Citation Nr: 18146195 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-14 034 DATE: October 30, 2018 ORDER Entitlement to service connection for an upper respiratory disorder, to include sinusitis and allergic rhinitis is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDINGS OF FACT 1. The Veteran does not have sinusitis; his allergic rhinitis did not originate in service and is not related to any incident of service, including exposure to Freon. 2. The Veteran’s COPD did not have its onset during service and is not related to any incident of service, including exposure to Freon. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an upper respiratory disorder, to include sinusitis and allergic rhinitis are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for entitlement to service connection for COPD are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from October 1960 to March 1965. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. He requested a Board hearing in connection with his appeal, but later withdrew the request in a January 2016 written correspondence. 38 C.F.R. § 20.704(e). In this case, 38 U.S.C. 5103(a)-compliant notice has been provided. The Board notes that the Veteran’s May 2014 service connection claims for sinusitis and COPD were filed using VA Form 21-526EZ and developed under the Fully Developed Claim (FDC) program to expedite claims. Under this framework, a claim is submitted in a ‘fully developed’ status, limiting the need for further development of the claim by VA. When filing a FDC, a Veteran is to submit all evidence relevant and pertinent to his claim other than service treatment records and treatment records from VA medical centers, which will be obtained by the VA. Thus, the notice that is part of the claim form submitted by the Veteran satisfies the VCAA duty to notify. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim. Although a VA examination was not provided to address the claims, such an examination is not “necessary” because (as described in further detail below) the evidence does not establish that the Veteran has been diagnosed with an upper respiratory disorder that may be linked to service. As such, VA is not required to afford the Veteran an examination and therefore, has no duty to inform or assist that was unmet. Service Connection The Veteran is seeking service connection for an upper respiratory disorder and COPD, which he asserts are related to military service or began during that time. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as “chronic” by VA, which does not include sinusitis, allergic rhinitis, or COPD. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that a single accidental exposure to a high level of Freon-12 gas while working as a refrigeration mechanic in the Navy led to his development of an upper respiratory disorder, claimed as a sinus disorder, and COPD. His DD 214 confirms his military occupational specialty (MOS) as a refrigeration and air conditioning specialist, therefore, finds that the Veteran’s account of exposure to Freon is consistent with the Veteran's MOS and the circumstances of his service. 38 U.S.C. § 1154(a). However, based on the evidence in this case, the Board finds that service connection for sinusitis, allergic rhinitis, and COPD is not warranted. 1. Upper respiratory disorder Although the Veteran claims to have sinusitis, the primary impediment to a grant of service connection is the absence of a current disability. Service treatment records fail to reveal any significant signs or symptoms that can be construed as related to chronic upper respiratory disorder. His separation examination in March 1965 was essentially negative and clinical evaluation of all major body systems, to include the nose and sinuses was within normal limits. There is also no evidence of objective clinical findings or assessments sufficient to establish a diagnosis of sinusitis, in post-service treatment records. VA treatment records dated from 2009 to 2015 have been associated with the claims file and at no point reflect a current disability of sinusitis and no such complaints are documented in any report of past medical history. In this case, the medical evidence does not indicate that the Veteran currently has sinusitis. Without competent evidence of sinusitis, service connection for the disorder cannot be awarded. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, these records do show that allergic rhinitis was included on the Veteran’s VA Problem List, but the Veteran did not relate it to service or report continuous symptoms since service and is not on any prescription medications for this condition. In this case, he has not argued or submitted evidence to support a theory as to how his allergic rhinitis could relate to service or otherwise provided a basis for VA to conduct further development. Instead in a statement received in January 2016, the Veteran informed VA he had no additional evidence to submit. Since service and post-service treatment records provide no basis to grant this claim, and in fact provide evidence against it, the Board finds no basis for VA to provide examinations of the claimed disorders. Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (holding that VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). Here, the evidence of record fails to establish that an upper respiratory disorder, diagnosed as allergic rhinitis, was present in service and there is no such evidence relating it to military service. Absent such evidence the claim cannot be granted. 2. COPD Based on the evidence in this case, the Board also finds that service connection for COPD is also not warranted. Service treatment records fail to reveal any significant signs or symptoms that can be construed as related to COPD, or difficulties with breathing in general. The Veteran’s separation examination in March 1965 was negative and chest X-rays were clear. Clinical evaluation of all major body systems, to include the lungs and chest was within normal limits. The Veteran also did not report a history of continuous pulmonary symptoms or seek medical treatment for COPD until many years after his discharge. The earliest evidence (documentation) of any pertinent symptoms or complaints is found in a March 2014 VA pulmonary consult note, which shows the Veteran reported a history of COPD which he attributed to an accidental exposure to Freon gas from a refrigerator while serving in the Navy. The Veteran also reported a 45 pack a year smoking history, but had since quit smoking. However, the examiner did not otherwise comment on the etiology of the Veteran’s COPD, which had been diagnosed about 5 years prior to the examination. Unfortunately, the fact that the Veteran’s own account of the etiology of his COPD was recorded in his medical records is not sufficient to support the claim. See LeShore v. Brown, 8 Vet. App. 406 (1995) (holding bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional). There is also no medical opinion linking the post-service COPD to his military service. However since, service and post-service treatment records do not provide a basis to grant this claim, and in fact provide evidence against it, the Board finds no basis to obtain a VA examination or medical opinion. Instead, the only evidence that relates the Veteran’s claimed COPD to service are his own conclusory lay assertions, which alone are not sufficient to render a VA examination or opinion necessary and do not trigger VA’s duty to obtain a medical opinion to decide the claim. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (a claimant’s mere conclusory generalized statement that a service illness caused his present medical problems is not sufficient to entitle him to a medical examination). Thus, the evidence does not indicate that the COPD may be related to his exposure to Freon, such as to require an examination, even under the low threshold of McLendon. Furthermore, as for any assertions by the Veteran, or any representative, that there exists a medical relationship between his COPD and service, the Board notes that the matter of its etiology is one within the province of trained professionals. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), determining the etiology of COPD (as distinguished from merely reporting the presence of symptoms) is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). Doing so requires knowledge of the complexities of the pulmonary system and an understanding of the potential causes and risk factors for COPD and so is beyond the scope of knowledge of a lay person. In other words, mere observable symptomatology is insufficient. Since the Veteran is not shown to be other than a layperson without the appropriate training and expertise, he is not competent to render a probative (i.e., persuasive) opinion the medical matter upon which this claim turns. Id. (Continued on the next page)   Here, the evidence of record fails to establish that the Veteran’s COPD was present in service and there is no such evidence relating it to military service. The fact that he may have been exposed to Freon during service is conceded, but that fact alone does not establish a basis for the grant of service connection. Rather, the Freon exposure must cause the COPD. Absent such evidence the claim cannot be granted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.R. Bryant