Citation Nr: 1804900 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-30 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a lung condition other than pleural calcifications to include chronic obstructive pulmonary disease (COPD) and emphysema. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his daughter ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1952 to August 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction was transferred to Detroit, Michigan. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT With the exception of the Veteran's previously service-connected pleural calcifications, the weight of the probative evidence is against a finding that the Veteran's COPD is the result on any in-service exposure, and the Veteran did not manifest a diagnosis of bronchiectasis within one year of separation of service; and continuity of symptomology since separation of service has not been established. CONCLUSION OF LAW The criteria for service connection for a lung condition other than pleural calcifications to include COPD and emphysema have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. Additionally, the Veteran testified at a personal hearing before the Board, and a transcript of the hearing is of record. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiner had a full and accurate knowledge of the Veteran's disability and contentions, and grounded the opinion in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Lung Disorder At issue is whether the Veteran is entitled to service connection for a lung condition other than pleural calcifications to include COPD and emphysema. The Board notes that the Veteran has been previously granted service connection for pleural calcifications. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection can also be established through application of statutory presumptions, including for chronic diseases like bronchiectasis, that become manifest to a compensable degree within one year of separation of service. 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. Id. The Veteran testified at a personal hearing before the Board in November 2017. The Veteran reported that during his period of service he was exposed to a number of industrial contaminants including asbestos and lead paint, and that he believed that his COPD was due to exposure to these contaminants. See Transcript. He testified that he had smoked for a number of years and had quit after being diagnosed with COPD in approximately 1986. The Veteran's treatment records are silent for reports of or treatment for a lung disorder. During his service separation examination, the Veteran's lungs were evaluated as normal. In a survey of medical history provided after separation of service in February 1957, the Veteran denied having or ever having had asthma, shortness of breath, or pain or pressure in the chest. Treatment records indicate that the Veteran manifested lung disorders throughout the period on appeal including COPD and emphysema. The Veteran submitted a written statement in July 2009. The Veteran claimed that during his period of service he sought treatment for trouble breathing, and that he was exposed to a number of industrial contaminants including asbestos. The Veteran indicated that he had been diagnosed with bronchitis and emphysema. The Veteran admitted a history of smoking but claimed he quit in 1990. The Veteran reiterated these claims in subsequent written statements including in a May 2011 VA Form 9. A December 2010 private treatment record indicates that the Veteran did not manifest a pulmonary condition during the 1950s. The Veteran underwent a VA examination in January 2012. The Veteran reported that he was diagnosed with COPD in 1986 and that he experienced chronic shortness of breath. The examiner noted that the Veteran smoked one and a half packs of cigarettes per day for 30 years but that he had quit smoking 21 years prior to the examination (approximately January 1991). The examiner also noted that the Veteran had a history of asbestos exposure. The examiner diagnosed the Veteran with COPD and bilateral pleural calcifications. The examiner opined that the Veteran's bilateral pleural calcifications are as likely as not related to the Veteran's exposure to asbestos, but the examiner opined that the Veteran's COPD was due to his history of chronic smoking rather than asbestos exposure. A number of written statements from the Veteran's friends and family submitted in April 2013 indicated that the Veteran continued to manifest a lung disorder and difficulty breathing. An August 2014 private opinion from Dr. Hughes diagnosed the Veteran with COPD and indicated that it may be due to the Veteran's exposures during service. However, he provided no explanation for why this would be so, and cited to no medical literature to underscore his conclusion. Additionally, he suggested that cigarette smoking could be the cause of the COPD. The weight of the evidence indicates that the Veteran is not entitled to service connection for a lung condition other than pleural calcifications to include COPD and emphysema. The Veteran's treatment records are silent for reports of or treatment for lung conditions like COPD, and the Veteran was not diagnosed with lung problems until decades after separation of service. Moreover, a December 2010 private treatment record indicated that the Veteran's did not develop a pulmonary condition during the 1950s. The Board notes that the Veteran was exposed to asbestos during his period of service. Nevertheless, the Veteran has already been assigned service connection for pleural calcifications which have been found to have been related to asbestos exposure. Additionally, a January 2012 VA examination specifically indicated that the Veteran's COPD was not related to asbestos exposure but was due to his 30 year history of smoking. The Board acknowledges that Dr. Hughes indicated that the Veteran's COPD may be due to his period of service. Medical opinions expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus Obert v. Brown, 5 Vet. App. 30, 33 (1993). Therefore, the Board cannot afford the August 2014 private opinion much weight. Moreover, the private medical opinion did not include any explanation or rationale for the conclusion, citing no medical literature and providing no medical explanation of the anatomical connection between asbestos exposure or lead paint exposure and the development of COPD and/or emphysema; and a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998). A second medical opinion was provided by Dr. Gay, but this opinion simply linked the pleural plaquing to the Veteran's asbestos exposure and service connection has already been granted for the pleural plaquing. As such, this opinion does not advance the claim for service connection for COPD. Here, the weight of the probative evidence of record simply fails to demonstrate a medical nexus between and in-service incurrence and a current diagnosis; of which there is also no record of a diagnosis of bronchiectasis within one year of separation or continuity of symptomology since separation of service. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for a lung condition other than pleural calcifications to include COPD and emphysema is denied. ORDER Service connection for a lung condition other than pleural calcifications to include COPD and emphysema is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs