Citation Nr: 1757741 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 13-06 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), for purposes of accrued benefits. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Veteran's daughter ATTORNEY FOR THE BOARD A. B., Counsel INTRODUCTION The Veteran served on active duty from February 1966 to December 1968. He died in July 2016. The appellant is his widow and was accepted as a substitute claimant in March 2017. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The appellant and her daughter provided testimony during a videoconference hearing before the undersigned in August 2017. A transcript is of record. FINDING OF FACT COPD did not have its clinical onset in service or for many years thereafter and is not otherwise related to active duty, to include asbestos exposure. CONCLUSION OF LAW The criteria for service connection for COPD, for purposes of accrued benefits, have not been met. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Indeed, the Veteran received VCAA notice in January 2011, prior to the initial adjudication of the issue on appeal. Therefore, additional notice is not required, and any defect in notice is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The RO has obtained the Veteran's service treatment records and all identified VA and private treatment records. The Veteran has not identified any outstanding and available medical treatment records. The Board notes that a VA examination or opinion was not provided in this case, but finds that such an opinion is not warranted. The competent and credible evidence does not demonstrate or suggest a possible link between the respiratory disabilities in existence since the institution of the claim before the Veteran's death and military service. 38 C.F.R. § 3.159(c)(4). Therefore, VA has also fulfilled its duty to assist a veteran in the development of the claim. See 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). COPD Before his death, the Veteran asserted that he incurred COPD as a result of exposure to herbicides and toxic gas during service. As explained below, the Board finds that service connection is not warranted for COPD. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). In relevant part, 38 U.S.C. 1154(a) (West 2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (West 2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran served in Vietnam during the requisite period, and is presumed to have been exposed to herbicides during such service. 38 C.F.R. § 3.307(a)(6)(iii) (2017). However, COPD is not among the diseases listed at 38 U.S.C. § 1116(a)(2) (West 2012) or 38 C.F.R. § 3.309(e) for which service connection is warranted on a presumptive basis due to in-service herbicide exposure. See also 38 U.S.C. § 1116. Although COPD is not subject to presumptive service connection on the basis of herbicide exposure, the appellant could still establish service connection for this condition with competent evidence that it was incurred in service, was present during other presumptive periods, or by submitting medical or scientific evidence that it was in fact due to herbicide exposure or other disease or injury during service. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board notes the Veteran's statements that he began experiencing pulmonary issues during service in 1967 and that he had been treated for such symptoms ever since a 1970 VA examination. However, a September 1967 examination as well as a December 1968 separation examination during service were both negative for any findings regarding COPD or a respiratory disability. Post-service, the file does not demonstrate any treatment or examination in 1970 for COPD symptoms. The Veteran filed a claim for education benefits in 1974 and for service connection for unrelated disabilities in 1981 without any mention of COPD/respiratory symptoms. During an examination in 1981, he did not report any pulmonary symptoms or disabilities nor were any found upon examination. The first evidence in the claims file of the claimed disability is January 2010 private treatment records noting that the Veteran had had respiratory failure in September (presumably 2009) at which point the Veteran quit smoking. In the Veteran's claim for service connection benefits, he claimed pulmonary conditions that had onset in 2008. A February 2015 VA treatment record indicated that the Veteran had had COPD since 2010 according to the medical records, but that the Veteran had reported that he was initially diagnosed with COPD in 2003. Even assuming the earliest reported date is accurate, based on the Veteran's own statements to his medical treatment providers, his COPD began more than 30 years post-discharge. The Board finds that regarding the onset of the disability or symptoms, the evidence of record, including the Veteran's own reports to VA in his initial service connection claim and to his VA treatment providers, weighs against his later reports of onset during service, which were made in furtherance of his service connection claim. There is no evidence in the VA or private treatment records that the Veteran's respiratory disabilities, to include COPD, had onset during or as a result of military service, including exposure to herbicides or toxic gas. VA treatment records do document a long history of cigarette smoking resulting in oxygen therapy, respiratory failure, and emphysematous lung disease. The record, as just discussed, contains no medical scientific evidence linking the Veteran's COPD or any other respiratory disability to herbicide exposure or otherwise to service. The Veteran's statements in his substantive appeal could be viewed as reporting a continuity of symptomatology, but this report contradicts what he told VA treatment providers and to VA in his initial claim. The Veteran's report of a continuity of symptoms has not been consistent and is contrary to the known record; therefore the report is found to not be credible. The Board acknowledges the appellant's hearing testimony but notes that the appellant did not attest to any knowledge of any medical professional describing a medical link between herbicides and the Veteran's respiratory disabilities The Veteran and the appellant have both asserted the belief that a relationship exists between COPD and the in-service exposure to herbicides throughout the claim. However, as laypersons without the appropriate medical training and expertise, they are not competent to provide a probative opinion on this question of etiology. While a lay person can attest to his in service experiences and current symptoms, and to report diagnoses provided by medical professionals, it would require scientific or medical expertise to say that herbicide exposure caused COPD or any other respiratory disability. Cf. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran and the appellant in this case have not submitted any competent and credible evidence demonstrating a link between the Veteran's COPD or other respiratory disorders and military service. Given the lack of medical evidence in support of the claim and the absence of consistent reports of continuity, the evidence is against a finding of a nexus between the Veteran's respiratory disabilities and service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for COPD, for purposes of accrued benefits, is denied. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs