Citation Nr: 1805231	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  09-48 142	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), emphysema, asthma, and reactive airway disease.   


REPRESENTATION

Veteran represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

B. G. LeMoine, Associate Attorney





INTRODUCTION

The Veteran served on active duty from September 1983 to July 1986 and from June 1989 to April 1991. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

In addition to the matter noted above, the Veteran has appealed his claims for entitlement to an increased disability rating for residuals, torn left meniscus, currently rated as 10 percent disabling; entitlement to a compensable rating for left knee scar; entitlement to an increased disability rating for tinnitus, currently evaluated as 10 percent disabling; entitlement to service connection for residuals, broken nose; and entitlement to service connection for left hip osteoarthritis.  The electronic record indicates that the AOJ is taking action on these issues.  The matters have not been certified for appellate review and the Board will not undertake review of the matters at this time.  If the matters are not resolved in the Veteran's favor, the RO will certify the matters to the Board, which will undertake appellate review of the RO's action.  Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board's jurisdiction is triggered by the timely filing of a notice of disagreement (NOD)); 38 C.F.R. § 19.35 (2016) (stating that certification is for administrative purposes only and does not confer or deprive the Board of jurisdiction over an issue).

 
FINDING OF FACT

The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran has a respiratory disability, to include chronic COPD, emphysema, asthma, and reactive airway disease etiologically related to an in-service injury, event or disease.  



CONCLUSION OF LAW

The criteria for entitlement to service connection for a respiratory disability, to include chronic COPD, emphysema, asthma and reactive airway disease, have not been met.  38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. 
§§ 3.102, 3.159, 3.303 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Analysis - Respiratory Disability

The Veteran contends that he has a respiratory disability, to include COPD, emphysema, asthma, and reactive airway disease that is directly related to his active service.  Specifically, the Veteran contends that during his active service he was stationed directly behind artillery guns and inhaled smoke when the guns were fired.  See VA Form 9, received December 2009. 

To establish service connection for a disability on a direct-incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004).  See also 38 C.F.R. § 3.303. 

The evidence of record shows that the Veteran has a current diagnosis of COPD.  See January 2008 VA General Medical Examination.  Therefore, there is evidence of a current disability. 

As to an in-service event, injury or disease, a review of the Veteran's service treatment records does not reflect any symptoms, complaints or treatment for a respiratory condition.  The Veteran's March 1991 separation examination reflects that his lungs and chest were normal.  Additionally, the Veteran stated he was in good health and smoked half a pack of cigarettes per day for the past three years.  The earliest indication in the record that the Veteran suffers from a respiratory disability is a July 2002 VA treatment record reflecting that he is a smoker with COPD. 

In summary, the service treatment records do not reflect in-service complains of a respiratory condition.  The earliest evidence of record of a respiratory condition is a July 2002 VA treatment record noting that the Veteran has COPD.  The VA treatment record is more than 11 years after the Veteran separated from active service.  Therefore, there is evidence of a current respiratory disability, but there is no evidence of an in-service injury, illness or disease to which the current respiratory disability may be medically attributed.  Rather, the evidence suggests that the Veteran did not have a respiratory disability until more than a decade after his active military service.  

The only evidence indicating an association between the current respiratory disability and his active service are the Veteran's own assertions.  In his December 2009 substantive appeal, the Veteran stated that he COPD is related to smoke he inhaled from artillery guns during his active service.  It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities.  See 38 C.F.R. § 3.159 (a) (1).  In certain instances, lay testimony may be competent to establish medical etiology or nexus.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).  However, the origin or cause of COPD is not a simple question that can be determined based on personal observation by a lay person.  It is not shown that the Veteran is qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of COPD.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  Hence, the Veteran's lay statement is not competent to establish medical etiology or nexus.  Id.  As such, the Board finds the question of whether the Veteran's current COPD does not lie within the range of common experience or common knowledge but requires special experience or special knowledge.

The Board acknowledges that the Veteran was not afforded a VA examination relating directly to his respiratory disabilities.  On these facts, however, an examination is not required.  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. § 5103A (d) (2); 38 C.F.R. § (c) (4) (i); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, the claim does not meet these requirements for obtaining a VA medical opinion.  Because the weight of the evidence demonstrates no respiratory disability in service, and that the symptoms of a respiratory disability were not present for many years thereafter, no examination is required.  Absent evidence that indicates that the Veteran has a current claimed disability that is related to an injury or symptoms in service, the Board finds that an additional VA examination or opinion is not necessary for disposition of the claim.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the Veteran's claim for entitlement to service connection for a respiratory disability has been met.  38 C.F.R. § 3.159 (c) (4).

In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a respiratory disability, to include chronic COPD, emphysema, asthma, and reactive airway disease.  Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
         






ORDER

Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease, emphysema, asthma and reactive airway disease is denied.




____________________________________________
LANA K. JENG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs