Citation Nr: 1326336 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 09-50 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for residuals of a fractured jaw. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a cervical spine disability, to include secondary to service-connected residuals of a fractured nose. 4. Entitlement to service connection for chronic obstructive pulmonary disease, to include secondary to asbestos and insecticide exposure and service-connected residuals of a fractured nose, allergic rhinitis, and chronic ethmoid sinusitis. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran had active service from September 1970 to April 1972 with subsequent service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before a Decision Review Officer in April 2010 and the undersigned Veterans Law Judge in December 2011. Transcripts of both hearings are associated with the record. In March 2012, the Board remanded the issues on appeal to the Appeals Management Center (AMC) for further development. In January 2013, the Board requested a Veterans Health Administration (VHA) expert medical opinion on the issue of entitlement to service connection for a low back disability. Later in January 2013, the Board received the VHA expert medical opinion report. In March 2013, the Board requested an addendum to the VHA expert medical opinion report. In April 2013, the Board received the addendum to the VHA expert medical opinion report. Later in April 2013, the Veteran and his representative were provided copies of the VHA expert medical opinion report and the addendum and were given 60 dates to review these documents and submit any additional evidence or argument. 38 C.F.R. § 20.903 (2012). Neither the Veteran nor his representative has responded by submitting additional evidence or argument. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran has or has had any residuals of a fractured jaw during the appellate term. 2. Clear and unmistakable evidence establishes that the Veteran had juvenile epiphysitis prior to active service. 3. Clear and unmistakable evidence establishes that the Veteran's preexisting juvenile epiphysitis was not aggravated by active service. 4. The weight of the evidence is against a finding that the lumbar spine arthritis was compensably disabling within a year of separation from active duty or that there is a nexus between a current diagnosis of a lumbar spine disability other than juvenile epiphysitis and service, to include the in-service low back injury. 6. The weight of the evidence is against a finding that the cervical spine arthritis was compensably disabling within a year of separation from active duty; that there is a nexus between a current diagnosis of a cervical spine disability and service, to include any in-service neck injury; or that the cervical spine disability was caused or aggravated by the service-connected residuals of a fractured nose. 7. The weight of the evidence is against a finding that there is a nexus between a current diagnosis of chronic obstructive pulmonary disease and service, to include in-service upper respiratory infections or insecticide or asbestos exposure, or that the chronic obstructive pulmonary disease was caused or aggravated by the service-connected residuals of a fractured nose, allergic rhinitis, or chronic ethmoid sinusitis. CONCLUSIONS OF LAW 1. Residuals of a fractured jaw were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. A low back disability was not incurred in or aggravated by service, and lumbar spine arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1111, 1112, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2012). 3. A cervical spine disability was not incurred in or aggravated by service and was not caused or aggravated by a service-connected disability, and cervical spine arthritis may not be presumed to have been so incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). 4. Chronic obstructive pulmonary disease was not incurred in or aggravated by service and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1103, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in February 2008, April 2010, and March 2012 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. In the February 2008 letter, VA notified the appellant of how VA determines the disability rating and effective date. The claims were most recently readjudicated in a November 2012 supplemental statement of the case. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. The Veteran submitted private treatment records. The RO obtained the service and VA treatment records as well as service personnel records, and the RO and AMC afforded the appellant VA examinations in May 2008, May 2010, and April 2012 (pursuant to the March 2012 Board remand). The Board obtained a VHA medical expert opinion with an addendum. With respect to the claims denied herein, the Board finds that the examinations and opinions are adequate to satisfy VA's duty to assist in that they were based on a thorough review of the record, consideration of the Veteran's contentions, and are supported by rationale. In light of the above, the AMC complied with the directives of the March 2012 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for residuals of a fractured jaw Governing Law and Regulation Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. In order to establish service connection for a claimed disorder, there must be (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Analysis The Veteran claims that his jaw was fractured during an in-service fight. The Board has reviewed all of the evidence of record, to include the service, private, and VA treatment records, and VA examination reports. These records do not show that the Veteran currently has, or has had residuals of a fractured jaw since he filed his claim in January 2008. Therefore, Hickson element (1) is not established. The service treatment records show that in April 1971 the Veteran suffered a laceration to the left cheek after a fight in which he was hit with a beer bottle. There was no injury to the teeth or gums. The service treatment records do not show that the jaw was injured, much less fractured. Private and VA treatment records show no residuals of a fractured jaw. The April 2012 VA dental examiner specifically noted that there was no loss of any part of the maxilla or mandible and that the appellant did not have an injury resulting in malunion or nonunion of the maxilla or mandible. While the examiner diagnosed maxillary and mandibular edentulous atrophy, periodontal disease, caries, and missing teeth, the Board notes that these disorders pertain to the appellant's claim of entitlement to service connection for a dental disability and that the Board dismissed that claim in March 2012 due to his withdrawal of that claim. The Veteran is competent to report symptoms such as pain and locking, which he attributes to a fractured jaw. However, the Board places far more probative weight on the clinical findings in the service treatment records, which do not show that he sustained a fracture of the jaw as a result of his in-service injury, and the clinical findings and conclusions of the VA examiner, who identified no residuals of any such injury. In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that the Veteran has or has had residuals of a fractured jaw during the appellate term. Therefore, the preponderance of the evidence is against the claim, and it is denied. Entitlement to service connection for a low back disability Additional governing law and regulations A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based on "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304(b)(1). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 U.S.C.A. § 1154; 38 C.F.R. § 3.306(a). 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). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9 (2012); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection can be granted for a disease of congenital, developmental, or familial origin. VAOPGCPREC 82-90 (July 18, 1990). 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. Id. On the other hand, the term "defect" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature. Id. Analysis The Veteran contends that his various lumbar spine disorders are related to being hit in the low back by a blunt instrument in February 1971. The current lumbar spine disabilities are the following: juvenile epiphysitis, lumbar levoscoliosis, spondylosis, degenerative disc disease, spinal stenosis, lumbosacral strain/sprain with myofasciitis, and status post lumbar laminectomy and fusion at L3 and L4 with degenerative changes. In the March 2013 addendum to the January 2013 VHA medical expert opinion, the doctor opined that the lumbar levoscoliosis was not a defect and that the levoscoliosis was the result of progressive thoracic and lumbar degenerative disc disease and juvenile epiphysitis. Therefore, Hickson element (1), current disability, is established. Turning first to the juvenile epiphysitis, that disorder was found on lumbar spine X-rays in February 1971. In the January 2013 VHA medical expert opinion, the doctor stated that the juvenile epiphysitis is a developmental disease. The lumbar spine was normal at a September 1970 entrance examination, and the Veteran denied any history of back trouble. Thus, juvenile epiphysitis was not noted on entrance into service and the appellant is entitled to the presumption of soundness as to his juvenile epiphysitis. The next matter is whether there is clear and unmistakable evidence that the Veteran's juvenile epiphysitis preexisted his active service. In the March 2013 addendum to the January 2013 VHA medical expert opinion, the doctor stated that the juvenile epiphysitis clearly and unmistakably existed prior to the appellant's active service in an asymptomatic condition. In the January 2013 opinion, the doctor stated that the blow to the low back did not cause the juvenile epiphysitis. There is no medical evidence indicating that the juvenile epiphysitis did not preexist his active service. Clear and unmistakable evidence establishes that the Veteran had juvenile epiphysitis prior to active service. The Board finds that the medical evidence is undebatable on this question. The crux of the issue involving juvenile epiphysitis thus revolves around whether there is clear and unmistakable evidence that the Veteran's juvenile epiphysitis was not aggravated during service. In the March 2013 addendum to the January 2013 VHA medical expert opinion, the doctor stated that the juvenile epiphysitis unmistakably did not undergo a permanent increase in severity as result of his military service, to include the result of being hit by a blunt instrument in the low back in February 1971. In the January 2013 opinion, the VHA doctor stated that juvenile epiphysitis is a disease that may progress to symptomatic degenerative disc disease in the middle years of life and at times may result in spinal stenosis. The doctor added that the disease progression is usually evident in the middle years of life and independent of any injury to the spine. The doctor indicated that the blow to the low back was in no way related to the natural history of the appellant's juvenile epiphysitis. The doctor stated that the juvenile epiphysitis did progress and became symptomatic. The doctor opined that the blow to the low back had no long-term impact on his low back and that the juvenile epiphysitis progressed independent of the blow to his low back. The doctor added that the juvenile epiphysitis was asymptomatic on entrance into service and that the progression to symptomatic degenerative disc disease and lumbar spinal stenosis would have occurred regardless of whether he was in the armed forces. Clear and unmistakable evidence establishes that the Veteran's pre-existing juvenile epiphysitis was not aggravated by his period of active duty. The Board finds that the evidence is undebatable on this matter. Therefore, service connection for juvenile epiphysitis is not warranted and the claim as to juvenile epiphysitis is denied. As to the remaining lumbar spine disabilities, the service treatment records as discussed above reflect that the Veteran suffered a blow to the low back in February 1971. Thus, Hickson element (2) as to injury is established. With regard to Hickson element (2), disease, the service treatment records show no lumbar spine disease in service except for the above-discussed juvenile epiphysitis. Lumbar spine X-rays taken in February 1971 showed juvenile epiphysitis and no evidence of acute trauma with a fracture or other abnormalities. No other lumbar spine disorder was diagnosed at the time of treatment in February 1971. The spine was normal at the February 1972 separation examination and the March 1973 Army National Guard periodic examination. At the March 1973 examination, the Veteran denied any history of recurrent back pain, neuritis, or paralysis. The lumbar spine arthritis was not diagnosed until VA X-rays taken in January 2005. Thus, Hickson element (2) as to disease is not established. As to Hickson element (3), medical nexus evidence, there is conflicting medical evidence on whether any of these lumbar spine disabilities is related to active service. On the one hand, in an April 2009 private treatment record from Dr. S. Reddy, the Veteran reported that he had tingling and numbness in both of his legs since 1970 and that this symptomatology was the result of a work injury and the Army. Similarly, in an April 2010 statement, Dr. R. Mosier, D.O. stated his impression from the February 1971 in-service injury included traumatic moderate lumbosacral strain/sprain with concomitant paravertebral myofasciitis, trigger points, and spasms with consequent rotation subluxations and resultant pain and radiation into both lower extremities. On the other hand, the April 2012 VA examiner opined that the lumbar spine disability status post lumbar discectomy and fusion with degenerative changes was less likely related to his military service, including any disease, any event, or injury in service to include the event that occurred on February 17, 1972, when he was hit by a blunt instrument and complained of pain on movement because there was no evidence of chronicity of his low back disability while in service and because the March 1972 separation examination and the March 1973 periodic examination for the Army National Guard were negative for a lumbar spine disorder. The examiner opined that the lumbar spine disability status post lumbar discectomy and fusion with degenerative changes was most likely related to the normal wear and tear process of his age; his occupation as an electrician, which required climbing up and down ladders all the time; and other events and/or injuries that occurred after discharge from service, including the injury sustained in June 1986 when he fell from stairs while working as an electrician. The VHA medical expert opined in the January 2013 opinion that there was a 50 percent or greater chance that the blow to the low back was unrelated to the spondylosis, degenerative disc disease, and spinal stenosis, which resulted from the juvenile epiphysitis. The doctor's basis was that the armed forces and the blunt injury has no effect on the long-term outcome of the natural progression of the juvenile epiphysitis, which was asymptomatic on entrance, and that the progression of the juvenile epiphysitis to symptomatic degenerative disc disease and spinal stenosis would have occurred absent his service in the armed forces. As to the lumbar levoscoliosis, the VHA expert opined that the lumbar levoscoliosis was the result of progressive thoracic and lumbar degenerative disc disease and juvenile epiphysitis. In the addendum to the VHA expert medical opinion, that doctor opined that there was a less than 50 percent probability that his superimposed low back pathology, to include lumbar levoscoliosis, was a consequence of being hit by a blunt instrument in the lower back in February 1971 or otherwise the result of his military service. While the Board is not free to ignore the opinion of a treating physician, neither is it required to accord it additional weight. Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). The United States Court of Appeals for the Federal Circuit (the Federal Circuit) has declined to adopt a "treating physician rule," which would give preference, i.e., additional evidentiary weight, to this type of evidence. White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The United States Court of Appeals for Veterans Affairs (the Court) has also held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). A medical opinion may not, however, be discounted solely because a medical professional did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Rather, the question is whether the medical professional was informed of all relevant facts in rendering a medical opinion. Id. The April 2009 private treatment record merely contains a history and opinion given by the Veteran. Dr. Reddy did not render a medical opinion and instead merely reported the appellant's assertion. This negates the probative value because a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Notably, the VA examiner and the VHA medical opinion expert reviewed the claims file and were aware of the appellant's service treatment records and the VA examiner was aware of the history of a post-service injury. Dr. Mosier did not mention in his statement either service treatment records or the post-service injury. Thus, there is no indication that Dr. Mosier reviewed all of the evidence or was aware of the post-service injury unlike Dr. Reddy. Moreover, Dr. Mosier did not provide a basis for his opinion whereas the VA examiner and the VHA medical opinion expert did. Therefore, the VA examiner's opinion and VHA expert medical opinion will be given more weight because the VA examiner's opinion and VHA expert medical opinion were based on consideration of all of the evidence of record and more thorough and because the VA examiner addressed the post-service injury. The Board has considered the Veteran's assertion to Dr. Reddy in the April 2009 treatment record that he had had tingling and numbness in both legs since 1970. The Board notes that he is competent to report this history of symptoms. The Board, however, does not find him credible because of his conflicting reporting of symptomatology. As noted above, the appellant denied any history of recurrent back pain, neuritis, or paralysis at his January 1973 Army National Guard periodic examination. The Board finds the more contemporaneous denial to be inherently more credible than a statement made decades later contemporaneous with a claim for monetary benefits. The Veteran has related his lumbar spine disorder to active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the relationship between his lumbar spine disabilities - juvenile epiphysitis, lumbar levoscoliosis, spondylosis, degenerative disc disease, spinal stenosis, lumbosacral strain/sprain with myofasciitis, and status post lumbar laminectomy and fusion at L3 and L4 with degenerative changes - and his military service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In short, Hickson element (3), medical nexus, is not established. In summary, for the reasons and bases set forth above, the Board concludes that the weight of the evidence is against a finding that the lumbar spine arthritis was compensably disabling within a year of separation from active duty or that there is a nexus between a current diagnosis of a lumbar spine disability and service, to include in-service low back injury. Therefore, the preponderance of the evidence is against the claim as to a lumbar spine disability other than juvenile epiphysitis, and it is denied. Entitlement to service connection for a cervical spine disability, to include secondary to service-connected residuals of a fractured nose Additional governing law and regulations A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability that is aggravated by a service connected disability. In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis Direct service connection The Veteran claims that his cervical spine was injured during an in-service fight. The current cervical spine disabilities are the following: spondylosis, degenerative changes, and cervical strain/sprain with concomitant paravertebral spasms and trigger points with consequent rotation subluxations and pain radiating to the left upper extremity. Therefore, Hickson element (1), current disability, is established. The service treatment records reflect that the Veteran suffered facial injuries in fights on two separate occasions in service. Thus, Hickson element (2) as to injury is arguably established. With regard to Hickson element (2), disease, the service treatment records show no cervical spine disease in service. The spine was normal at the February 1972 separation examination and the March 1973 Army National Guard periodic examination. The cervical spine spondylosis was not diagnosed until VA X-rays taken in May 2008. Thus, Hickson element (2) as to disease is not established. As to Hickson element (3), medical nexus evidence, there is conflicting medical evidence on whether any of these cervical spine disabilities is related to active service. In his April 2010 statement, Dr. Mosier, stated his impressions from the February 1971 in-service injury included traumatic moderate cervical strain/sprain with concomitant paravertebral spasms and trigger points with consequent rotation subluxations and pain radiating into the left upper extremity. The April 2012 VA examiner opined that the cervical spine disability with degenerative changes was less likely related to his military service, including any disease, any event, or injury in service because there was no evidence of any treatment for any neck disability while in service and because the March 1972 separation examination and the March 1973 periodic examination for the Army National Guard were negative for a cervical spine disorder. The examiner opined that the cervical spine disability with degenerative changes was most likely related to the normal wear and tear process of his age; his occupation as an electrician, which required climbing up and down ladders all the time; and other events and/or injuries that occurred after discharge from service, including the injury sustained in June 1986 when he fell from stairs while working as an electrician. Notably, the VA examiner reviewed the claims file and was aware of the appellant's service treatment records and the VA examiner was aware of the history of a post-service injury. Dr. Mosier did not mention in his statement either service treatment records or the post-service injury. Thus, there is no indication that Dr. Mosier reviewed all of the evidence or was aware of the post-service injury. Moreover, Dr. Mosier did not provide a basis for his opinion whereas the VA examiner did. Therefore, the VA examiner's opinion will be given more weight because the VA examiner's opinion was based on consideration of all of the evidence of record and more thorough and because the VA examiner addressed the post-service injury. The Veteran reported to the VA examiner that he still had neck pain after being beaten up several times in service. The appellant is competent to report this continuity of symptomatology, and the Board finds him credible. However, even where a veteran asserts continuity of symptomatology since service, he is not necessarily competent to establish a nexus between the continuous symptomatology and the current claimed disorder. See, e.g., McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495- 98 (1997). In other words, even accepting that the Veteran now sincerely believes that he has experienced neck symptomatology since service, the Board finds that the opinion of the VA examiner to be the most probative evidence of record as to the relationship between the Veteran's current cervical spine disorder and his military service. As noted, this examiner took into account the full record, including the Veteran's assertion, but also considered the results of separation examination and the Army National Guard examination as well as the post-service injury. For these reasons, the Board is of the opinion that this opinion ultimately outweighs the Veteran's lay reports of continuity of symptomatology since service. The Veteran has related his cervical spine disorder to active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the relationship between his cervical spine disabilities - spondylosis, degenerative changes, and cervical strain/sprain with concomitant paravertebral spasms and trigger points with consequent rotation subluxations and pain radiating to the left upper extremity - and his military service falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (lay persons not competent to diagnose cancer). In short, Hickson element (3), medical nexus, is not established. In summary, for the reasons and bases set forth above, the Board concludes that the weight of the evidence is against a finding that the cervical spine arthritis was compensably disabling within a year of separation from active duty or that there is a nexus between a current diagnosis of a cervical spine disability and service. Therefore, the preponderance of the evidence is against the claim as to direct service connection for a cervical spine disability, and it is denied. Secondary service connection The current cervical spine disabilities are the following: spondylosis, degenerative changes, and cervical strain/sprain with concomitant paravertebral spasms and trigger points with consequent rotation subluxations and pain radiating to the left upper extremity. Therefore, Wallin element (1), current disability, is established. Service connection is in effect for residuals of a fractured nose. Thus, Wallin element (2), service-connected disability, is shown. As Wallin element (3), medical nexus evidence, the May 2010 VA examiner opined that it was less likely than not that the cervical spondylosis was due to the service-connected residuals of a fractured nose because there is no known association between the two disorders and the cervical spondylosis occurred as a result of repetitive activity. The Veteran has related his cervical spine disorder to the residuals of a fractured nose. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the relationship between his cervical spine disorder and residuals of a fractured nose falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (lay persons not competent to diagnose cancer). In short, Wallin element (3), medical nexus, is not established. In summary, for the reasons and bases set forth above, the Board concludes that the weight of the evidence is against a finding that the cervical spine disability was caused or aggravated by the service-connected residuals of a fractured nose. Therefore, the preponderance of the evidence is against the claim as to secondary service connection for a cervical spine disability, and it is denied. Entitlement to service connection for chronic obstructive pulmonary disease, to include secondary to asbestosis exposure and service-connected residuals of a fractured nose, allergic rhinitis, and chronic ethmoid sinusitis Additional governing law and regulations There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1MR (M21-1MR), Part IV, Subpart ii, Chapter 2, Section C. The United States Court of Appeals for Veterans Claims (the Court) has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993). M21-1MR provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus, persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. The applicable section of M21-1MR also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See id. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to the current version contained in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C) of M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos-related disease linked to alleged asbestos exposure in service. VAOPGCPREC 4-2000 (Apr. 13, 2000); 65 Fed. Reg. 33,422 (2000). In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. The provisions of 38 U.S.C.A. § 1103 (West 2002) prohibit service connecting a disability as a result of disease or injury attributable to the use of tobacco products during a veteran's active service. By its terms, 38 U.S.C.A. § 1103 is applicable to claims filed after June 9, 1998. See 38 C.F.R. § 3.300. As this claim was presented after June 9, 1998, 38 U.S.C.A. § 1103 must be applied in this case. Analysis Direct service connection The Veteran claims that his chronic obstructive pulmonary disorder is related to in-service insecticide exposure, asbestoses exposure, and his upper respiratory infections. The Veteran has chronic obstructive pulmonary disease. Therefore, Hickson element (1), current disability, is established. At the April 2012 VA examination, the Veteran claimed that he was exposed to insecticides and asbestos with his asbestos exposure being due to his involvement in tearing down buildings. The appellant is competent to report these exposures. His service personnel records reflect that he served as wireman. Therefore, it is credible that he was involved in tearing down buildings while working as a wireman. The Board therefore finds him credible. Thus, Hickson element (2) as to injury is established. With regard to Hickson element (2), disease, the service treatment records reflect that he was treated for upper respiratory infections on several occasions and that he had complaints of chest pain in February 1971. Therefore, Hickson element (2) as disease is arguably established. As to Hickson element (3), medical nexus evidence, the April 2012 VA examiner opined after reviewing the claims file and medical records including the service treatment records, obtaining a history from the Veteran, and performing a physical examination, that the chronic obstructive pulmonary disease was not likely related to his military service including any disease, to include his upper respiratory infection in September 1971, or any event or injury in service. The Board notes that the Veteran's history included the reporting of in-service insecticide and asbestoses exposures. The April 2012 VA examiner indicated that there was no chronicity of any upper respiratory disorder while in service and that the several in-service chest X-rays were reported as negative. That examiner opined that the post-service chest X-rays, to include the one conducted during the April 2012 examination, were normal. The May 2010 VA chest X-rays showed no active disease, to include asbestosis. Although September 2008 VA chest X-rays showed a fibrous tenting in the left hemidiaphragm secondary to previous trauma or inflammatory event, there is no medical evidence linking it to insecticide or asbestos exposure. The examiner indicated that the chronic obstructive pulmonary disease was most likely related to chronic tobacco smoking for about 30 to 40 years at a rate of two to three packs of cigarettes a day. Since the Veteran's claim was filed in September 2005, service connection based on in-service use of tobacco products is precluded. 38 U.S.C.A. § 1103. The Board has considered the Veteran's assertion to the April 2012 VA examiner that he has had breathing problems since active service. The Board notes that he is competent to report this history of symptoms. The Board, however, does not find him credible because of his conflicting reporting of symptomatology. The appellant denied any history of asthma, shortness of breath, pain or pressure in the chest, or chronic cough at his January 1973 Army National Guard periodic examination. The Board finds the more contemporaneous denial to be inherently more credible than a statement made decades later contemporaneous with a claim for monetary benefits. The Veteran has related his chronic obstructive pulmonary disease to active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the relationship between his chronic obstructive pulmonary disease and his military service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d at 1733 n. 4 (lay persons not competent to diagnose cancer). In short, Hickson element (3), medical nexus, is not established. In summary, for the reasons and bases set forth above, the Board concludes that the weight of the evidence is against a finding that there is a nexus between a current diagnosis of chronic obstructive pulmonary disease and service, to include in-service upper respiratory infections or asbestos exposure. Therefore, the preponderance of the evidence is against the claim as to direct service connection for a chronic obstructive pulmonary disease, and it is denied. Secondary service connection The Veteran has chronic obstructive pulmonary disease. Therefore, Wallin element (1), current disability, is established. Service connection is in effect for residuals of a fractured nose, allergic rhinitis, and chronic ethmoid sinusitis. Thus, Wallin element (2), service-connected disability, is shown. As Wallin element (3), medical nexus evidence, the May 2010 VA examiner opined that it was less likely than not that the chronic obstructive pulmonary disease was due to the service-connected residuals of a fractured nose because there is no known association between the two disorders and because the chronic obstructive pulmonary disease occurred due to a long history of smoking. The May 2012 VA examiner opined that the chronic obstructive pulmonary disease was not caused or aggravated by the allergic rhinitis, or chronic ethmoid sinusitis. The examiner indicated that the chronic obstructive pulmonary disease was most likely related to chronic tobacco smoking for about 30 to 40 years at a rate of two to three packs of cigarettes a day. The Veteran has related his chronic obstructive pulmonary disease to residuals of a fractured nose, allergic rhinitis, and chronic ethmoid sinusitis. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the relationship between his chronic obstructive pulmonary disease and his service-connected residuals of a fractured nose, allergic rhinitis, and chronic ethmoid sinusitis falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (lay persons not competent to diagnose cancer). In short, Wallin element (3), medical nexus, is not established. In summary, for the reasons and bases set forth above, the Board concludes that the weight of the evidence is against a finding that the chronic obstructive pulmonary disease was caused or aggravated by the service-connected residuals of a fractured nose, allergic rhinitis, and chronic ethmoid sinusitis. Therefore, the preponderance of the evidence is against the claim as to secondary service connection for chronic obstructive pulmonary disease, and it is denied. ORDER Entitlement to service connection for residuals of a fractured jaw is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a cervical spine disability, to include secondary to service-connected residuals of a fractured nose, is denied. Entitlement to service connection for chronic obstructive pulmonary disease, to include secondary to asbestosis and insecticide exposure and service-connected residuals of a fractured nose, allergic rhinitis, and chronic ethmoid sinusitis, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs