Citation Nr: 1634116 Decision Date: 08/30/16 Archive Date: 09/06/16 DOCKET NO. 10-42 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD), claimed as breathing problems. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service in the U.S. Coast Guard from February 1963 to September 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a November 2012 hearing conducted at the RO. A transcript of the hearing is of record. This case was previously before the Board in May 2014, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. FINDINGS OF FACT 1. A chronic lumbar spine disability was not manifest during active service; any current lumbar spine disability is not otherwise etiologically related to such service. 2. Diabetes mellitus was not manifest during active service or to a compensable degree within one year of service discharge; the Veteran's currently diagnosed diabetes mellitus is not otherwise etiologically related to such service. 3. COPD was not manifest during active service; the Veteran's currently diagnosed COPD is not otherwise etiologically related to such service. CONCLUSIONS OF LAW 1. A chronic lumbar spine disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 2. Diabetes mellitus was not incurred in or aggravated by active service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2015). 3. COPD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). VA must also make reasonable efforts to assist the appellant 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 claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. To the extent the Veteran has suggested additional private treatment records may be outstanding, the Board notes that he has either reported such records do not exist or has not provided the necessary authorization forms to allow VA to obtain these records, despite requests to do so. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded VA examinations in conjunction with his appeal. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159(c)(4) (2015); Wells v. Principi, 327 F.3d 1339, 1341 (Fed. Cir. 2002). These VA examinations are adequate for the purposes of the instant appeal, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide an adequate basis for the diagnosis and opinions rendered. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The instant appeal has been previously remanded, in May 2014 for additional development; there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, as noted above, the Veteran was provided a hearing before the Board in November 2012. The Board finds that the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and adjudication of the Veteran's appeal may proceed. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C.A. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic disabilities, including diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 C.F.R. §§ 3.307, 3.309(a). Finally, service connection for chronic disabilities listed under 38 C.F.R. § 3.309(a), which includes diabetes mellitus, may be warranted based on continuity of symptomatology. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran states that he currently suffers from diabetes mellitus, COPD, and a back disability as a direct result of his active service. Specifically, he asserts that he was exposed to a number of chemical substances while in service, including asbestos and lead paint, which he believes led to the development of diabetes mellitus and COPD. Further, he contends that a back injury sustained in service led to a chronic low back disability. The evidence reveals that the Veteran currently suffers from degenerative disc disease of the lumbar spine with spondylolistheses, diabetes mellitus type II, and COPD. However, the competent, probative evidence of record does not link these disabilities to the Veteran's active service. While the Veteran reports he sought treatment for a low back injury from private facilities after his injury, and was placed on light duty for two to three weeks, records in support of this contention are unavailable. Rather, service treatment records indicate the Veteran sought treatment for a three-week history of pain in the left paraspinal region at the lumbar level with activity, with no known injury. He was diagnosed with muscle strain, and found fit to return to duty. There is no evidence the Veteran complained of, or sought treatment for, breathing problems or any symptoms related to diabetes mellitus. Furthermore, an August 1967 Report of Medical history, completed prior to the Veteran's separation from service, shows he affirmatively denied shortness of breath, pain or pressure in the chest, chronic cough, and recurrent back pain. Finally, an accompanying Report of Medical Examination indicates normal clinical evaluations of the lungs and chest, endocrine system, and spine/musculoskeletal systems. In light of this evidence, the Board finds the Veteran did not suffer a chronic low back disability, any type of breathing disability, or diabetes mellitus, in service. Post-service evidence indicates that, in November 2002, he was found to have degenerative changes of the lumbar spine at multiple levels, most marked at L4-5, and was later diagnosed with degenerative disc disease of the lumbar spine. He was diagnosed with COPD in approximately 2003, then reporting a 125-pack history of smoking, at times up to three packs per day. He also reported having quit smoking in approximately 2001. Finally, with respect to diabetes, VA treatment records as recent as January 2004 specifically notes the Veteran was not then diabetic. Rather, he was not diagnosed with diabetes mellitus until approximately May 2008. The veteran maintains that he currently suffers from a genitourinary disorder as a direct result of his active service. Specifically, he asserts that his currently diagnosed benign prostatic hypertrophy is related to an in-service diagnosis of urethritis and prostatitis. While the evidence reveals that the veteran currently suffers from a genitourinary disorder, diagnosed as benign prostatic hypertrophy, the competent, probative evidence of record does not etiologically link the veteran's current disability to his service or any incident therein. Service medical records indicate the veteran sought treatment for recurrent episodes of urinary discharge and burning and was diagnosed with urethritis and prostatitis. A December 1966 Report of Medical Examination, completed upon the veteran's separation from active service, indicates a normal genitourinary clinical evaluation. While not dispositive of the issue of service connection, the Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). Further, as there is no evidence that diabetes mellitus manifested to a compensable degree within one year of service discharge, service connection may not be presumed. See 38 C.F.R. § 3.307, 3.309(a). Moreover, arthritis was not noted in service and the Veteran has not reported related symptomatology since; therefore continuity of symptomatology is not shown. The Veteran was afforded a VA examination with respect to his back disability in August 2010. After reviewing the claims file, including service and post-service treatment records as well as the Veteran's reported history, and physically examining the Veteran, the VA examiner opined that the Veteran's current degenerative disc disease is less likely than not related to his period of active service. In this regard, the VA examiner noted the Veteran's injury in service is noted to have been a muscle strain, which was acute and self-limited. The VA examiner also noted the lack of a back condition at service separation, and opined that the Veteran's current low back disability is more likely a part of generalized degeneration due to age. With respect to diabetes mellitus and COPD, the Veteran was provided VA examinations to address these issues in February 2015. The VA examiner reviewed the entire claims file and solicited a reported history from the Veteran, and also physically examined the Veteran. The VA examiner concluded that it is less likely than not that both COPD and diabetes mellitus are related to his period of active service, to include the inhalation of chemicals and/or asbestos. In this regard, the VA examiner noted that a CT scan performed in January 2015 was negative for asbestosis, but did indicate emphysematous changes, which is a progression of COPD. The VA examiner further noted that there is not enough study to support a cause and effect relationship between COPD and any particular chemical exposure including asbestos, and the Veteran's COPD is more likely to his remote history of heavy smoking. Finally, addressing diabetes mellitus, the VA examiner again noted that, per medical literature, there is not enough study to support a cause and effect relationship between diabetes and asbestos exposure. In sum, the Board finds that there is no evidence of a chronic genitourinary disorder in service. The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the veteran's current benign prostatic hypertrophy and his urethritis and prostatitis during active service. The preponderance of the evidence is against this aspect of the veteran's claim. The veteran has produced no competent evidence or medical opinion in support of his claim that his present genitourinary disorder is the result of in-service injury or illness, and the length of time between his last episode of prostatitis and current treatment weighs against granting the veteran's claim. The Veteran has not produced a competent medical opinion in support of his claim. The Board acknowledges that the Veteran himself has claimed his current low back disability, diabetes mellitus, and COPD are directly related to his active service. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain or difficulty breathing; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the Veteran's lay assertions of medical diagnosis or etiology are afforded no probative value and cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). In sum, the Board finds that there is no evidence of a chronic low back disability, diabetes mellitus, COPD or any other respiratory disability in service or a manifestation of diabetes mellitus within one year of discharge from active duty. The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current disabilities and his period of active service. There is no competent medical opinion in support of the Veteran's claim, whereas VA examiners have provided competent, probative negative etiological opinions which weigh against the Veteran's claim. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection for a low back disability, diabetes mellitus, and COPD. The benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107. ORDER Service connection for a low back disability is denied. Service connection for diabetes mellitus is denied. Service connection for COPD, claimed as breathing problems, is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs