Citation Nr: 1806102	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  16-07 900	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to service connection for chronic obstructive pulmonary disease (COPD).


REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

S. Morrad, Associate Counsel


INTRODUCTION

The Veteran had active service from February 1954 to December 1955. 
This matter comes before the Board of Veteran's Appeals (BVA or Board) from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

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) (West 2014).


FINDING OF FACT

The Veteran's COPD is not etiologically related to his military service.


CONCLUSION OF LAW

The criteria for establishing service connection for COPD have not been met.  38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).
	
Specifically, the Board finds that VA has satisfied its duty to notify under the Veterans Claims Assistance Act (VCAA) by way of a September 2014 letter which was sent prior to the initial unfavorable decision.  Such letter advised the Veteran of the evidence and information necessary to substantiate his claim.  Furthermore, the Veteran was informed of his and VA's respective responsibilities in obtaining such evidence and information.  
The Veteran's complete service treatment records are unavailable, having apparently been destroyed in the fire at the National Personnel Records Center (NPRC) in 1973.  Under such circumstances, VA has a heightened duty to search for medical information from alternative sources in order to reconstruct the service treatment records. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Jolley v. Derwinski, 1 Vet. App. 37, 39-40 (1990).  In that regard, the information of record indicates that efforts to obtain service treatment records were unsuccessful.  Particularly, in March 2015, the NPRC replied that the allegation has been investigated and no search was possible based on the information furnished.  The records for this period were kept in the OMPF destroyed in the 1973 fire at NPRC. With consideration of the facts set forth above, and in light of the apparent unavailability of portions of the service treatment records, the Board is satisfied that its duty has been met and that reasonable efforts to reconstruct the Veteran's service treatment records have been made.  The duty to assist has been fulfilled.

The Veteran has been provided with a VA examination that addressed the contended causal relationship between the claimed disability and active service.  38 U.S.C. §5103A; 38 C.F.R. §3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Given that the pertinent medical history was noted by the examiner, this examination report sets forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations.  Thus, the Board finds the examination of record is adequate for rating purposes and additional examination is not necessary regarding the claim adjudicated in this decision.  See also 38 C.F.R. §§3.326, 3.327, 4.2.

The Board thus finds that all necessary development has been accomplished and appellate review may proceed.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

Rules and Regulations

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. 1110 (West 2014); 38 C.F.R. 3.303(a) (2017).
Establishing service connection requires (1) evidence of a presently existing disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Service connection may be established on a presumptive basis for certain chronic diseases, if such diseases are shown to have been manifested to a compensable degree within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.

If there is no evidence of a chronic disease during service or an applicable presumption period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. §3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  Continuity of symptomatology after service 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. Continuity of symptomatology applies only to the diseases explicitly recognized in 38 U.S.C. § 1101 as "chronic."  Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013).  The theory of continuity of symptomatology does not apply to this case, as COPD is not listed as a "chronic" disease under 38 C.F.R. § 3.309(a).  

Service connection may also be granted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service.  38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d).

The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed.  See generally 38 U.S.C. § 1154(a).  Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); and 38 C.F.R. § 3.159(a)(2).  However, a lay person is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  See 38 C.F.R. §3.159(a)(1).  Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F. 3d 1274, 1278 (2010).

It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case.  When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant.  Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily.  It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. §3.102.

While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on behalf of the Veteran.  Gonzalez v. West, 218 F. 3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence of record.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed.  Timberlake v. Gober, 14 Vet. App. 122 (2000).

Factual Background

The Veteran contends that he has COPD that is due to his military service.  Specifically, the Veteran claims that his Military Occupational Specialty (MOS) as a wheel vehicle mechanic exposed him to industrial solvents in an enclosed building.  The Veteran also claims that the gloves and aprons he used at the time contained asbestos.  As a result, the Veteran claims that his exposure to industrial solvents, asbestos, and chemical fumes caused his COPD.

The Veteran's available service treatment records include a separation examination from December 1955 indicating "Normal" results for "Lungs and chest."

The Veteran's post-service treatment records show that he was seen at a VA medical center in January 2002, with the examiner noting a COPD possibility, due to cigarette smoking.

In June 2003, the Veteran was treated at a VA medical center for shortness of breath.  The examiner noted a history of shortness of breath secondary to smoking for many years.  An assessment of beginning COPD was provided.

The Veteran was provided with a VA examination in January 2015.  The Veteran reported that while in Korea, he worked on motor vehicles in a closed environment.  The Veteran stated that he can walk 50 years and then he has to stop due to shortness of breath.  He also stated that he has discomfort from lack of breathing 2-3 times a week.  The examiner provided a diagnosis of COPD and opined that the condition is less likely as not incurred in or caused by asbestos exposure during service.  The examiner reasoned that there are no medical records, x-rays, or CT scans which show asbestos exposure or any respiratory condition.  In the exam, the Veteran reported and presented with symptoms of COPD with the current use of medication.  The examiner noted that this suggests a diagnosis of COPD that is less likely connected to service due to the lack of documentation in regards to asbestos exposure or a respiratory condition.

In a June 2015 addendum opinion, the examiner who conducted the January 2015 examination opined that the Veteran's COPD is less likely as not proximately due to TCE and other solvent exposure while performing his duties in the motor pool.  The examiner added that the Veteran's reported exposure to TCE and other solvent exposure while in service is reflected in the DD214 as MOS of wheel vehicle mechanics and is acknowledged.  However, the examiner noted that TCE and other solvents do not commonly affect the respiratory system.  Rather, they have potential harmful effects in the nervous system, such as the kidney and liver, as short or long term effects depending on the nature and course of exposures.  The examiner added that direct association of COPD and the TCE exposure is not well established in the medical literature.  The examiner concluded that the nexus between current COPD and the TCE exposure while in service back in 1955 cannot be made without speculation at this time.

Analysis

As an initial matter, the Board notes that the Veteran has been diagnosed with COPD.  As such, the Board finds that the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Thus, the issue turns upon whether there is evidence of an event, injury, or disease in service, and evidence of a nexus between the claimed in-service disease or injury and the present disability.

The Veteran's separation report from service in December 1955 indicated "Normal" results for "Lungs and chest."

The Veteran contends that his COPD is directly related to his military service, but the Board finds that his opinion has little probative weight.  Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011).  The Veteran is certainly competent to report symptoms of COPD.  However, the etiology of COPD that has its onset many years after exposure to industrial solvents, asbestos, and chemical fumes is a complex medical question because it may be due to many different causes, and the Veteran in this case has not been shown by the evidence of record to have medical training or skills necessary to make this determination.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Based on the VA examination and addendum report discussed above, the Board finds that service connection is not warranted for COPD.  Although the Veteran has been diagnosed with COPD, there is no probative evidence that shows that this was caused by his service.  After thoroughly reviewing the Veteran's medical history, the examiner provided a negative nexus opinion, stating that the Veteran's COPD was not caused by his exposure to industrial solvents while in service, supported by an adequate rationale.  Also, the VA examiner found that there were no x-rays or CT scans which showed findings consistent with asbestos exposure.  The Board finds that the VA examiner's opinion is highly probative, especially given the lack of any medical evidence to the contrary.

The preponderance of the evidence is against the claim for service connection for COPD and the benefit of the doubt rule does not apply.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for COPD is denied.



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs