Citation Nr: 1512307 Decision Date: 03/23/15 Archive Date: 04/01/15 DOCKET NO. 09 03-500A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for respiratory disability to include chronic obstructive pulmonary disease (COPD) and asthma. 2. Entitlement to service connection for respiratory disability to include COPD and asthma, as a substitute claimant. 3. Entitlement to service connection for right hip disability, to include as due to a service-connected disability, as a substitute claimant. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Veteran, the appellant, and their daughter ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran had active service from January 1956 to August 1974. The appellant is his surviving spouse and has been authorized by VA to act as his substitute claimant. See 38 U.S.C.A. § 5121A. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated May 2007 and February 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the Veteran's claims of service connection. In May 2011, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a). The requested opinion has been provided and has been associated with the VA claims folder. In November 2011, the Board denied the claim of service connection for COPD and asthma, and remanded a claim of service connection for a hip disorder in order to afford the Veteran with a VA examination. Following such examination, the Veteran's hip claim was returned to the Board. In November 2012 the Board was informed that the Veteran had died, and accordingly dismissed his appeal regarding his hip. Under the provisions of 38 U.S.C.A. § 5121A , when a claimant dies on or after October 10, 2008, an eligible survivor may, not later than one year after the date of death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim(s) to completion. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121A (West 2014). Unlike accrued benefits claims that are limited to the evidence of record at the time of the Veteran's death, a substitute claimant may submit additional evidence to be considered by VA that was not of record at the time of the claimant's death. Here the appellant sought to be considered as a substitute claimant, and in April 2014 VA issued a letter formally recognizing her as such a substitute. In January 2011, the Veteran had presented sworn testimony during a personal hearing in Los Angeles, California before a Veterans Law Judge (VLJ) who is no longer with the Board. As described below, the appellant was afforded the opportunity to testify before a current VLJ, but declined to do so. A transcript of the hearing has nonetheless been associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The criteria are met for vacating the Board's decision of November 3, 2011 regarding the issues of service connection for a respiratory disability to include COPD and asthma. 2. Prior to his death, the Veteran was diagnosed with COPD and asthma in addition to a nonspecific 0.4 cm. pulmonary nodularity in the right lung apex, calcified right inferior middle lobe granuloma; none of which were related to service. 3. A right hip disorder diagnosed prior to the Veteran's death was not incurred in, or related to service or a service-connected disability, nor had it manifested to a compensable degree within one year of separation from service CONCLUSIONS OF LAW 1. The criteria are met for vacating the Board's decision of November 3, 2011 regarding the issues of service connection for a respiratory disorder to include COPD and asthma. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2014). 2. A respiratory disorder, including COPD and asthma, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110 (West. 2014); 38 C.F.R. § 3.303 (2014). 3. A right hip disorder was not incurred in service, may not be presumed to have been incurred therein, and was not proximately caused by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1153 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.310(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or their representative, or on its own motion, when a claimant has been denied due process of law or has been granted benefits based on false or fraudulent evidence. 38 C.F.R. § 20.904 (2014). As stated in the introduction, the Veteran was afforded a hearing prior to his death, regarding both service connection for a respiratory disorder and for a right hip disorder. Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013), the Board's November 2011 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the VLJ who conducted the January 2011 hearing. In order to remedy any such potential error, the Board issued a letter providing the opportunity to receive a new hearing and/or a new decision from the Board. Subsequently, the appellant requested only to have the prior decision vacated and a new one issued in its place without a new hearing. Accordingly, the Board vacates the November 2011 decision, to the extent that such decision denied entitlement to service connection for a respiratory disorder, to include COPD and asthma. Service Connection, Generally The appellant contends that the Veteran's respiratory and right hip disorders were related to service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2014). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1131 (West 2014); see also Degmetich v. Brown, 104 F.3d 1328 (1997). This requirement "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." McLain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that evidence of a recent diagnosis of a disability prior to a claim for benefits based on that disability, is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). To the extent that the Veteran's right hip claim was based on a diagnosis of arthritis, the Board notes that arthritis is a "chronic disease" which is listed under 38 C.F.R. § 3.309(a); therefore the presumptive provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). With regard to any disorders which are not a "chronic disease" listed under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that the continuity provisions of 38 C.F.R. § 3.303(b) apply only to those disease listed under 38 C.F.R. § 3.309(a)). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service Connection for a Respiratory Disorder The Veteran's specific claim regarding a respiratory disorder, included the argument that such disorder was related to in-service exposure to asbestos. 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, M21-1 (M21- 1), Part VI, 7.21. 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); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) 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 M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 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 Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. 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 M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). As noted above, in order to establish service connection for the claimed disorder, there must be (1) competent and credible 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) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden, supra. As to element (1), current disability, it is undisputed that the Veteran was diagnosed with COPD and asthma prior to his death. Additionally, CT scans from February 2005 through February 2007 demonstrated emphysematous changes, nonspecific 0.4 cm. pulmonary nodularity in the right lung apex, calcified right inferior middle lobe granuloma. See the private treatment records dated February 2005 to February 2007. As such, element (1) is satisfied. With respect to element (2), disease or injury in service, the Board will separately address the matters of in-service disease and in-service injury. Regarding disease, the Veteran's service treatment records do not indicate that he complained of, or was treated for, respiratory symptoms in service. Indeed, there is no evidence that the Veteran sought treatment for respiratory problems until 1990. See the letter from Dr. B. G. dated July 2006. The Board does note, however, that a December 1974 chest x-ray showed "[o]ld granulomatous disease in the hila and right lower lobe of the lung." However, no pulmonary history or current diagnosis of pulmonary disease was made at that time. With respect to in-service injury, the Veteran alleged pulmonary injury resulting from exposure to asbestos, airplane fumes, and Agent Orange in service. See the January 2011 Board hearing transcript. Initially, as to the alleged Agent Orange exposure, the Board recognizes that the Veteran served in the official waters off the coast of Vietnam. However, such service does not constitute "service in the Republic of Vietnam." See VAOPGCPREC 27-97 (O.G.C. Prec.27-97); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (holding that the Court had erred in rejecting VA's interpretation of § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption). Instead, "service in the Republic of Vietnam" requires visitation (i.e. setting foot) in Vietnam. See 38 C.F.R. §§ 3.307(a), 313(a) (2014). Critically, the Veteran did not contend that he "set foot" in Vietnam (see the January 2011 Board hearing transcript, pgs. 5-6), nor is there evidence to support such a finding. As such, exposure to Agent Orange is not shown by the record. As noted above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. The Veteran's contention is that he was exposed to asbestos aboard a ship. The Board cannot disagree with the Veteran's contention in light of the provisions of M21-1, described in the law and regulations section above. The Veteran served aboard the U.S.S. HORNET, which was a World War II-era ship, and VA has recognized that such vessels contained asbestos. Additionally, the Board does not dispute that the Veteran was exposed to airplane fumes while performing his military duties; as such exposure is consistent with his military occupational specialty. Element (2) has therefore also been met. Turning to crucial element (3), nexus, the competent medical evidence of record demonstrates that the Veteran's currently diagnosed respiratory disability is not related to his military service to include asbestos and airplane fume exposure. Notably, the June 2011 VHA examiner indicated, "[a]lthough the Veteran may have been exposed to asbestos while serving on the U.S.S. HORNET, there is no evidence on his chest x-rays or chest CT scans of asbestos exposure. Specifically, the B reading of his chest x-ray from March 29, 2007 was negative for asbestos related changes. The radiologist's report of his February 11, 2004 CT stated, '[t]here is no calcified pleural plaque to suggest exposure to asbestos.'" The VHA examiner continued, "[r]eview of the Veteran's chest CTs from 2005 to 2007 do not report pleural plaques suggesting asbestos related pleural disease or interstitial lung changes that might be consistent with asbestosis. His 2006 Chest CT is reported as showing bilateral emphysematous changes. Asbestos exposure is not known to be a causative agent for COPD or asthma." The June 2011 VHA examiner also addressed the granulomas and 4 cm. scar reported in the Veteran's 2005 and 2006 chest CTs as well as the December 1974 chest x-ray report which documented "old granulomatous disease in the right hila and right lower lobe of the lung." The examiner then concluded, "[t]hese abnormalities are unlikely to be from asbestos exposure and would not result in any respiratory symptomatology." The June 2011 VHA examiner further indicated that "[t]he Veteran states that he was exposed to exhaust fumes while serving on the U.S.S. Hornet. There is insufficient data in the medical literature showing an association between exposure to jet engine exhaust fumes and the development of COPD." The June 2011 VHA examiner additionally noted the Veteran's history of smoking and concluded, "[t]he severe COPD seen on his [pulmonary function tests] and emphysematous changes noted on his chest CT are most likely secondary to his tobacco use. Multiple physician notes document that the patient smoked one pack of cigarettes per day for about fifty years. He quit smoking in 2004." The June 2011 VHA examiner further concluded, "[b]ased on this review, I am rending an opinion that it is NOT at least as likely as not that the Veteran's current pulmonary/respiratory disorders are related to exposure to asbestos and/or aircraft exhaust fumes during his military service." (Emphasis as in original). The June 2011 VHA examination report appears to have been based upon thorough review of the record as well as thoughtful analysis of the Veteran's entire history. The VHA examiner noted the Veteran's report of in-service exposure to asbestos and airplane fumes and development of his current respiratory disabilities, and further indicated that he relied upon the Veteran's medical records, clinical experience, and medical research in rendering his opinion. See Bloom, supra. Moreover, the VHA opinion is consistent with that rendered by the March 2007 VA examiner who concluded that "[t]he changes on the chest x-ray at this time do not appear to be related to asbestos exposure, although this is likely. However, I believe that most of the Veteran's symptoms of shortness of breath and the root cause of his pulmonary condition is his significant COPD which is related to his long-standing history of smoking. He also appears to have cor pulmonale secondary to his COPD." The Veteran submitted several private medical opinions in support of his claim for service connection. In a July 2006 letter, Dr. B.G. described the Veteran's respiratory diagnoses and stated that "[s]ince [the Veteran] was stationed during his time in the Navy on different ships; it is quite likely that he has been exposed to asbestos and may develop complications of it." Critically, the rationale provided by Dr. B.G. does not provide an adequate basis for the speculative opinion provided. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record). Similarly, in an opinion dated October 2007, Dr. J.B.R. opined that the Veteran "served in the Navy for nearly twenty years, from 1955 until 1974, including time in the waters off the coast of Vietnam. He was exposed to airplane exhaust fumes and in addition there may have been exposure to asbestos and Agent Orange during his service . . . It is possible that the pulmonary lesions and that his pulmonary function impairment are significantly related to these exposure incidents." In an October 2008 addendum, Dr. J.B.R. added that the Veteran "has provided me with records from his military service and details of his exposure to Agent Orange, asbestos, and airplane exhaust fumes . . . Based on these severity of his lung disease and history of exposure, I believe that a very significant proportion of his pulmonary injury is related to these exposure incidents." The October 2007 and October 2008 opinions are entitled to little weight of probative value as said statements provide little rationale to support the conclusions rendered and Dr. J.B.R. failed to address the Veteran's long history of smoking which is well-documented in the claims file. See Stefl v. Nicholson, 21 Vet. App. 102 (2007); see also Herandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence). The Veteran contended that the VHA examiner, and the VA generally, over-stated his tobacco use. See, e.g., the Veteran's statement received October 2011 (stating that "I never said I smoked a pack a day"); see also the January 2011 Board hearing transcript, pg. 10. Critically, however, the claims folder is replete with both VA and private treatment records which document the Veteran's lengthy and substantial smoking history. In particular, a private treatment record dated September 1994 noted that the Veteran "does smoke about one pack per day." In a subsequent VA musculoskeletal examination report dated February 1999, the VA examiner observed that "[t]he Veteran has smoked one pack of cigarettes per day for more than forty years." A subsequent October 2000 private treatment record indicated that the Veteran had been "smoking one to two packs per day since the age of eighteen." Notably, in an October 2002 VA treatment record, the treating physician noted that the Veteran "is having marked shortness of breath with moderate exertion secondary to his COPD. He continues to smoke approximately one package of cigarettes per day with associated chronic bronchitis." An April 2002 VA treatment record indicates that the Veteran has smoked, "one pack per day since sixteen years of age." In a June 2003 VA treatment record, the Veteran's treating clinician noted that "[h]e has smoked for more than fifty years. He smokes about a pack per day." Similarly, private treatment records dated October 2005 reported that the Veteran "smoked one pack a day for fifty years and quit when he developed shortness of breath in October 2004." Accordingly, based upon the overwhelming medical evidence to the contrary, the Board finds that the Veteran's recent statements concerning a more minimal smoking history are not credible. Moreover, in so far as the Veteran claimed that his respiratory disorders were related to his smoking in service, 38 C.F.R. § 3.300 precludes service connection for any disability on the basis that it resulted from injury or disease attributable to the Veteran's use of tobacco products during service. To the extent that the Veteran contended that the claimed respiratory disorder was related to his military service, under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's lay reports of a current disability prior to his death were supported by the clinical evidence. However, at issue in this case is whether there was competent evidence linking such complaints and symptomatology to in-service asbestos and/or airplane fume exposure. In this regard, there is no indication that the Veteran was competent to comment on medical matters such as etiology. See 38 C.F.R. § 3.159(a)(1) (2014) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, statements offered by the Veteran in support of the claim were not competent evidence of a nexus between claimed disability and military service. In its February 2015 the appellant's representative referred to an article entitled Occupational chronic obstructive pulmonary disease: a systemic literature review, in arguing that the "there is 'strong and consistent evidence to support a causal association between multiple categories of occupational exposure and COPD.'" The Board has considered the quoted treatise information, but notes that generic information from a medical journal, treatise, or website is too "general and inconclusive" to establish a medical nexus to a disease or injury. Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). A medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships. Sacks v. West, 316-17. Here, no such medical opinion has been associated with the record. As a result, the arguments of the appellant's representative based on the quoted article and materials carry no probative weight for the purposes of establishing a nexus between the Veteran's service and a respiratory disorder. In summary, for the reasons expressed above, the Board concludes that the preponderance of the evidence is against the Veteran's - and by extension the appellant's - claim of entitlement to service connection for a respiratory disorder to include COPD and asthma. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for a Right Hip Disorder Prior to his death, the Veteran asserted that his right hip disorder was related to service or a service-connected disability. In his February 2009 VA Form-9, the Veteran reported that he had been given a topical application to use on his neck and hip, and that he had "arthritis in [his] hip, neck and hands." The Veteran also reported that a "piece of right hip [was] removed in 1964 to fuse C5-6 together. Since that fusion, [his] right hip has given [him] problems." November 2010 VA Form-646; see also the January 2011 Board hearing transcript, pg. 14. Except as provided in 38 C.F.R. § 3.300(c), a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2014). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. See 38 C.F.R. § 3.310(b) (2014). Establishing service connection on a secondary basis requires (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Service treatment records reflect no complaints or treatment referable to the right hip, other than an October 1964 anterior interbody fusion of C5-6 with an iliac bone graft. On examination in July 1974 - one month prior to separation from service - the spine and other musculoskeletal systems were normal. Post-service records show an onset of multi-site osteoarthritis in the early 2000s, with a July 2005 bone density study showing that mean femoral neck and mean total hip bone mineral densities were in the osteopenic range. An August 2005 x-ray confirmed degenerative changes "including joint space narrowing and subchondral cyst formation of the right acetabular femoral joint." In a July 2006 letter from a private physician, Dr. B.G., it was indicated that a January 2006 computer tomography scan had confirmed "extensive osteoarthritis, more pronounced on right." On VA examination in November 2011, the Veteran reported an in-service head injury while playing football, which was treated with cervical fusion at that C5-6 level, using a bone graft was taken from the right iliac bone. The Veteran reported to the examiner that "[e]ver since he had the surgery on his upper back, he started having pain on his right hip with walking." The examiner conducted a complete review of the claims file and a thorough physical examination of the Veteran before concluding that the claimed right hip disorder was less likely than not related to the claimed in-service bone graft surgery. In reaching this conclusion, the examiner noted the Veteran's history of COPD and the fact that one of the side effects of corticosteroids - used to treat COPD during exacerbations - is thinning of the bone. The examiner ordered radiographic imaging, but "it was not completed due to extreme shortness of breath associated with COPD," as the Veteran was unable to lay on his back for the amount of time needed for x-ray imaging to be completed. The examiner stated that "[w]ithout imaging studies, it is difficult to confirm the pathology of the joint," but that she attempted to contact the Veteran's private physician, as she had been told that an x-ray imaging had previously been taken of the hip. The examiner was not successful in acquiring the sought prior x-rays. Nonetheless, she concluded that the most likely pathology was that of osteoarthritis or necrosis of the femoral head of the joint, both of which she declined to relate to service or the in-service bone graft surgery. In August 2012 VA received a treatment report from one of the Veteran's private care providers reflecting radiographic evidence of "[e]ndstage degenerative osteoarthritis involving the bilateral hips." In September 2012 the Veteran's representative argued that a new VA examination opinion was warranted now that new x-ray evidence had been made available. The Board has considered the argument, but notes that while the November 2011 examiner had concluded that it was "difficult to confirm the pathology of the joint" without x-rays, she expressly stated that the underlying pathology was likely osteoarthritis or necrosis. Thus, the August 2012 treatment report would only serve to confirm a conclusion that the examiner had already reached. Additionally, radiographic evidence was of record at the time of the examiner's review, including imaging studies completed in August 2005 and January 2006. Again, the diagnostic impression verified by the August 2012 private treatment report was simply duplicative of diagnostic impressions previously reached and fully considered by the VA examiner. The Board finds the VA examiner's conclusion to be exceptionally probative, and the value of the negative nexus opinion was further enhanced insofar as the examiner identified a likely cause of the Veteran's right hip disorder. Namely, that use of corticosteroids for treatment of nonservice-connected COPD was responsible for the claimed hip disorder. While the Veteran's statements regarding the onset of pain are competent to the extent that pain is capable of lay observation, Layno v. Brown, 6 Vet. App. 465 (1994), the association of observable symptoms with a particular pathology or underlying injury is well beyond the scope of lay competence. Accordingly, assertions made by both the Veteran and the appellant that a right hip disorder was related to an in-service bone graft, are not competent and of no probative value in substantiating the appellant's claim. Thus, the Board finds at the time of his death the Veteran's right hip disorder was not related to non-service connected COPD, and was not related to service or a service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Notice letters were sent to the Veteran, prior to his death, in June and July 2006. Notice included descriptions of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided, and what information and evidence would be obtained by VA. The notice also requested that VA be informed of any additional outstanding information or evidence. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). As discussed, the Board has determined that the content of notice provided to the Veteran and the appellant during the January 2011 hearing was not compliant with the obligations imposed by 38 C.F.R. § 3.103. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Nonetheless, the appellant was subsequently informed of the deficiency and provided with an additional opportunity to provide testimony, but declined such opportunity. VA also has a duty to assist an appellant in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2014); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). The Board finds that VA has satisfied its duty to assist by acquiring service records as well as records of private and VA treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. The duty to assist was further satisfied by VA examinations in March 2007 and November 2011, in addition to a VHA medical opinion dated June 2011. During his examinations, examiners conducted physical examinations of the Veteran, took down the Veteran's history, considered the lay evidence presented, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. While the March 2007 VA examiner was not provided the Veteran's claims file for review, an accurate history was elicited from the Veteran regarding his respiratory history. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). Furthermore, complete reviews of the claims file were conducted by both the June 2011 VHA provider and the November 2011 examiner prior to arriving at their respective opinions. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2014); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claim and no further notice or assistance is required. Finally, in November 2011 the Board remanded the issue of service connection for a hip disorder for additional development, including completion of VA examination on the matter of etiology of the claimed disorder. In November 2011 a VA examination was completed. Therefore, the Board finds that the RO substantially complied with the November 2011 remand directive regarding, and the Board has properly proceed with the foregoing decision. See Stegall v. West, 11Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). ORDER The November 3, 2011 Board decision addressing the issues of service connection for a respiratory disorder to include COPD and asthma, is vacated. Service connection for a respiratory disorder is denied for substitute claimant purposes. Service connection for a right hip disorder is denied for substitute claimant purposes. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs