Citation Nr: 1334155 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-26 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a lung disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and C.B. ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Pursuant to 38 C.F.R. § 20.900(c), this appeal has been advanced on the Board's docket. The Veteran served on active duty from September 1955 to September 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2010 of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the claims file. In March 2013 the Board remanded the case for additional development. FINDING OF FACT A lung disability, asthma and chronic obstructive pulmonary disease, did not have onset in service, and is not otherwise related to an injury, disease, or event in service. CONCLUSION OF LAW The criteria for service connection for a lung disability, asthma and chronic obstructive pulmonary disease, have not been met. 38 U.S.C.A. §§ 1131, 5107 (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 2010. 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, VA records, and private medical records. The Veteran was afforded VA examinations to evaluate his claim in November 2010 and May 2013. The Veteran testified that the November 2010 examiner's opinion was inadequate as the examiner incorrectly believed that the Veteran had been exposed to fertilizer products in his postservice employment. The Board then ordered the May 2013 examination, which included the correct history. As this examination report is 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 report is 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 Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). 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). The showing of a chronic disease in service requires 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 as distinguished from credibility and weight, 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). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 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. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 treatment records contain no complaint, finding, history, treatment, or diagnosis of a lung disability, including asthma and chronic obstructive pulmonary disease. On separation examination in August 1959, the Veteran denied shortness of breath, asthma, or pain or pressure in the chest. The a chest X-ray was negative chest X-ray and the lungs and chest were evaluated as normal After service, the Veteran testified that he began experiencing symptoms of shortness of breath and a dry cough during service and that the symptoms have persisted since then. The Veteran stated he sought treatment in the late 1970s and he was found to have asthma and chronic obstructive pulmonary disease in about 1980. The Veteran stated that a retired chemist had told him that exposure to aviation fuel could cause asthma. In a written statement in April 2010, L.C.K., M.D., stated that the Veteran was a current patient with "decades of asthma history. The physician stated in the 1950s the Veteran worked for 48 months around aviation fuel, while in the Air Force. The physician expressed the opinion that a history of four years working around jet fuel and fumes likely contributed to the Veteran's asthma. In a written statement in July 2010, P.J.M., who has known the Veteran since 1957, stated that in 1957 the Veteran had no signs of breathing problems, but soon after the Veteran returned from he began having difficulty breathing. On VA examination in November 2010, the diagnosis was chronic obstructive lung disease. The VA examiner stated that chronic obstructive lung disease was more likely related to chronic tobacco smoking and occupational exposure to fertilizer and turf products. The Veteran disputed the VA examiner's opinion, pointing out that he was not directly exposed to fertilizer products as his job was in sales and he only dealt with bagged fertilizer. In May 2013, a VA physician, certified in pulmonary medicine, examined the Veteran. The Veteran gave a history of exposure to jet fuel fumes and jet exhaust fumes as a refueler in service. The Veteran denied having been bathed in fuel, ingesting fuel, or aspirating fuel. The Veteran stated that his breathing problems began shortly after service, but he had not sought treatment for 10 years or so. The Veteran stated that he had smoked about two packs of cigarettes a day for 35 years beginning in high school. The VA examiner noted that the Veteran had previously given a history of smoked three packs a day for 33 years. The diagnoses were asthma and chronic obstructive lung disease. The VA examiner stated that the claimed conditions were less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The VA examiner explained that: The Veteran had two primary processes, chronic obstructive lung disease caused by years of cigarette smoking, and asthma, a reactive airways disease and that the two diseases frequently occurred together. The VA examiner noted that the Veteran began having respiratory problems several years after service. The VA examiner stated that asthma may be triggered by allergies, pollen, fumes, dust, smoke, upper respiratory infections, perfumes or other odors, heart failure, and a long litany of other agents. The VA examiner stated that a major driving force of chronic asthma was cigarette smoking as cigarette smoke kept the airway linings constantly irritated and inflamed and so it was for the Veteran. The VA physician stated that exposure to stimuli such as fumes may precipitate an asthma attack, but does not cause asthma or create the disease process. The VA examiner noted that the association between cigarette use and chronic obstructive lung disease was overwhelming and epidemic in the U.S. and that the Veteran smoked between 2 to 3 cigarette packs a day for 30 to 35 years, which caused chronic bronchitis, inflammation of the airways, airway obstruction, and eventual anatomic breakdown and destruction of the lungs resulting in emphysema. The VA examiner stated that it was most likely the Veteran was asthmatic, but had not had enough stimuli to trigger an asthma attack until several years after service. The VA examiner stated that asthma in combination with years of smoking was finally enough to precipitate the clinical picture of symptomatic lung disease and while the Veteran quit smoking because of his pulmonary symptoms, chronic obstructive lung disease was already well established and that the overall clinical picture was a very common one of gradual pulmonary decline. As for exposure to hydrocarbons, such as aviation fuel, exposure can be devastating or fatal if ingested or aspirated directly into the lungs, but simply breathing the fumes was not sufficient to cause tissue changes. While exposure to the fumes or odor of jet fuel could conceivably trigger an asthma episode in an asthmatic, the Veteran did not have an asthma event until years after service. The VA physician stated although the fumes may trigger an asthma attack, there was no evidence that it aggravates or changes the overall natural history of the disease process. Similarly the Veteran's exposure to packaged fertilizer was minimal and less likely to be associated with the etiology of pulmonary disease. The VA expressed the opinion that it was less likely than not that asthma and chronic obstructive lung disease were associated with exposure to jet fuel and jet exhaust and more likely as not due to intrinsic asthma and results of smoking cigarettes for 35 years. The VA examiner stated that a review of the literature fails to find any evidence to support the claim that jet fuel fumes or jet exhaust fumes cause asthma or chronic obstructive lung disease, but the literature is overwhelming and fills libraries that smoking causes chronic obstructive lung disease and aggravates asthma. Analysis The Veteran's occupational specialty in service was fuel supply specialist. As the service treatment records do not show any complaint, symptoms, or treatment of a lung disability, and as the Veteran specifically denied lung problems, including asthma, on separation, service connection under 38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303(a) is not established. And chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply, because asthma and chronic obstructive lung disease are not chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply to a disease not listed in 38 C.F.R. § 3.309(a)). Although the current asthma and chronic obstructive lung disease were not affirmatively shown to have had onset in service under 38 C.F.R. § 3.303(a), and chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply, service connection may be granted for lung disability, first diagnosed after service, when all the evidence, including that during and after service establishes that the disease was incurred in service under 38 C.F.R. § 3.303(d). Lay evidence may serve to support a claim for service connection. The Veteran asserts that his lung disability is due to exposure to aviation fuel in service. The Veteran is competent to describe symptoms of shortness of breath or coughing, which are capable of lay observation. And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The question is whether the Veteran as layperson is competent to diagnose asthma or chronic obstructive lung disease or to offer an opinion on a causal relationship between the claimed disabilities and the events in service, that is, the "nexus" requirement to prove service connection. The diagnoses of asthma and chronic obstructive lung disease require medical evidence as the disabilities are not simple medical conditions that the Veteran or P.J.M. as lay person are competent to identify based on personal observation. And no factual foundation has been established to show that the Veteran is qualified through specialized education, training, or experience to diagnose asthma or chronic obstructive lung disease. Therefore to the extent the Veteran's lay evidence is offered as proof of the presence of asthma or chronic obstructive lung disease in service and since service and before the conditions were diagnosed after service, the Veteran's lay evidence is not competent evidence, and the lay evidence is not admissible as evidence and cannot be considered as competent evidence favorable to the claim. As for the Veteran's assertion that the asthma and chronic obstructive lung disease are related to inservice exposure to jet fuel fumes and jet exhaust fumes, the Veteran's assertion is an inference based on facts, that is, an opinion rather than a statement of fact. Furthermore, his testimony and statements to the effect that he had shortness of breath in service are contradicted by the service treatment records, which document no such complaints and the Veteran specifically denied such symptoms on separation from service. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the current lung disabilities and the events and circumstances of service. For these reasons, the Veteran lay opinion is not competent evidence of a causal relationship or nexus between the asthma and chronic obstructive lung disease and the events in service. Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. As the Veteran's lay evidence is not competent evidence on the material issues of fact, pertaining to a postservice diagnosis, applying 38 C.F.R. § 3.303(d), and medical causation, 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, statement, or opinion. 38 C.F.R. § 3.159. There is medical evidence favorable to the claim and medical evidence against the claim. The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). Dr. K.'s statement that the Veteran's history of four years working around jet fuel and fumes likely contributed to asthma is not supported by any rationale. Furthermore, it does not consider the Veteran's significant history of cigarette smoking. In contrast, the opinion of the May 2013 VA examiner contains a detailed history, a thorough discussion of the effect of cigarette smoking on the lungs, an explanation of the interplay between asthma and chronic obstructive pulmonary disease, and discussion of the lack of medical literature supporting the Veteran's assertions. The VA examiner's conclusions regarding the etiology of the Veteran's lung disability, specifically that it is related to a long smoking history and not to any inservice factor, including exposure to jet fuel fumes or jet exhaust fumes, is persuasive evidence against the claim. As the preponderance of the evidence is against the claim of service connection, there is no doubt to be resolved, and service connection for the claimed disability is not warranted. ORDER Service connection for a lung disability, asthma and chronic obstructive pulmonary disease, is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs