statements are not competent evidence on the question of the presence or diagnosis of chronic obstructive lung disease or asbestosis in service, since service, or currently, and the Veteran's statements are excluded, that is, not to be considered as evidence favorable to the claim. 

Also while lay evidence is also competent to report a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional, the Veteran has not submitted evidence of a medical diagnosis of chronic obstructive lung disease or asbestosis or evidence of a diagnosis of the claimed disabilities by a medical professional based on symptoms described by the Veteran. 



As the Veteran's lay evidence is not favorable to the claim, the Board looks to the medical evidence. 

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion. 38 C.F.R. § 3.159.

The competent medical evidence of record consists of the opinion of the VA examiner, who stated the findings were completely inconsistent with chronic obstructive disease and X-rays were negative for asbestosis.  The VA examiner stated that there was nothing to suggest that the Veteran's symptoms were related to exposure to diesel fumes in the Navy and symptoms of shortness of breath were less likely than not related to any lung disease and that Veteran did not have obstructive lung disease or asbestosis.  The Board finds the opinion VA examiner persuasive evidence that opposes, rather than supports, the claim. 

It is the Veteran's general evidentiary burden to establish all elements of the claim, including evidence of a current disability. 38 U.S.C.A. § 5107(a); Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009).  

In a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought.  In the absence of proof of present disability, there can be no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  And there is no evidence of the claimed disabilities at the time the Veteran filed his claim.  McClain v. Nicholson, 21 Vet. App. 319, 323 (2007).  










In the absence of competent evidence of either current chronic obstructive pulmonary disease or asbestosis, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b). 


ORDER

Service connection for chronic obstructive pulmonary disease or for asbestosis is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs