Citation Nr: 1755022 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-10 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lung condition, to include chronic obstructive pulmonary disease (COPD) and interstitial lung disease (ILD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Medina, Associate Counsel INTRODUCTION The Veteran served on active duty with the Army from May 1966 to May 1969 and from October 1970 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A transcript of the hearing is of record. This matter was previously remanded in October 2015 to afford the Veteran a Board hearing. In May 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. FINDING OF FACT A lung disability was not shown in service or for several years thereafter, and the most probative evidence indicates that the Veteran's current lung disability is not related to service. CONCLUSION OF LAW The criteria for establishing service connection for a lung condition, to include COPD and ILD have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, if a veteran was exposed to an herbicide agent during military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Lung disorders other than lung cancer are not included in the list at 38 C.F.R. § 3.309(e). Accordingly, the presumptive provisions of 38 C.F.R. § 3.307(a)(6) and 3.309(e) are not for application for either of the appealed claims. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. However, when a veteran is not found to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine whether service connection may be established on the direct basis with proof of actual causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his COPD and ILD are related to his active service, to include as due to asbestos or herbicide agent exposure. The Veteran served in Vietnam from August 1971 to February 1972, therefore exposure to herbicide agents is conceded. However, the Board notes that the Veteran did not respond to the August 2012 request to provide more details regarding his alleged asbestos exposure, and the record does not otherwise establish in-service asbestos exposure. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As an initial matter, the Board notes that the Veteran has been diagnosed during the course of the appeal with various lung conditions, to include COPD and ILD. Accordingly, the first element of service connection, a current disability, is met. However, as the Veteran has not been diagnosed with a respiratory cancer, the provisions under 38 C.F.R. § 3.309(e) for presumptive service connection due to herbicide agent exposure do not apply. Thus, to establish service connection, competent evidence linking the current disability with service is needed. However, on this question, the preponderance of the competent and probative evidence is against the claim. Beginning in February1968, service treatment records show numerous visits to sick call for cold symptoms, coughing and complaints of sore throat. In February 1968, the Veteran was diagnosed with group b strep throat and in March 1968 he was diagnosed with upper respiratory infection. Thereafter, in February 1969, the Veteran was treated for acute tonsillitis. Per an April 1969 x-ray, the lungs and chest were found to be normal. The Veteran also complained of sore throat with a productive cough at that time. The Veteran's June 1972 separation examination shows normal chest and lungs. Following service, the Veteran's VA treatment records show that in December 2006 the Veteran presented to the emergency room with fever, chills, and four days of non-productive cough. Thereafter, in January 2007 the Veteran was diagnosed with viral pneumonia with concerns of interstitial lung disease. In a May 2007 follow-up treatment, the physician noted the Veteran with interstitial pulmonary infiltrates. On a November 2007, CT chest scan, the physician assessed interstitial infiltrates and sub-pleural disease and noted that the Veteran has a significant history of tobaccoism. In November 2009, the Veteran was again treated for pneumonia. Thereafter, the Veteran has continuously sought treatment for his COPD and ILD. Most recently, in July 2017, the Veteran was seen for follow-up treatment and the physician noted that the Veteran continued to have an intermittent dry cough without sputum production. Further, the Veteran was noted as being very fixated on his exposure to Agent Orange and it being the primary etiology of his pulmonary fibrosis. The physician's impression included ILD and dyspnea on exertion and noted that his ILD appears chronic and not progressing at this time. The Veteran underwent a VA respiratory examination in connection with his claim in July 2010. At that time, chest x-rays findings revealed mild interstitial fibrotic changes throughout both lungs, most prominent in the bases. No new pulmonary infiltrate was identified and the lungs were somewhat hyperexpanded. The impression was COPD and interstitial fibrosis. Pulmonary function testing (PFT) at that time revealed spirometry and lung volume consistent with nonspecific ventilator defect with reduced FVC, FEV1, but normal FEV1/FVC ratio. The examiner diagnosed COPD and opined that the current lung condition was not related to service, to include alleged asbestos exposure or pneumonia in service. In fact, the examiner opined that the current lung condition was due to or a result of smoking because the Veteran has a greater than 50-year smoking history. Further, the examiner stated that there was no evidence of asbestos exposure in service and the Veteran had pneumonia in the military which was due to smoking exposure. There is no medical opinion to the contrary. During his hearing in 2017, the Veteran testified that after service he worked as a switchman at the railroad and then drove a truck. He stated that he was a smoker but had not smoked for about 20 years. However, review of his VA treatment records show he was still smoking one to two packs of cigarettes a day as of November 2008, although he had attempted to quit in 2007. Current treatment records indicate the Veteran no longer smokes. The Board acknowledges that the Veteran reported his lung disability was not actually emphysema or COPD, nor was it lung cancer, but that he was unwilling to undergo a biopsy to determine what the actual diagnosis was due to potential complications. While the Veteran believes his current lung condition is related to his service, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, there are multiple different types of lung conditions and causes for such. Thus, the diagnosis and etiology of his lung conditions are matters requiring medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his lung condition is not competent medical evidence. Moreover, whether the symptoms he experienced in service or following service are in any way related to his current lung condition is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Board finds the diagnoses of COPD and ILD in the VA treatment records, as well as the diagnoses and opinion of the VA examiner, to be significantly more probative than the lay assertions. In sum, there is no medical opinion linking the Veteran's current lung disorders with his military service. To the extent the Veteran may have smoked in service, service connection cannot be established for conditions due to use of tobacco products. 38 C.F.R. § 3.300. Accordingly, the preponderance of the competent and probative evidence is against a finding that the Veteran's current lung conditions are related to service and the claim for service connection for a lung condition is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 56. ORDER Entitlement to service connection for a lung condition is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs