Citation Nr: 1341460 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 08-13 110A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a disability manifested by shortness of breath due to exposure to asbestos. 2. Entitlement to service connection for a disability manifested by a loss of sense of smell. 3. Entitlement to service connection for residuals of a back injury. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from December 1946 to December 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. On January 27, 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of that hearing is associated with the claims file. The Board notes that the instant matters have all been subject to prior actions by the Board. In a March 2011 decision, the Board denied service connection for disabilities manifested by shortness of breath and by a loss of sense of smell and remanded the issue of whether new and material evidence had been submitted to reopen a previously denied claim of service connection for residuals of a back injury for further development. The Veteran appealed the denials of service connection to the United States Court of Appeals for Veterans Claims (Court) and the agency of original jurisdiction (AOJ) completed the development request with respect to the remanded issue and returned that matter to the Board. In an April 2012 decision, the Board "reopened" the Veteran's previously denied claim of service connection for residuals of a back injury and remanded the underlying claim for service connection for further development. That same month, the Veteran's representative and VA's General Counsel filed a Joint Motion with the Court to vacate the Board's denials of service connection for a disabilities manifested by shortness of breath and by a loss of sense of small and to remand those matters, which was granted by the Court in May 2012. The basis for the Joint Motion was that the Board had erred in failing to ensure compliance with 38 C.F.R. § 3.103(c)(2), which imposes, inter alia, two distinct duties on VA employees who conduct hearings in conjunction with a claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010) (holding that the Board hearing officer has the duty to explain fully the issues on appeal and to suggest the submission of evidence that may have been overlooked); 38 C.F.R. § 3.103(c)(2) (2013). All three matters were then again before the Board in March 2013, at which time they were remanded for further development. Upon completion of that development, the AOJ issued a July 2013 supplemental statement of the case (SSOC) wherein it denied service connection for a disabilities manifested by shortness of breath and by a loss of sense of smell, and for residuals of a back injury. As will be discussed in further detail below, the Board finds that actions taken on remand from the Court have satisfied the Board's duties under 38 C.F.R. § 3.103(c)(2) such that the Board may proceed with adjudication of the Veteran's claims of service connection for disabilities manifested by shortness of breath and by a loss of sense of smell. Further, given certain inadequacies in the reports of a VA examination afforded to Veteran in connection with his claim of entitlement to service connection for residuals of an in-service back injury, the Board requested an independent medical expert (IME) opinion in October 2013. The IME opinion was returned to VA in November 2013 and the Veteran's claim of service connection for residuals of an in-service back injury is now before the Board for final appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran does not have a disability manifested by shortness of breath that is attributable to his military service, including as due to exposure to asbestos. 2. The Veteran does not have a disability manifested by a loss of the sense of smell that had its onset in or is otherwise related to his military service. 3. Resolving reasonable doubt in the Veteran's favor, the Veteran's degenerative joint disease (DJD) of the lumbar spine is related to service. CONCLUSIONS OF LAW 1. A disability manifested by shortness of breath, to include as due to asbestos exposure, was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. A disability manifested by a loss of the sense of smell was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 3. Resolving doubt in the Veteran's favor, DJD of the lumbar spine were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance At the outset, the Board notes that given the favorable determination with regard to the Veteran's claim of service connection for residuals of a back injury, its discussion of VA's compliance with its duties to notify and assist will be limited to the claims denied herein. The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a 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). After receiving the Veteran's service connection claims, the RO sent to him an August 2006 letter notifying him of the evidence required to substantiate his claims. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include private medical evidence. The Veteran was also notified of how VA determines disability ratings and effective dates. As determined by the Board in its March 2011 decision, the August 2006 VCAA notice letter provided to the Veteran satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Notably, the parties' Joint Motion included no reference to the Board's finding in this regard, nor does the Court's order indicate vacatur of that portion of the Board's decision that found compliance with VA's duty to notify. Upon review of the August 2006 notice letter, the Board is still satisfied that it complies with the requirement of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) and afforded the Veteran a meaningful opportunity to participate in the development of his claims. Thus, the Board concludes that the duty-to-notify requirements were satisfied. Regarding the duty to assist, the Board concludes that the duty to assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) have been satisfied. Evidence associated with the Veteran's claims folder includes his VA treatment records, private treatment records, and lay statements from the Veteran. The Board notes that the Veteran's service treatment records (STRs) have been presumed to have been destroyed in a fire at the National Personnel Records Center and that his records from the Social Security Administration (SSA) are unavailable. As previously determined by the Board in its March 2011 decision, all required efforts to obtain, and to report the nonexistence of, any such records have been undertaken. Again, the parties' Joint Motion did not reference any additional efforts that the Board should have engaged in to obtain these records. The Veteran has not alleged that there is any additional outstanding available evidence pertinent to the matters currently before the Board that VA should have obtained and the Board is also unaware of any such evidence. As noted in the introduction, the Veteran was afforded a Board hearing in July 2011. During his hearing, the Veteran testified that "over the years," he had received treatment from multiple private clinicians related to his loss of sense of smell and shortness of breath. As indicated in the parties' Joint Motion, the Board erred when it did not then suggest to the Veteran that he obtain a written statement from any private clinician regarding an association between his claimed condition(s) and service. See Bryant, supra; 38 C.F.R. § 3.103(c)(2). In September 2012, the Veteran and his attorney were informed regarding the Court's actions and were afforded an opportunity to submit additional evidence in support of the remanded claims. The Veteran's attorney then requested a complete copy of the Veteran's claims folder, as well as an extension of time in which to submit additional argument or evidence. Additional evidence was thereafter submitted; however, that evidence pertained to the Veteran's back claim. Evidence relevant to the Veteran's claims of service connection for disabilities manifested by a loss of sense of smell and by shortness of breath was not received. In March 2013, the claims of service connection for disabilities manifested by a loss of sense of smell and by shortness of breath were remanded by the Board specifically for the AOJ to attempt to obtain treatment records from the aforementioned private clinicians. In May 2013, the Veteran was sent a letter wherein he was requested to identify the name, address, and dates of treatment for any private clinician from whom he had reportedly received treatment related to his shortness of breath and/or loss of sense of smell, and to sign the necessary authorizations for release of such private medical records to VA. The Veteran was also informed that he could submit a statement in support of his claim from a medical advisor of his choice. The Veteran failed to provide any additional information or evidence in response to the AOJ's May 2013 letter. Upon review of the above actions, the Board finds that no further action is needed to comply with 38 C.F.R. § 3.103(c)(2) and the parties' Joint Motion or with the Board's prior remand, especially given that "the duty to assist is not always a one-way street," Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), and it is the Veteran who is ultimately responsible for providing private medical evidence to VA. Further, the Veteran has been informed regarding the lack of nexus evidence in his case and the Veteran's current representative clearly understands the need for the Veteran to submit nexus evidence, as illustrated by the arguments made to that end in the Joint Motion which brought the issue to the present point. The Board has considered whether VA examinations were required in connection with the Veteran's claims for service connection for disabilities manifested by a loss of sense of smell and/or by shortness of breath under the duty-to-assist provisions codified at 38 U.S.C.A § 5103A(d) and by regulation found at 38 C.F.R. § 3.159(c)(4). In accordance with those provisions, a medical opinion or examination is required if the information and evidence of record does not contain sufficiently competent medical evidence to decide the claim, but there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The evidence of record is such that the duty to obtain medical examinations was not triggered in this case. Although the Veteran is certainly competent to testify as to the presence of observable symptoms, such as a loss of sense of smell and/or shortness of breath, there is no competent and credible evidence to suggest that those symptoms may be associated with the Veteran's service. Notably, the Veteran first filed for VA disability compensation in April 1982. However, there is no mention of a disability manifested by a loss of sense of smell or by a shortness of breath until the Veteran's filed his claim in June 2006, despite the fact that the Veteran has alleged experiencing such symptoms since service. A February 1983 private treatment record indicates that the Veteran had undergone a physical examination in July 1982, during which he complained of back pain, left shoulder pain, headaches, and trouble sleeping. There is no mention of breathing problems or an inability to smell in this or any other private treatment record dated in the 1980s. The VA treatment records also fail to indicate that the Veteran has experienced a shortness of breath or an inability to smell since service. Accordingly, the Board finds that there is no credible evidence of either the presence of disability exhibited by shortness of breath or loss of sense of smell in service or continuity of symptomatology so as to warrant a medical examination in this case. See McLendon, 20 Vet. App. at 83 (holding that "credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation" may indicate that a current disability "may be associated" with military service). Further, none of the medical evidence of record has suggested that the Veteran's suffers from disabilities manifested by a loss or sense of smell or by shortness of breath that is in any way related to service. See 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). Thus, there is no requirement to obtain a VA medical examination in connection with the Veteran's claim for service connection for disabilities manifested by a loss of sense of smell and/or by shortness of breath, as the competent and credible evidence of record does not suggest that those symptoms may be related to service. See McLendon, 20 Vet. App. at 85-86; see also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting appellant's argument that his "conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of [38 U.S.C.A. § 5103A(d)(2)(B).]"). The Board also points out that its prior decision similarly determined that the duty to provide a medical examination was not triggered because the evidence of record failed to suggest that the Veteran's claimed disabilities may be associated with service. In appealing the Board's denials of service connection to the Court, the Veteran's attorney, who was the same attorney as is currently representing the Veteran, raised no argument in his brief to the Court concerning the Board's finding in this regard. The parties' Joint Motion also includes no reference to the Board's findings in this regard. Notably, no additional evidence relevant to the Veteran's claims of service connection for disabilities manifested by a loss of sense of smell and/or by shortness of breath has been associated with the record since the Board's March 2011 decision, and the Veteran's attorney has not suggested to the Board that its determination was erroneous, or that a medical examination is warranted. Nor has the Veteran or remand from the Court submitted any new evidence suggesting an association between his complained of symptoms and service. II. Analysis The law provides that service connection may be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West. 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Alternatively, for chronic diseases shown in service, as defined by regulation, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Chronicity is established if the appellant can demonstrate (1) the existence of a chronic disease in service and (2) current or present manifestations of the same disease. Id. at 495-97. Continuity of symptomatology may be established if it is demonstrated that (1) a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id. A. Disability Manifested by Shortness of Breath Due to Exposure to Asbestos In support of his claim, the Veteran has asserted that he first experienced shortness of breath in service, which has persisted since. He has also stated his belief that his shortness of breath is due to "particles" in his lungs. It is his contention, therefore, the service connection is warranted for a disability manifested by shortness of breath due to his exposure to asbestos during active service. As noted above, the Veteran's STRs are unavailable. Certain other records indicate that in service he drove a light truck and made minor road repairs and that, in civilian life, he was a plumber who installed, repaired, and inspected water systems and gas connections, and threaded pipes. Relevant post-service records show that in 1974, the Veteran was found to be totally disabled by the SSA, due to his severe narcolepsy, atypical personality disorder, arteriosclerotic heart disease, and chronic low back syndrome. Private medical records dated during the mid-1980s are devoid of any reference to a disability manifested by shortness of breath due to exposure to asbestos. VA medical records dated from July 2004 to February 2009 reveal complaints of shortness of breath and dyspnea on exertion. Results of pulmonary function tests performed in June 2008 were normal and a September 2008 record indicates that results of a stress test done in August 2007 were negative for ischemia and that the Veteran was not interested in a referral to a pulmonologist at that time. Results of February 2009 pulmonary function testing and chest-x-rays were described as within normal limits and there were no objective findings of a pulmonary disability to explain the Veteran's complaints of dyspnea on exertion. The Veteran's VA treatment records contain no diagnosis of asbestosis or any other chronic pulmonary disease. They also fail to show a current chronic pulmonary disease related to service or to a disability associated with exposure to asbestos. During his January 2011 hearing, the Veteran testified that he could not recall whether he was treated for shortness of breath in service. He also stated that he has had chest x-rays and pulmonary function testing, but has never been told that he had asbestosis. He denied a history of cigarette smoking and said that although he worked in an environment after service where there was asbestos, he was not around it. The Veteran acknowledged that he did not mention shortness of breath in his 1982 claim for VA benefits, but stated that his failure to do so at that time was on advice of his then representative. The Board notes there are no laws or regulations specifically dealing with asbestos and service connection. See McGinty v. Brown, 4 Vet. App. 428, 432 (1993) (noting that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations). However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the Court and VA's General Counsel provide guidance in adjudicating these claims. In 1988, VA issued the Department of Veterans Benefits (DVB) Circular 21-88-8, which provided guidelines for considering asbestos compensation claims. See DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual with updates in 2005 and 2006. See VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1MR), Part IV, Subpart ii, Ch.2 Section C, Topic 9 (Dec. 13, 2005) and Section H, Topic 29 (Sep. 29, 2006). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. The applicable sections of the M21-1MR note that the latency period for asbestos-related diseases varies from 10 to 45 or more years between the first exposure and development of a disease and that the exposure may have been direct or indirect. The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. In the instant case, although the Veteran believes that he has disability manifested by shortness of breath due to asbestos exposure for which service connection should be granted, the Board finds no support in the record for the Veteran's claim. While the Veteran is certainly competent to testify as to his experiencing a shortness of breath, the private and VA treatment records fail to show that the Veteran has been diagnosed as having asbestosis or any other chronic pulmonary disease. There is also no evidence showing that the Veteran currently has a disability manifested by shortness of breath due to exposure to asbestos. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a current disability. See 38 U.S.C.A. § 1131 (West 2002). Hence, in the absence of evidence that the Veteran currently has asbestosis or some other diagnosed pulmonary disease or respiratory disability manifested by a shortness of breath, a there can be no award of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under the circumstances of the present case, the Board finds that a preponderance of the evidence is against the Veteran's claim of service connection for a disability manifested by shortness of breath due to exposure to asbestos. In finding that service connection is not warranted, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990); 38 C.F.R. § 3.102 (2013). B. Disability Manifested by a Loss of Sense of Smell The Veteran also contends that he lost his sense of smell in service, which problem has persisted since. Specifically, he has asserted his belief that his loss of sense of smell was due to the chemicals required to clean all the weapons in his unit. The Veteran noted that he saw a physician at Fort Knox Hospital in Kentucky who said there was no treatment for his problem and that his sense of smell would "never come back," but has indicated that no physician has told him exactly what caused his loss of sense of smell other than he must have been around too many chemicals. A review of the Veteran post-service medical records are completely devoid of any reference to an inability to smell, nor do they contain any evidence to support a finding that the Veteran's loss of sense of smell is due to service, to include any exposure to chemicals used to clean weapons in service. Notably, the Veteran has been unable to identify any specific chemicals used, other than Benzene, and could not recall if he was ever treated for loss of smell in service. The evidence of record also fails to identify an anatomic or pathologic basis for loss of the sense of smell. Although the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as symptoms or events experienced during service, etiology of dysfunctions and disorders is generally a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio, supra. Here, the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to make such an etiological conclusion with regard to his loss of sense of smell. See Jandreau, supra. Based on the evidence of record, the Board finds that service connection for a disability manifested by a loss of sense of smell is not warranted because a crucial element of service connection has not been shown. See Davidson, supra (service connection requires evidence of a nexus between the claimed in-service disease or injury and the present disability); see also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability that still exists currently). In this regard, the Board has considered the Veteran's assertions regarding a continuity of symptomatology since service. However, as the Veteran's claimed disability is not one of the conditions identified in 38 C.F.R. § 3.309(a), the recent holding in Walker, supra, would indicate that the nexus prong cannot be established by demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). Thus, the Board need not determine the credibility of the Veteran's statements in this regard. C. Residuals of an In-Service Back Injury The Veteran seeks service connection for residuals of a back injury, asserting that in February 1947, he slipped on icy stairs and was thereafter hospitalized for nearly one month in the Fort Knox Hospital in Kentucky. The Veteran's wife has also stated that she visited the Veteran in the base hospital at Fort Knox while he was hospitalized for approximately three weeks in the early part of 1947. The Veteran has reported the onset of chronic pain in service following this incident, which pain has existed since. Notably, the Veteran's statements regarding his in-service fall and subsequent development of back pain have been deemed credible. Post-service treatment records contain various diagnoses related to the lumbar spine. An August 2012 private chiropractic treatment record indicates "Lumbar Disc" and "Sprain/Strain Lumbosacral," and an April 2012 VA examination report notes that x-rays taken in March 2012 revealed moderate DJD of the lumbosacral spine. Records from the SSA also indicate that the Veteran had sustained a second back injury in December 1974 and that he was found totally disabled and eligible for benefits since 1974 due, in part, to chronic low back syndrome. In support of his claim, the Veteran submitted a report from a G.W., M.D., a private physician who examined the Veteran and conducted a review of the claims folder. Dr. G.W. noted the Veteran's reported in-service fall and continuous back pain thereafter, as well as his 1974 injury. Dr. G.W. opined that it was "highly likely" that the Veteran's currently diagnosed back disability had its origins in service and was otherwise related to the Veteran's active service. As noted in the introduction, the Board obtained an IME opinion given inadequacies in a nexus opinion provided by a VA examiner. The clinician was requested to opine as to whether it was at least as likely as not that the Veteran's diagnosed DJD, or any other diagnosed back disability, had its clinical onset in service or was otherwise related to active service. The IME opinion was provided by a Chief of Neurosurgery who reviewed all relevant evidence of record and found the record to be clear that the Veteran experienced persistent and debilitating pain after his in-service injury, which has persisted since and which was aggravated by subsequent injury. The clinician then discussed the fact that assigning causation for the Veteran's complained of pain was more appropriately based on his individual history and complaints than it was on x-ray findings, given that degenerative changes in the lumbar spine are expected as a consequence of age and are present in the vast majority of people with no prior history of trauma. The clinician ultimately concluded that it is at least as likely as not that the Veteran's back disability had its clinical onset in service. Although the clinician did not specifically identify the nature of the Veteran's current back disability, reference was made to the Veteran's DJD of the lumbar spine. The IME opinion, along with the private medical opinion provided by Dr. G.W. support the Veteran's contention that he currently suffers from DJD of the lumbar spine as a result of his in-service back injury. In considering the evidence of record, the Board finds that, when the benefit of the doubt resolved in the Veteran's favor, a grant of service connection is warranted. ORDER Service connection for a disability manifested by shortness of breath, to include as due to asbestos exposure, is denied. Service connection for a disability manifested by a loss of sense of smell is denied. Service connection for DJD of the lumbar spine is allowed. ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs