Citation Nr: 1605350	
Decision Date: 02/11/16    Archive Date: 02/18/16

DOCKET NO.  13-06 012	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD).

2.  Entitlement to service connection for a back disability, to include as secondary to a respiratory disorder.  

3.  Entitlement to service connection for hypertension, to include as secondary to a respiratory disorder and/or a back disability.

4.  Entitlement to service connection for gout, to include as secondary to a respiratory disorder and/or a back disability.  

5.  Entitlement to service connection for a skin disorder, to include a rash, scars, and marks.  




WITNESS AT HEARINGS ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Zawadzki, Counsel


INTRODUCTION

The Veteran served on active duty from August 1970 to August 1971.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from March and June 2011 and August 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  

The Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO in November 2012.  He testified at a videoconference hearing before the undersigned in March 2014.  Transcripts of both hearings are of record.  

Subsequent to issuance of the statements of the case (SOCs) addressing the issues on appeal, additional VA treatment records were associated with the Veteran's Virtual VA e-folder.  The Veteran has not waived review of this evidence by the agency of original jurisdiction (AOJ).  See 38 C.F.R. § 20.1304(c) (2015).  While this evidence reflects complaints regarding and diagnoses of COPD, obstructive sleep apnea, hypertension, back pain, and gout, such diagnoses and complaints were included in the evidence considered at the time of issuance of the SOCs in January and March 2013.  Therefore, to the extent that the additional medical evidence added to the record reflects current findings of, and ongoing treatment for, these conditions, the Board finds that this evidence is cumulative of evidence previously considered.  

Regarding the additional evidence added to the Virtual VA e-folder since issuance of the January and March 2013 SOCs, an October 2013 VA treatment record reports that the physician reviewed the Veteran's 2008 MRI scan, which showed multilevel degenerative joint disease (DJD)/degenerative disc disease (DDD) with canal stenosis and protruded disks.  A July 2014 VA treatment record reflects that films showed moderate to severe degenerative changes of the lower spine.  Findings of DDD, canal stenosis, disk protrusion, and degenerative disease of the thoracic spine were of record at the time of issuance of the March 2013 SOC addressing the claim for service connection for a back disability.  While the evidence of record at the time of issuance of this SOC does not specifically include a diagnosis of DJD in regard to the Veteran's back, there was evidence of degenerative disease of the thoracic spine.  Similarly, a February 2014 VA treatment record reflects an assessment of acute sinusitis.  While the evidence of record at the time of issuance of the SOC did not include a diagnosis of sinusitis, the evidence at that time did establish the presence of a current respiratory disorder.  

As will be discussed below, the claims for service connection decided herein are being denied as the there is no nexus between these claimed disabilities and service.  As the evidence added to the claims file since the most recent SOC does not provide evidence of the required nexus, it is not pertinent to these claims for service connection.  Thus, while the Veteran has not waived AOJ consideration of the evidence received since the SOCs, a remand for such consideration is unnecessary.  See 38 C.F.R. § 20.1304.

The Board notes that the additional VA treatment records added to the claims file since issuance of the March 2013 SOC addressing the claim for service connection for a skin disorder do include evidence which is potentially pertinent to that claim.  However, as this claim is being remanded, the AOJ will have the opportunity to consider this evidence on remand.  

In September 2011, the Veteran filed a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, in which he reported that the service-connected disabilities that prevented him from securing or following a substantially gainful occupation were his back, diabetes, gout, hypertension, his eyes, and his hearing.  Service connection for bilateral hearing loss has been established.  Service connection for type II diabetes mellitus was denied in the August 2012 rating decision and the claims for service connection for a back disability, gout, and hypertension are addressed in the decision below.  The claim for service connection for an eye disorder, however, has not been adjudicated.  The issue of entitlement to service connection for an eye disorder has been raised by the record in a September 2011 VA Form 21-8940, but has not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b). 

The issue of entitlement to service connection for a skin disorder, to include a rash, scars, and marks, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1.  The Veteran's current respiratory disorder, to include COPD, is not related to service, to include any asbestos exposure therein.  

2.  A back disability was not manifest during service or within one year of the Veteran's separation from service.

3.  The Veteran's current back disability is not attributable to service.

4.  The Veteran's current back disability is not proximately due to or aggravated by service-connected disability.

5.  Hypertension was not manifest during service or within one year of the Veteran's separation from service.

6.  The Veteran's current hypertension is not attributable to service.

7.  The Veteran's current hypertension is not proximately due to or aggravated by service-connected disability.  

8.  Gout was not manifest during service or within one year of the Veteran's separation from service. 

9.  The Veteran's current gout is not attributable to service.

10.  The Veteran's current gout is not proximately due to or aggravated by service-connected disability.


CONCLUSIONS OF LAW

1.  The criteria for the establishment of service connection for a respiratory disorder, to include COPD, are not met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2015).

2.  The criteria for the establishment of service connection for a back disability are not met.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2015).

3.  The criteria for the establishment of service connection for hypertension are not met.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310.

4.  The criteria for the establishment of service connection for gout are not met.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310.



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for service connection for a respiratory disability, a back disability, hypertension, and gout.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159.  September 2010 and September 2011 letters fully satisfied the duty to notify provisions prior to initial adjudication of the Veteran's respiratory claim in March 2011 and his back, hypertension, and gout claims in August 2012 on the basis of direct and presumptive service connection.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

During the March 2014 hearing, the Veteran asserted that his hypertension and gout were secondary to his respiratory disorder and/or back disability.  He claimed that his back disability was secondary to his respiratory disorder.  He has not been provided a notice letter specifically advising him of the information and evidence necessary to substantiate a claim for secondary service connection.  The RO has not considered the claims for service connection on secondary bases and the March 2013 SOC did not include citation to 38 C.F.R. § 3.310, the pertinent regulation regarding secondary service connection.  Nevertheless, as will be discussed below, the claims for service connection for a respiratory disorder and a back disability are being denied.  Therefore, as a matter of law, the Veteran's claim for service connection for a back disability as secondary to a respiratory disorder and his claims for service connection for hypertension and gout as secondary to a respiratory disorder and/or back disability, must be denied.  Therefore, any additional notice or assistance regarding secondary service connection could not lead to these benefits sought and it is not prejudicial to the Veteran for the Board to proceed with adjudication of these claims.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  

VA also has a duty to assist the Veteran in obtaining potentially relevant records.  Here, the Veteran's service records, Social Security Administration (SSA) records, and post-service VA and private treatment records have been obtained and associated with the claims file.  

In his September 2010 claim for service connection, the Veteran reported that he had received treatment at the Oklahoma Department of Corrections from 1996 to 2001.  He submitted a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), for records from the Oklahoma Department of Corrections from 1999 to 2001.  These records were requested by VA.  In November 2010, the Oklahoma Department of Corrections responded that medical records are destroyed after 6 years and the requested records were no longer available.  The Veteran was advised of the unavailability of these records via a December 2010 letter from the RO.  Similarly, in December 2011, the Veteran submitted a VA Form 21-4142 for records from OSU Medical Center dated in December 2002.  VA attempted to obtain these records; however, in April 2012, OSU Medical Center provided a negative response regarding this records request, indicating that records more than seven years old could not be obtained.  The Veteran was informed of VA's inability to obtain these records in the May 2012 VCAA letter.  Accordingly, no further action with respect to attempting to obtain these records is warranted.  

Also in his September 2010 claim for service connection for a respiratory disorder, the Veteran reported treatment at Milwaukee County Hospital in 1993.  The RO requested a VA Form 21-4142 for records from this facility in the September 2010 VCAA letter.  While the Veteran returned VA Forms 21-4142 later that month, he did not identify any providers in those forms.  The Veteran was advised, via October 2010 correspondence, that the VA Forms 21-4142 he submitted did not contain the name or address of a physician or hospital, and he was asked to provide this information.  In September 2011, the Veteran submitted a VA Form 21-4142 in which he reported treatment at Milwaukee County Hospital in 1971-1972 for a rash as well as treatment at the Muskogee VA Medical Center (VAMC) from 2001 to the present.  In a December 2011 letter, the RO informed the Veteran that the September 2011 release listed two different providers and did not include an address for Milwaukee County Hospital.  He was asked to complete a new VA Form 21-4142 for Milwaukee County Hospital.  The Veteran did not subsequently return a new release for this facility.  VA is only obligated to obtain records that are adequately identified and for which necessary releases have been received.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board notes that, records provided in response to a May 2012 request for records from Froedtert and the Medical College of Wisconsin include records from Milwaukee County Hospital dated in 1972.  However, as the Veteran did not provide a new release form for treatment at Milwaukee County Hospital, it is not possible for VA to obtain additional records from this facility.

As indicated above, in the VA Form 21-4142 received in September 2011, the Veteran reported treatment at the Muskogee VAMC from 2001 to the present for gout, hypertension, and diabetes.  VA treatment records from the Muskogee VAMC and the Tulsa VA outpatient clinic (OPC), dated from December 2002 to November 2015, have been associated with the claims file.  In December 2011, the RO advised the Veteran that his VAMC records showed that he had a new patient appointment in December 2002.  If this was not correct, he was advised to inform the RO and Muskogee VAMC records dated from January 2001 to December 2002 would be requested.  In correspondence received in December 2011, the Veteran stated, "I stand on statement made in the last claims forms."  The record does not reflect that VA treatment records dated prior to December 2002 have been requested.  However, review of the December 2002 VA treatment record shows that the Veteran reported that he had not seen a provider in years until he had recently been hospitalized with hypertension and chest pain.  The Board finds the Veteran's contemporaneous report that he had not seen a healthcare provider in years, made in December 2002, more probative than his more recent assertion that he had begun receiving VA treatment in 2001.  Supporting the conclusion that the Veteran did not receive VA treatment at the Muskogee VAMC/Tulsa VA OPC prior to December 2002, in a September 2010 VA Form 21-4142, the Veteran reported that he had been receiving treatment at the Muskogee VAMC since 2002 for different breathing problems and other medical problems.  Accordingly, the Board finds that remand to attempt to obtain VA treatment records dated prior to December 2002 is not warranted.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).  

The VA treatment records associated with the claims file include references to several studies which are not presently associated with the claims file for the Board's review.  The Board finds, however, that remand for these studies is not warranted.  The evidence of record includes a May 2008 VA X-ray of the lumbosacral spine.  This X-ray report references a comparison from March 2007.  A March 2007 X-ray of the lumbosacral spine is not of record; however, the May 2008 X-ray report indicates that there was no change from the prior examination.  A May 2008 VA chest X-ray references a comparison from November 2003.  The actual chest X-ray report from November 2003 is not of record; however, the Veteran's VA treatment records dated from December 2002 to November 2015, which document his complaints regarding and treatment for his claimed respiratory disorder, are of record.  

Also in May 2008, the Veteran's VA physician acknowledged receipt of a private MRI report.  The physician commented that the Veteran had a broad-based disk protrusion at L4-5 extending below the disk space with compression of the thecal sac, moderate canal stenosis, and right foraminal stenosis.  Another VA record from May 2008 reports that a fax from Dervant Medical Imaging had been received, and notes that the scanned document could be viewed in the Veterans Health Information Systems and Technology Architecture (VISTA).  Although the actual MRI report is not of record, the findings from that study were reported by the Veteran's VA physician.  A December 2009 pulmonary function test (PFT) consult indicates that the PFT report can be viewed in VISTA imaging.  While the actual PFT report is not of record, the results of that testing were reported in an addendum from the same date.  Similarly, the Veteran underwent a sleep study in August 2010 and his VA treatment records indicate that the study can be viewed in VISTA imaging.  While the actual sleep study is not currently available for the Board's review, the results of that study are reported in the VA treatment records presently associated with the claims file.  In January 2011, the Veteran received emergency room treatment for congestion.  Chest X-ray was performed.  While the actual chest X-ray report is not of record, the results of that study are reported in the VA treatment records presently associated with the claims file.     

As discussed above, to the extent that the actual reports of certain tests and studies are not presently associated with the record before the Board, with the exception of the November 2003 and March 2007 X-rays, the results of such tests and studies are otherwise reported in the evidence of record.  While the results of the March 2007 X-ray of the lumbosacral spine are not of record, the May 2008 X-ray indicates that there was no change from the prior examination, meaning this March 2007 X-ray report would not show anything new regarding the lumbosacral spine that is not presently of record.  As will be discussed below, the Veteran has not had a respiratory disorder known to be associated with asbestos exposure at the September 2010 filing of the claim for service connection or thereafter.  The results of X-ray studies conducted in 2008 and 2009 are both closer in time to the filing of the claim and afford a competent medical assessment of those disabilities which were present at claim filing.  Given the intervening X-ray reports, the Board concludes that the 2003 report would not be "recent" enough to establish the presence of a disability at claim filing.  See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (a successful service connection claim requires evidence of a current disability at the time of claim, as opposed to some time in the past).  Thus, the 2003 and 2007 reports are either cumulative or irrelevant and need not be obtained.  See Soyini, 1 Vet. App. at 546.

Moreover, the claims for service connection are being denied based on the lack of evidence of a nexus between the Veteran's claimed disabilities and service.  As X-ray, PFT, and sleep study reports themselves would not include evidence of the required nexus between the Veteran's claimed disabilities and service, as required to substantiate the claims for service connection, remand to obtain these records is not warranted.  See Soyini, at 546.   

The Board notes that the VA treatment records recently associated with the claims file reflect that the Veteran had a CT scan of the chest in October 2015.  The results of this study were forwarded to his primary care physician for review and the Veteran was notified of the results in November 2015.  Neither the CT scan of the chest, nor a summary of the results of that study, are presently associated with the claims file; however, the VA treatment records, printed in December 2015, include the Veteran's problem list.  This problem list does not include any respiratory disorders which were not previously of record and considered by the AOJ.  Indeed, the Veteran's listed respiratory disorders are COPD with asthma and obstructive sleep apnea.  It is reasonable to assume that, if the October 2015 CT scan of the chest revealed any new diagnosis, such would have been recorded in the Veteran's VA problem list.  See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (explaining that the absence of a record that would ordinarily be recorded gives rise to a legitimate negative inference that the event did not occur); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded).  Accordingly, remand to obtain a copy of the October 2015 CT scan is not necessary.  See Soyini, supra.   

The Board also notes that VA treatment records included in the Veteran's SSA records reflect that he was last seen at the Oklahoma City VAMC in September 2008 and the Central Arkansas VA Healthcare System in March 2007.  Records from these facilities on these dates are not presently associated with the record before the Board; however, the record does include a November 2010 problem list the Oklahoma City VAMC which lists only background diabetic retinopathy.  A September 2010 problem list from the Little Rock VAMC (part of the Central Arkansas VA Healthcare System) lists only mild non-proliferative diabetic retinopathy and "DM II OPHTH NT ST UNCNTRL."  These problem lists reflect that any earlier treatment pertained to the Veteran's diabetes-related eye conditions, and, therefore, is not pertinent to the issues presently on appeal.  

A December 2013 SOC addressing claims for a compensable evaluation for bilateral hearing loss and an earlier effective date for the grant of service connection for bilateral hearing loss lists among the evidence considered treatment records from the Little Rock VAMC for the period from March 2007 through June 2013.  The only record from the Little Rock VAMC presently associated with the claims file is a VA telehealth consult dated in March 2010 for teleretinal imaging.  As indicated above, the September 2010 problem list from this facility reflects that any treatment dated prior to September 2010 was not pertinent to the issues on appeal.  

The Veteran's numerous treatment records from the Muskogee VAMC and Tulsa VA OPC, dated from December 2002 to November 2015, reflecting complaints regarding and treatment for his claimed disabilities, are of record.  These records include a June 2013 diabetic retinopathy surveillance consult note from the Tulsa VA OPC, which shows that the Veteran agreed to diabetic teleretinal imaging.  Another diabetic retinopathy surveillance consult note from the same date refers to an inter-facility consult note.  This second note is signed by an individual identified in VA's global address book as an optometrist at the Little Rock VAMC.  The above supports the conclusion that the June 2013 record from the Little Rock VAMC pertained to diabetic teleretinal imaging.  The Veteran has not asserted, nor does the record otherwise suggest, that the Veteran has received treatment for any of his claimed disabilities at the Little Rock VAMC; rather, it appears that records from this facility have consistenly pertained to eye treatment.   Therefore, these records would not be pertinent to any of the claims decided herein.  Accordingly, remand to obtain any additional treatment records from the Oklahoma City VAMC and/or the Central Arkansas VA Healthcare System, is not warranted.  See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (only relevant records must be sought pursuant to VA's duty to assist).

As stated above, during VA treatment in December 2002, the Veteran reported that he had recently been hospitalized with hypertension and chest pain.  He stated that he was recently treated at TRMC for chest pain and high blood pressure.  In conjunction with his claim for SSA benefits, the Veteran reported treatment for gout and high blood pressure at Tulsa Regional Hospital in 2003.  These private treatment records have not been associated with the claims file.  However, in September 2010, September 2011, and May 2012 letters, the RO advised the Veteran that, if he wanted VA to try to obtain any doctor, hospital, or medical reports on his behalf, he should complete and return the attached VA Form 21-4142.  The Veteran has not provided a release to allow VA to obtain records from TRMC and/or Tulsa Regional Hospital.  Therefore, because VA is only obligated to obtain records that are adequately identified and for which necessary releases have been received, no further action in regard to these records is required.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In August 2011, the Veteran filed a claim for VA vocational rehabilitation, noting that he was service-connected for tinnitus.  A VA vocational rehabilitation folder has not been associated with the claims file.  However, there is no indication that any outstanding vocational rehabilitation records, if in existence, would include a nexus between any of the Veteran's claimed disabilities and service.  Rather, in his VA Form 28-1900, Disabled Veterans Application for Vocational Rehabilitation, the Veteran reported that the nature of his disability was tinnitus.  At the time of filing of the claim for VA vocational rehabilitation, the Veteran was service-connected for left ear hearing loss and tinnitus.  Accordingly, a remand to attempt to obtain any vocational rehabilitation records would impose unnecessary additional burdens on adjudication resources, with no benefit flowing to the Veteran, and is, thus, unnecessary.  See Soyini, supra.  

Further, the claims for service connection decided below are being denied as there is no competent evidence of a nexus between the claimed disabilities and service.  During the March 2014 hearing, the Veteran testified that his doctors did not attribute his COPD to "anything in particular" and he was not aware of any doctor saying that his respiratory disorder might be related to in-service asbestos exposure.  See Board Hearing Tr. at 2-3, 9.  This testimony indicates that any outstanding records would not include evidence of a nexus between the Veteran's claimed respiratory disorder and service.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).  The Board concludes that an examination is not needed for any of the claims decided below because of a lack of competent lay or medical evidence indicating that any of these claimed disabilities may be related to service.  As will be discussed below, the Veteran's assertions are not competent lay evidence of a relationship between his claimed disabilities and service.  The medical evidence of record also does not indicate a relationship between these claimed disabilities and service.  Either competent lay or medical evidence is required to establish "an indication" that the Veteran's current disabilities may be related to some in-service event to trigger the duty to assist by providing a medical examination or opinion.  See Waters v. Shinseki, 601 F.3d 1274, 1277-78 (Fed. Cir. 2010).  As there is no competent evidence of record demonstrating an indication that the Veteran has a current respiratory disorder, back disability, hypertension, and/or gout that may be related to service, an examination or opinion is not warranted with respect to these claims.  See McLendon, 20 Vet. App. at 81-82. 

The Board has also considered that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer (DRO) or Veterans Law Judge who chairs a hearing fulfill two duties: (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

During the DRO hearing, the DRO did not specifically discuss the criteria necessary to establish service connection for the Veteran's claimed respiratory disorder, back disability, and hypertension; however, she did ask questions pertinent to these claims.  As the Veteran's testimony addressed the relationship between his current COPD and back disability service, and the relationship between his hypertension and his claimed respiratory disorder, he demonstrated that he had actual knowledge of the elements necessary to substantiate a claim for service connection.  The DRO sought to identify pertinent evidence that was not associated with the claims file.  

The issue of entitlement to service connection for gout was not addressed during the November 2012 DRO hearing; however, the Board finds that the Veteran was not prejudiced by this omission.  Significantly, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication that the Veteran had any additional information to submit.  In this case, given the extensive development of the Veteran's claims, the Veteran's assertions made in support of his claims for service connection (which demonstrate actual knowledge of the elements necessary to substantiate his claims), and the fact that the Veteran presented testimony regarding his claim for service connection for gout during the March 2014 Board hearing, the Veteran is not shown to be prejudiced in regard to any deficiencies in the November 2012 hearing.  Moreover, the Veteran has not alleged that there were any deficiencies in the DRO hearing under 38 C.F.R. § 3.103(c)(2).  See Bryant, 23 Vet. App. at 497-98.

During the Board hearing, the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims for service connection, and sought to identify any further development required to help substantiate the claims.  These actions satisfied the undersigned's duty to fully explain the issues on appeal and suggest the submission of any evidence that may have been overlooked.  Bryant, 23 Vet. App. at 493-94.  Notably, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing.

The record reflects that the facts pertinent to the claims decided below have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations.

Analysis

Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Generally, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009)).  

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases listed in 38 C.F.R. § 3.309(a) benefit from a somewhat more relaxed evidentiary standard.  See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id. 

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Walker, 708 F.3d at 1338.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and the "nexus" requirement of the three-element test must be met.  Id. at 1338-39.  

Respiratory Disorder

The Veteran asserts that he has a current respiratory disorder related to service, to include in-service asbestos exposure.  Regarding his claimed in-service asbestos exposure, the Veteran has reported being exposed to asbestos in his in-service living quarters.  He stated in his September 2010 claim for service connection, that he was housed in barracks with asbestos insulation.  In a September 2011 statement, he reiterated that his breathing problems were because of his in-service housing conditions, and added that he was a truck driver in service and the brakes were lined with asbestos.  

There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases.  However, guidelines governing claims for service connection for asbestos-related diseases are contained in VA's Adjudication Procedures Manual.  See VBA Manual M21-1, IV.ii.1.I.3 and VBA Manual M21-1, IV.ii.2.C.2.  Also, an opinion by VA's Office of General Counsel discussed the development of asbestos-related claims.  See VAOPGCPREC 4-00 (Apr. 13, 2000).  VA must analyze the Veteran's claim of entitlement to service connection for asbestos-related disease under these administrative protocols.  Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).

The manual provisions acknowledge that inhalation of asbestos fibers may produce fibrosis, including interstitial pulmonary fibrosis or asbestosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate).  VBA Manual M21-1, IV.ii.2.C.2.b.  

The Veteran has current diagnoses of several respiratory disorders.  In this regard, VA treatment records dated during and proximate to the pendency of the claim document findings of COPD, asthma, allergic rhinitis, obstructive sleep apnea, bronchitis, upper respiratory infection, a pulmonary nodule, and acute sinusitis.  Thus, the first element of the service connection claim, a current disability, is satisfied.  However, these respiratory disorders are not among which may be associated with asbestos exposure at the time of claim filing or thereafter.  See VBA Manual M21-1, IV.ii.2.C.2.b.

In this regard, the Board acknowledges that the Veteran has, in the past, had pleural effusions, which the VA Adjudication Procedures Manual lists among the disorders that can be produced as a result of inhalation of asbestos fibers.  A January 1995 chest X-ray revealed bilateral pulmonary consolidations with bilateral pleural effusions, larger on the left than the right.  The following day, the Veteran was hospitalized for worsening shortness of breath and chest pain.  Chest X-ray revealed a right upper lobe and retrocardiac infiltrate and a left pleural effusion.  The discharge diagnoses were pneumonia and pericarditis.  A chest X-ray during this period of hospitalization reflects an impression of moderate areas of consolidation in the right upper lobe are stable and slightly increased in the left lower lobe with associated pleural effusions.  The physician opined that this likely reflected a bronchopneumonia.  

The Veteran was again hospitalized in February 1995.  Chest X-ray revealed a large left pleural effusion and a small right pleural effusion.  On chest X-ray the following day, no right pleural effusion was evident.  The impression was small left pleural effusion and left lower lobe consolidation, grossly unchanged.  The impression following chest X-ray three days later was stable appearance of the patchy infiltrate involving the right lung and the left lower lobe consolidation, with large pleural effusion.  Chest X-ray was again performed three days later, revealing an interval decrease in the small left pleural effusion with associated atelectasis.  The physician noted that considerations included an infectious process versus inflammatory serositis.  The impression also included a resolving small right mid-lung zone infiltrate.  The discharge summary from this hospitalization reports that chest X-ray revealed cardiomegaly, increased right and left pleural effusion, and right upper lobe and left lower lobe infiltrate but notes that, during the hospital course, chest X-ray showed a decrease in the left pleural effusion and the right mid-lung zone infiltrate.  The discharge diagnoses were pneumonia and pericarditis.  

Despite the evidence of pleural effusions in 1995, more recent VA treatment records reflect that the Veteran has not had pleural effusions.  In this regard, a May 2008 chest X-ray showed no convincing evidence of infiltrate, lung nodule, or congestive heart failure.  Interstitial was less prominent than on prior examination.  The impression was doubt acute disease.  A May 2009 chest X-ray revealed the lungs to be clear except for pulmonary congestion.  The pertinent impression was pulmonary congestion.  Another May 2009 chest X-ray performed just over a week later revealed prominence of the pulmonary vasculature and bilateral pleural thickening.  There was no evidence of pulmonary consolidation.  The impression was mildly improved pulmonary congestion.  None of the above X-ray reports mention pleural effusions.  Significantly, an August 2009 chest X-ray revealed the lungs to be clear with no pleural effusions.  There was moderate pulmonary vascular congestion.  The impression was no active cardiopulmonary disease.  An August 2009 letter to the Veteran from his VA physician stated that the chest X-ray was normal.  A December 2009 chest X-ray revealed stable mild pulmonary vascular congestion and bilateral pleural thickening.  There was no focal consolidation.  The impression was stable mild pulmonary vascular congestion.  A CT scan performed in January 2011 showed some pleural calcifications.  Chest X-ray performed at that time revealed no acute changes.  The assessment was congestion; abdominal pain, epigastric in nature; and solitary pulmonary nodule.

The Board finds that the medical evidence demonstrates that the pleural effusions resolved prior to the filing of the instant claim.  The pleural effusions and infiltrates were originally detected by x-ray studies; however, x-ray studies from 2008 and 2009 were not interpreted to show any such abnormalities.  It is apparent from the record that medical practice is to record abnormalities such as pleural effusions and infiltrates when they are shown on testing.  The absence of such notations on later, repeat testing is evidence that those abnormalities were not present at that time.  See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) (the absence of a notation in a record may be negative evidence if the fact at issue normally would have been recorded); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing FED. R. EVID. 803 (7)).  Given the absence of pleural effusions and infiltrates in testing in 2009 and later, the Board finds that the medical evidence shows that the effusions and infiltrates resolved prior to the date of claim.  See Romanowsky, 26 Vet. App. 289; see also Gilpin, 155 F.3d 1353.  

In addition to his claimed in-service asbestos exposure, the Veteran has alleged that his current respiratory disorder may be related to other in-service exposures.  For example, in his September 2010 claim for service connection, the Veteran asserted that he was exposed to hazardous materials in the buildings and on training sites during service.  He reported that his housing was heated with oil heaters and he was exposed to experimental weapons.  During the November 2012 DRO hearing, the Veteran argued that the use of kerosene lamps in service contributed to his breathing problems.  See DRO Hearing Tr. at 4.  The Board has considered whether the Veteran's current respiratory disorder may be related to any incident of service, to include his claimed in-service asbestos exposure.  

In considering whether the Veteran's current respiratory disorder may be related to any incident of service, the Board notes that, in a September 2011 statement, the Veteran argued that his breathing problems were related to his in-service housing conditions, including being housed with Veterans returning from Vietnam and being enclosed over a period of time.  During the November 2012 hearing, he argued that his COPD was due to multiple in-service factors, including being exposed to service members returning from Vietnam.  See DRO Hearing Tr. at 5.  

In his April 2013 VA Form 9, perfecting the appeal with regard to the claims for service connection for a back disability, hypertension, gout, and a skin disorder, the Veteran asserted that VA decided his case incorrectly because he was exposed by being housed with returning Veterans from Vietnam and cited 38 C.F.R. § 3.309(e).  This regulation addresses diseases associated with exposure to certain herbicide agents.  Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  

In June 2013, a VA employee called the Veteran to see which condition he was claiming as due to Agent Orange exposure.  He stated that it was the rash, including scars and marks.  The June 2013 Report of Contact indicates that the Veteran was asserting only that his claimed skin disorder was related to in-service herbicide exposure.  Regardless, the Veteran reported in June 2013 that he did not have Vietnam service, but was exposed to Agent Orange at Fort Ord, California.  Despite this assertion, the Board notes that, although the handwriting is challenging to decipher, in his September 2010 claim for service connection, the Veteran appeared to indicate that it was unknown whether he was exposed to Agent Orange or another herbicide.  By contrast, he clearly indicated that he was exposed to asbestos during service.  

In any event, the Board finds that the Veteran's assertion of Agent Orange exposure during service is not consistent with the circumstances of his service.  See 38 U.S.C.A. § 1154(a).  Additionally, the evidence does not show actual exposure to herbicides in service.  To the extent the Veteran has asserted in-service herbicide exposure at Fort Ord and/or by being exposed to Veterans returning from Vietnam, the Board finds that these allegations are not competent lay evidence of in-service exposure to herbicides.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Veteran's allegation of in-service herbicide exposure is not founded on an observation made through one of the five senses or recall of information provided by an expert.  The Veteran has not explained how he could know that Fort Ord and/or Veterans he was exposed to during service were contaminated with herbicides, or how any such contamination could have spread to him.  The Board therefore assigns his assertions of in-service herbicide exposure no probative value.  Accordingly, to the extent the Veteran's allegations that his respiratory disorder may be related to being housed with service members returning from Vietnam during service may be considered assertions that his current respiratory disorder is related to in-service herbicide exposure, service connection on the basis of a relationship between the Veteran's current respiratory disorder and his claimed in-service herbicide exposure is not warranted.  

In considering whether a current respiratory disorder may be related to any other incident of service, the Board observes that service treatment records are negative for complaints regarding or treatment for a respiratory disorder.  In his Report of Medical History in August 1971, the Veteran denied having or ever having had asthma, shortness of breath, pain or pressure in the chest, or a chronic cough.  On examination, clinical evaluation of the lungs and chest was normal.  Chest X-ray was reportedly negative.  

The Veteran has not asserted, nor does the record otherwise suggest, a continuity of symptomatology of respiratory problems since service.  On the contrary, the Veteran has reported the onset of his current respiratory disorder long after separation from service.  He indicated in his September 2010 claim for service connection that his breathing disorder began in 1994 and testified in March 2014 that he started having symptoms and problems with his respiratory disorder in 1994 or 1995.  See Board Hearing Tr. at 5.  Regardless, service connection for a respiratory disorder based on chronicity or continuity of symptomatology is not for consideration, as it is not a chronic disease listed in 38 C.F.R. § 3.309(a).  See Walker, 708 F.3d at 1338.  Service connection on a direct basis, then, must be established by evidence of a nexus.  

Even assuming that the Veteran was exposed to asbestos during service, there is no competent evidence of a nexus between his current respiratory disorders and in-service asbestos exposure, or any other incident of service.  Rather, the only evidence as to a possible nexus between a current respiratory disorder and service, to include in-service asbestos exposure, are his conclusory statements alleging such a relationship.  Lay persons are competent to provide opinions on some medical issues.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  The Board acknowledges that the record suggests that the Veteran may have some medical training and experience, as records regarding hospitalizations in January and February 1995 reflect that he was a former paramedic and firefighter, although he was working in home maintenance at the time.  While the Veteran reportedly has previous work history as a paramedic, SSA records reflect that he reported working in telemarketing from December 2001 to March 2002 and from March 2003 to August 2005, in a fast food restaurant from February 2002 to May 2003, and as a maintenance man from February 2006 to June 2007.  In September 2010 and September 2011 VA Form 21-8940s, the Veteran reported working in maintenance from 2003 to 2009.  

Despite his work history as a paramedic, however, the record does not reflect that the Veteran has had any particular training regarding respiratory disorders which would render him competent to make a link between a current respiratory disorder and service.  The specific issue of whether the Veteran has a current respiratory disorder related to service is a complex medical question that falls outside the realm of common knowledge of a lay person, even a person with previous work as a paramedic.  See Jandreau, 492 F.3d at 1377; see also 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 medical knowledge).  Based on the facts of this case, the Board finds that the Veteran's assertions are not competent as to nexus and are afforded no probative value.  

As indicated above, the Veteran has reported the onset of his current respiratory disorder long after separation from service, reporting in his September 2010 claim for service connection that his breathing disorder began in 1994, and testifying in March 2014 that he started having symptoms and problems with his respiratory disorder in 1994 or 1995.  See Board Hearing Tr. at 5.  Therefore, there has not been persistent observable symptomatology upon which a lay person might conclude that a respiratory disorder was related to service.  

Moreover, the Veteran has not provided a statement or testified that a medical expert has told him that his respiratory disorder is or could be the result of in-service asbestos exposure or otherwise related to service.  Rather, during the March 2014 hearing, he testified that his doctors did not attribute his COPD to "anything in particular."  See Board Hearing Tr. at 2, 3.  He further testified that he was not aware of any doctor saying that his respiratory disorder might be related to in-service asbestos exposure.  Id. at 9.  Thus, the Veteran has not offered competent report of what an otherwise competent expert has told him.  Jandreau, 492 F.3d at 1377.  

In light of the foregoing, the Board finds that the lay evidence of record is not competent as to the issue of whether the Veteran has a current respiratory disorder related to service, to include in-service asbestos exposure.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).  In addition, the medical evidence does not indicate that the Veteran has a current respiratory disorder related to service.  

In light of the foregoing, the Board finds that the Veteran does not have a current respiratory disorder, to include COPD, that was incurred in or aggravated by service.  

The Board notes that the Veteran has also suggested that his current respiratory disorder, to include COPD, is related to smoking during service, as he indicated in his September 2010 claim for service connection that he was given a package with his first cigarette during service.  During the November 2012 DRO hearing, he asserted that his COPD was related to smoking conditions in service.  See DRO Hearing Tr. at 4.  During the March 2014 hearing, he reported that he smoked when he was given his first pack of cigarettes when he first entered service.  See Board Hearing Tr. at 7.  

For claims received by VA after June 9, 1998 (as in this case), a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to the use of tobacco products during service.  See 38 C.F.R. § 3.300.  Thus, service connection for the Veteran's current respiratory disorder on the basis of a relationship to smoking during service is prohibited unless the disability is otherwise related to service or was manifest during service.  As discussed, the Veteran reports onset of the disorder in 1994 or 1995.  The record does not contain evidence that his current disorders were manifest during service from 1970 to 1971.  Thus, the evidence does not support a finding that a current respiratory disability was manifest during service.  The Board has already addressed the other possible avenues of a relationship to service above.  As a result, the Board concludes that service connection on the basis of use of tobacco products during service is not warranted.  See 38 C.F.R. § 3.300.  

For the reasons discussed above, the claim is denied.  In arriving at this decision, 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.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Back Disability

The Veteran has alleged that his current back disability is related to service.  He has also argued that his back problem is related to his breathing problem.  For example, he testified during the March 2014 hearing that his VA physician had told him that his weight problem was contributing to a lot of the issues he was having, and his weight problem was because of his breathing problems.  See Board Hearing Tr. at 21, 23.  

The Veteran has a current back disability.  VA treatment records include a May 2008 X-ray of the lumbosacral spine which revealed mild narrowing of the L4-L5 disc interspace, with significant osteophyte formation at multiple levels.  Almost two weeks later, a VA physician reviewed an MRI report and reported that the Veteran had a broad-based disk protrusion at L4-5 extending below the disk space with compression of the thecal sac, moderate canal stenosis, and right foraminal stenosis.  The impression was herniated L4-5 disk with right L4-5 radiculopathy.  A June 2008 VA physical therapy consult reflects a diagnosis of herniated nucleus pulposus and a May 2009 chest X-ray revealed degenerative disease of the thoracic spine.  The clinical impression following a December 2009 examination performed in conjunction with the Veteran's SSA disability benefits claim included herniated lumbar disc and a February 2010 SSA Physical Residual Functional Capacity Assessment included a primary diagnosis of DDD.  The first element of the service connection claim is satisfied.  

In his Report of Medical History in August 1971, the Veteran denied having or ever having had back trouble of any kind.  On examination, clinical evaluation of the spine was normal.  The Veteran has asserted, however, that his current back disability is related to in-service strain from walking, marching, and crawling through mud piles during service, as described during the November 2012 hearing.  See DRO Hearing Tr. at 9.  The Veteran is competent to report in-service strain from these activities.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991).  During the March 2014 hearing, the Veteran testified that his back disability was from basic training and described running wearing a pack, which he indicated was not an issue for him, and bouncing in trucks with no suspension.  See Board Hearing Tr. 17-18.  The Veteran's Form DD 214 reflects that he was a motor transport operator.  While the Veteran's assertion of bouncing in trucks with no suspension is consistent with the circumstances of his service as a motor transport operator, the Veteran specifically reported during VA treatment in May 2008 that his first back injury was as a firefighter in Wisconsin in 1976.  

In light of his inconsistent descriptions regarding his history of back injury, the Board finds his reports of in-service injury to the back not to be credible.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service).  In any event, service connection may be granted for disability diagnosed after service upon a showing of a nexus between that disability and injury or disease in service.  See, e.g., 38 C.F.R. § 3.303(d).
 
To the extent that the Veteran's current back disability includes degenerative changes in the spine, service connection based on chronicity or continuity of symptomatology is for consideration, as arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a).  While the Veteran reported in his September 2011 statement that his back condition started in basic training, he testified during the November 2012 hearing that his back condition began about six years earlier.  See DRO Hearing Tr. at 10.  Post-service VA treatment records show that, in March 2007, the Veteran reported experiencing increased pain in his left hip and low back in the past month.   During VA treatment in April 2008, the Veteran described pain in his lower back, extending to his right leg, for two weeks.  In May 2008, the Veteran presented to a VA emergency room with back pain/spasms.  He reported that his pain started three weeks earlier.  During evaluation by a physician, he reiterated that his back pain began three weeks earlier with no obvious inciting factors.  He reported that his first back injury was as a firefighter in Wisconsin in 1976.  During a June 2008 physical therapy consult, the Veteran reported that his back began hurting 8-9 weeks earlier.  During VA treatment in August 2009, the Veteran complained of lower back pain with an onset two years earlier.  During the March 2014 hearing, the Veteran reported that he started having back problems after gaining 80 pounds in 2000, when he started having breathing problems.  See Board Hearing Tr. at 20.   

To the extent that the September 2011 statement may be interpreted as suggesting a continuity of symptomatology of the Veteran's back condition since service, in light of his numerous other reports of his back condition beginning long after separation from service, the Board finds his report of continuous symptoms not to be credible.  See Madden, 125 F.3d at 1481; Caluza, 7 Vet. App. at 512.  Thus, service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) is not warranted.  Service connection on a direct basis, then, must be established by evidence of a nexus.  

There is, however, no competent evidence of a nexus between the Veteran's current back disability and service.  Rather, the only evidence as to a possible nexus consists of the Veteran's conclusory statements asserting that such relationship exists.  Notwithstanding his history of having worked as a paramedic, the record does not show that he has had particular training regarding orthopedic disorders which would render him competent to provide a nexus between a current back disability and service.  The specific issue of whether the Veteran has a current back disability related to service is a complex medical question that falls outside the realm of common knowledge of a lay person, even one who has worked as a paramedic in the past.  See Jandreau, 492 F.3d at 1377.  Based on the facts of this case, the Board finds that the Veteran's assertions are not competent as to nexus and are afforded no probative value.  See Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1278.

As noted above, the Veteran has repeatedly reported the onset of his current back disability long after separation from service, for example, testifying during the November 2012 hearing that his back condition began about six years earlier and testifying during the March 2014 hearing that he started having back problems after gaining 80 pounds in 2000, when he started having breathing problems.  See DRO Hearing Tr. at 10; Board Hearing Tr. at 20.  Therefore, there has not been persistent observable symptomatology upon which a lay person might conclude that a back disability was related to service.  

Moreover, the Veteran has not provided a statement or testified that a medical expert has told him that his back disability is or could be the result service.  Rather, during the March 2014 hearing, the Veteran indicated that he did not recall whether his VA physician had related his back problem to service, or just to his weight.  See Board Hearing Tr. at 25.  Thus, the Veteran has not offered competent report of what an otherwise competent expert has told him.  Jandreau, 492 F.3d at 1377.  

Considering the above, the Board finds that the lay evidence of record is not competent as to the issue of whether the Veteran has a current back disability related to service.  See King, 700 F.3d at 1344.  In addition, the medical evidence does not indicate that the Veteran has a current back disability related to service.  In light of the foregoing, the Board finds that the Veteran's current back disability was not incurred in or aggravated by service.  Thus, service connection on a direct basis is not warranted. 

Service connection can be granted for certain diseases, including arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service.  Such diseases shall be presumed to have been incurred in service even though there is no evidence of disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  In this case, however, there is no evidence that degenerative changes in the spine manifested to a compensable degree within one year of separation from service. Rather, as discussed above, the Veteran has, during VA treatment and both his DRO and Board hearings, described the onset of his back disability many years after separation from service.  Furthermore, there is no X-ray evidence of degenerative changes in the spine within one year of separation from service.  Thus, service connection is not warranted on a presumptive basis.  See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

The Veteran has asserted that his claimed back disability may be secondary to his claimed respiratory disorder.  During the March 2014 hearing, he indicated that he had spoken to his VA physician about his back and his physician told him that his biggest problem was his weight, which had contributed to a lot of the issues he was having, and the reason he was having the weight problem was because of his breathing problem.  See Board Hearing Tr. at 21, 23.  Service connection for a respiratory disorder, however, has not been established.  Therefore, the claim for service connection for a back disability as secondary to a respiratory disorder must be denied as without legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also 38 C.F.R. § 3.310.  

For the reasons discussed above, the claim is denied.  In arriving at this decision, 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.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

Hypertension and Gout

The Veteran has alleged that his hypertension and gout are related to his back and breathing disabilities, which restricted his ability to exercise.  In a September 2011 statement, the Veteran stated that, as his body was further weakened, his gout and hypertension formed.  During the November 2012 hearing, the Veteran testified that, because of his breathing condition, he was unable to exercise, so he became slightly overweight and his hypertension came about as a result of his inability to continue activity.  See DRO Hearing Tr. at 8-9.  During the March 2014 hearing, the Veteran asserted that his hypertension was related to his inability to breathe properly, as, therefore, he was not able to exercise to keep fit, and, because of his breathing limitations and other issues, such as his back, he had gained weight.  See Board Hearing Tr. at 13.  He asserted that his gout was secondary to his other claimed disabilities.  Id. at 15.   He reported that he had tried to lose weight but, because of his inability to breathe and his back problems, it was difficult, and these conditions contributed to his weight gain.  He, therefore, argued that "all these are secondary problems to the - to this extra weight."  Id. at 16-17.  

The Veteran has current hypertension and gout, as reflected in the VA treatment records.  For example, a March 2011 VA treatment record documents that the Veteran was prescribed medication for gout and a December 2012 VA treatment record includes an assessment of hypertension.  The first element of each of these service connection claims is satisfied.  

While the Veteran has asserted that his current hypertension and gout are secondary to his claimed respiratory disorder and/or back disability, to include weight gain resulting from these disabilities, service connection for the Veteran's claimed respiratory disorder and back disability is being denied herein.  Therefore, the claims for service connection for hypertension and gout as secondary to a respiratory disorder and/or back disability must be denied as without legal merit.  See Sabonis, 6 Vet. App. at 430.  

As the RO has done, the Board has also considered whether direct service connection may be warranted.  In making this determination, the Board has considered that, in his August 2012 notice of disagreement (NOD), the Veteran asserted that his hypertension and gout were from exposure to returning Veterans from Vietnam, with whom he was in contact.  As indicated above, in his April 2013 VA Form 9, the Veteran asserted that VA decided his case incorrectly because he was exposed by being housed with returning Veterans from Vietnam and cited 38 C.F.R. § 3.309(e).  In any event, for the reasons discussed above, the Board finds that the Veteran's assertion of Agent Orange exposure during service is not consistent with the circumstances of his service, see 38 U.S.C.A. § 1154(a), and the evidence does not show actual exposure to herbicides in service.  As discussed above, the Board assigns the Veteran's assertions of in-service herbicide exposure no probative value.  Accordingly, service connection on the basis of a relationship between the Veteran's current hypertension and gout and his claimed in-service herbicide exposure is not warranted.  

In considering whether the Veteran's hypertension and/or gout may be related to any incident of service other than alleged in-service herbicide exposure, the Board observes that service treatment records are negative for complaints regarding or treatment for hypertension or gout.  In his Report of Medical History in August 1971, the Veteran denied having or ever having had high or low blood pressure, swollen or painful joints or a bone, joint, or other deformity.  On examination, clinical evaluation of the upper and lower extremities and feet was normal.  Blood pressure was 138/84.  Nevertheless, service connection may be granted for disability diagnosed after service upon a showing of a nexus between that disability and injury or disease in service.  See, e.g., 38 C.F.R. § 3.303(d).

Service connection based on chronicity or continuity of symptomatology is for consideration with regard to the Veteran's hypertension, as it is a chronic disease listed in 38 C.F.R. § 3.309(a).  While not specifically noted to be a chronic disease in 38 C.F.R. § 3.309(a), gout is a type of arthritis in which uric acid crystals are deposited around joints, usually involving acute inflammation of only a single joint at a time.  See 68 Fed. Reg. 6,998, 7,008 (Feb. 11, 2003).  Because arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a), service connection based on chronicity or continuity of symptomatology is for consideration with regard to gout as well.  However, the Veteran has not asserted, nor does the record otherwise suggest, a continuity of symptomatology of hypertension and/or gout since service.  

Rather, during the November 2012 hearing, the Veteran testified that he was first diagnosed with hypertension in 2001 or 2002.  See DRO Hearing Tr. at 10.  The Veteran testified during the March 2014 hearing that his hypertension did not start near service, but had begun in the last couple of decades.  See Board Hearing Tr. at 14.  He testified in March 2014 that he started having problems with gout around the same time as, "everything else," including his hypertension.  Id. at 15.  Also, during VA treatment in July 2005, the Veteran denied any history of gout.  Service connection on a direct basis, then, must be established by evidence of a nexus.  

There is, however, no competent evidence of a relationship between the Veteran's current hypertension and/or gout and service.  The only evidence as to a possible nexus consists of the Veteran's conclusory statements alleging such a relationship.  Despite having worked in the past as a paramedic, the record does not reflect that the Veteran has had any specific training with regard to gout and/or cardiovascular disorders, such as hypertension, which would render him competent to make a link between his current disorders and service.  The specific issues of whether the Veteran has current hypertension and/or gout related to service are complex medical questions that fall outside the realm of common knowledge of a lay person, even one with past work experience as a paramedic.  See Jandreau, 492 F.3d at 1377.  Based on the facts of this case, the Board finds that the Veteran's assertions are not competent as to nexus and are afforded no probative value.  See Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1278.

As indicated above, the Veteran has reported the onset of his current hypertension and gout long after separation from service, for example, testifying during the March 2014 hearing that his hypertension did not start near service, but had begun in the last couple of decades and reporting that he started having problems with gout around the same time as, "everything else," including his hypertension.  See Board Hearing Tr. at 14-15.  Therefore, there has not been persistent observable symptomatology upon which a lay person might conclude that hypertension or gout was related to service.  

Moreover, the Veteran has not provided a statement or testified that a medical expert has told him that his hypertension and/or gout or could be the result service.  Thus, the Veteran has not offered competent report of what an otherwise competent expert has told him.  Jandreau, 492 F.3d at 1377.  

In light of the foregoing, the Board finds that the lay evidence of record is not competent as to the issue of whether the Veteran has current hypertension and/or gout related to service.  See King, 700 F.3d at 1344.  In addition, the medical evidence does not indicate that the Veteran has current hypertension and/or gout related to service.  

For the reasons stated above, the Board finds that the Veteran's current hypertension and gout were not incurred in or aggravated by service.  Thus, service connection on a direct basis is not warranted.  Also, as the evidence does not reflect that hypertension or gout was manifested to a compensable degree within one year of separation from service, service connection is not warranted on a presumptive basis.  See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

For the reasons discussed above, the claims are denied.  In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claims, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  


ORDER

Entitlement to service connection for a respiratory disorder, to include COPD, is denied.

Entitlement to service connection for a back disability, to include as secondary to a respiratory disorder, is denied.  

Entitlement to service connection for hypertension, to include as secondary to a respiratory disorder and/or a back disability, is denied.  

Entitlement to service connection for gout, to include as secondary to a respiratory disorder and/or a back disability, is denied.  


REMAND

Remand is required to afford the Veteran a VA examination.  

VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v, 20 Vet. App. 79.  The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one.  McLendon, 20 Vet. App. at 83. 

The Veteran has asserted that he received treatment for a rash or skin condition during service, received treatment within one year of separation from service, and has continued to experience problems with a skin disorder.  In a December 2011 VA Form 21-4142, he reported that he was discharged from the Army with a rash.  He added that he was treated less than a year after discharge and still had the scars and marks.  In a May 2012 statement, the Veteran indicated that his rash, marks, and scars were still on his body, adding that he had first been treated less than a year after discharge from service.  Despite this report of his initial treatment occurring after separation from service, the Veteran has since, on several occasions, described a skin disorder during service.  

In this regard, in his August 2012 NOD, the Veteran reported that he received treatment for a rash or skin condition during service, but there was a misdiagnosis.  He added that he was again treated for a skin condition within a year after separation from service.  During the November 2012 hearing, he testified regarding his claimed scars and marks that there was a record in service reporting that he had syphilis, although he asserted he did not.  See DRO Hearing Tr. at 7.  He added that he received treatment less than a year after separation from service which showed that his lesions were not syphilis.  He reported that he still had the lesions.  See Id. at 8.  During the March 2014 hearing, the Veteran testified that he was first diagnosed with and treated for a skin disorder in service, at Fort Ord, at which time the clinician reported that he had venereal disease, although the Veteran asserted that this was incorrect, as he had never had venereal disease.  See Board Hearing Tr. at 12.    

Service treatment records are negative for complaints regarding or treatment for a skin disorder.  Rather, in his Report of Medical History in August 1971, the Veteran denied having or ever having had skin diseases.  Clinical evaluation of the skin was normal.  In March 1972, he received treatment for a rash on his neck and back.  An emergency room record reports that the Veteran had a rash on his chest and back for two weeks.  The diagnosis was pityriasis rosea.  Despite the history of the rash being present for two weeks, although difficult to read, a record from the next day appears to report that the Veteran had a history of eruption since "Left 1970."  The pathological diagnosis was lichen planus. 

Subsequent VA and private treatment records document periodic findings of and treatment for skin disorders.  For example, the report of a January and February 1995 hospitalization indicates that the Veteran had no rashes, but states that, during his hospital course, he developed a rash, so Ceftriaxone was discontinued.  A December 2002 VA treatment record notes that fungus was back on the Veteran's lower leg.  Examination revealed a crusted rash on the left lower leg.  The Veteran reported that he had a problem with an "undiagnosed" rash in a circle, the size of a quarter, on his lateral ankle.  He stated that he had a biopsy taken during service, but was not told the result.  He indicated that his rash would come and go.  

An April 2008 VA treatment record shows that diclofenac caused a rash.  This was entered as an allergy.  An August 2009 VA skin risk screen revealed a rash on the Veteran's forearms and his left lower leg.  A skin risk screen during VA treatment in September 2010 revealed a rash with itching on both shins.  A December 2012 VA skin risk screen reflects a report of rashes per the Veteran.  On review of systems during VA treatment in May 2013, the Veteran reported that he had a scattered rash on his legs, which responded to steroids.  Examination revealed a left leg patch which was dry with rough edges and small patches of dry skin on the right leg.  During VA treatment in October 2013, a skin risk screen was normal per the Veteran; however, a VA treatment record dated two days afterwards reflects that the Veteran had a rash on the lower legs.  VA treatment records dated in February 2015 indicate that the Veteran had a skin rash.  Examination of the Veteran during VA treatment in July 2015 revealed a dry rash on the scrotum.  An August 2015 VA skin risk screen reports rashes and spots on both legs per the Veteran, as well as jock itch.  

While other VA treatment records during the pendency of the appeal reflect that the Veteran had no rash and no atypical skin lesions, the Veteran testified during the March 2014 hearing that his skin condition "always seems to come and go."  See Board Hearing Tr. at 11.  In light of the evidence of record, including the treatment for a skin disorder less than a year after separation from service, with one record which seems to reflect that the Veteran reported a history of a skin eruption since 1970, the Board finds that the Veteran should be afforded a VA examination to obtain a medical nexus opinion to evaluate his claim for service connection for a skin disorder.  

The most recent VA treatment records associated with the claims file are dated in November 2015.  As the claim is being remanded, any more recent VA treatment records should be obtained.    

In May 2012, the Veteran submitted a VA Form 21-4142 for Froedtert Memorial Hospital, reporting treatment in 1971 for a rash.  In the same form, he indicated that a biopsy had been done in 1971-1972.  Records from this facility, dated from 1972 to 1973 and 1994 to 1995 had been requested by the RO earlier that month.  The records received do document treatment for a skin disorder, beginning in March 1972.  Records from Froedtert Memorial Hospital, dated in 1971, were not requested.  During the November 2012 hearing, the Veteran testified that he received treatment at a Frederick Memorial Hospital (presumably, a transcription error) for his skin disorder in 1971 or 1972.  See DRO Hearing Tr. at 8.  During the March 2014 hearing, the Veteran testified that he went to Milwaukee General Hospital for his skin disorder in 1971.  See Board Hearing Tr. at 10.  He later testified that the only time he had a biopsy was in 1972.  Id. at 12.  As the claim is being remanded, the AOJ should ask the Veteran to clarify whether he received treatment for a skin disorder at Froedtert Memorial Hospital and/or Milwaukee General Hospital in 1971 and, if so, obtain those records.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file/e-folder records from the Muskogee VAMC and/or the Tulsa VA OPC, dated since November 2015.  

2.  Ask the Veteran to clarify whether he received treatment for a skin disorder at Froedtert Memorial Hospital and/or Milwaukee General Hospital in 1971.  If so, obtain these records, with any needed assistance from the Veteran.  

Two attempts should be made to obtain any relevant private treatment records, unless a formal finding can be made that a second request for such records would be futile.  See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012).

3. After the above development has been completed, afford the Veteran a VA examination to obtain an etiological opinion regarding his claimed skin disorder.  The claims file must be made available to, and reviewed by, the examiner.

Following examination of the Veteran and a review of the record, the examiner should identify any skin disorder present at any time since around September 2011, when the Veteran filed his claim for service connection, to include a rash.  In regard to each OR any diagnosed condition, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the condition had its clinical onset during active service or is related to any in-service disease, event, or injury.  

In rendering the requested opinion, the examiner should specifically consider the private treatment records dated in 1972, reflecting findings of pityriasis rosea and lichen planus.  

The examiner must provide a complete rationale for any opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

4.  Thereafter, readjudicate the claim, considering all evidence of record.  If the benefit sought remains denied the Veteran should be provided a Supplemental Statement of the Case (SSOC).  An appropriate period of time should be allowed for a response.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655 (2015).  

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
J. B. FREEMAN
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs