Citation Nr: 20028064 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 14-29 201 DATE: April 22, 2020 ORDER Entitlement to service connection for urinary tract infection (UTI) is denied Entitlement to service connection for chronic pulmonary disease (COPD), including as due to asbestos exposure, is denied. FINDINGS OF FACT 1. A urinary tract disorder was not manifest during service, is not attributable to service. 2. COPD did not manifest in service and is not caused by service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a urinary tract disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 2. The criteria for entitlement to COPD, claimed as due to asbestos exposure during service, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) in the United States Army National Guard from June 1984 to September 1984 and on active duty in the United States Navy from March 1986 to March 1990. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This case was previously before the Board in November 2016; it was remanded to obtain private medical records; an examination for a urinary tract infection and for a COPD examination. Examinations for a urinary tract infection and for COPD were performed and the necessary medical records were obtained. For these reasons, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection will be granted if it is shown that the Veteran has a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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 service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Evidence The Veteran’s service treatment records were silent for complaints, treatment or a diagnosis for a urinary tract infection. Throughout the Veteran’s service treatment records, he consistently complained of and was seen for upper respiratory issues. The Veteran served in the Navy as a boiler technician and was enrolled in an asbestos surveillance program. In April 1986, the Veteran was seen for a cough and congestion. The clinician noted that the Veteran had an upper respiratory infection. See March 2007 STR-Medical, p.9. In December 1987, the Veteran was seen for a sore throat and a non-productive cough. The Veterans nose and lungs were clear, but his tonsils were slightly enlarged. See March 2007 STR-Medical, p.34. In another December 1987 STR, the Veteran complained of a runny nose, cough and burning chest. The Veteran was promptly seen for an upper respiratory infection. See March 2007 STR-Medical, p.40. In September 1988, the Veteran was seen for a sore throat, nasal congestion and a cough which produced yellow mucus. The Veteran was prescribed Tylenol. See March 2007 STR-Medical, p.26. In December 1988, the Veteran was diagnosed with strep A (strep throat) and placed on penicillin. See March 2007 STR-Medical, p.24. In December 1988, the Veteran complained of chest pain that had occurred for two days. The Veteran reported having shortness of breath and that it hurt to take a deep breath. The Veteran’s lungs were clear, but there was pain on palpation to the left lateral aspect and when the Veteran lifted his left arm over his head. The Veteran was given medication and told to heat the area 2-3 times a day. See March 2007 STR-Medical, p.22. In October 1989, the Veteran complained of nasal and sinus congestion and producing thick mucus. See March 2007 STR-Medical, p.18. In February 1990, the Veteran was seen for nasal congestion, a cough and a sore throat. See March 2007 STR-Medical, p.13. In a February 1990 report of medical examination at discharge, the clinical evaluation revealed the Veterans lungs and chest, and mouth and throat were all normal. See March 2007 STR-medical, p.108. A review of the Veteran’s post service prison medical records has been conducted. The Veteran was seen numerous times at the prison clinic for respiratory issues such as sore throat, nasal drainage; a productive cough and shortness of breath. In a February 2010 respiratory clinic flow chart, the Veteran was diagnosed with COPD. The clinician noted that the Veteran’s smoking habits were 4 times a month and that he was using inhalers. See February 2012 Medical Treatment Record-Non-Government Facility Medical, p.28. In an October 2010 prison hospital record, the clinician noted that the Veteran had a stuffy nose. See June 2017 Medical Treatment Record-Non-Government Facility, p.13. In a December 2011 statement in support of claim, the Veteran indicated that he believed his condition had worsened; because he was short of breath while walking and had to start using an inhaler again. See December 2011 VA 21-4138 statement in support of claim, p.1. Private pulmonary treatment records show treatment in 2012 for shortness of breath. After imaging studies, bronchoscopy, ultrasound and biopsy procedures, the Veteran was diagnosed with a hilar mediastinal mass in the right lung and enlarged lymph nodes. In a February 2013 letter, the attending physician noted that these findings were best assessed as lung cancer and that the Veteran was undergoing chemotherapy. In a January 2014 radiology note, the Veteran was seen for a cough. The clinician’s findings were that the Veteran’s heart size and pulmonary vascularity were unremarkable, and his lungs were clear. The clinician also gave the impression that there was no acute cardiopulmonary pathology. See June 2017 Medical Treatment Record-Non-Government Facility p.128. In a February 2014 correctional clinic note, a clinician indicated that the Veteran had a diagnosis for several conditions including COPD and testicular cancer. The Veteran was on chemotherapy at the time of the visit. See June 2017 Medical Treatment Record-Non-Government Facility Medical, p.46. In March 2014, the Veteran submitted a notice of disagreement (NOD). The Veteran reported that he smoked throughout his enlistment and he was treated for a urinary tract infection while in-service. See March 2014 NOD, p.1. In a March 2015 correctional clinic note, a clinician gave the Veteran a chronic illness evaluation. The clinician noted that the Veteran had experienced nasal sinus drainage; a sore throat; palpations; shortness of breath, a cough, wheezing and right chest pain with coughing. See June 2017 Medical Treatment Record-Non-Government Facility, p.43. In April 2016, the Veteran was given an imaging examination of the right hip. The examiner indicated that there was calcification in the pelvis which appeared to be phlebolith or possible stone in the urinary bladder. See June 2017 Medical Treatment Record-Non-Government Facility p.114 In a June 2016 correctional clinic note, the Veteran was seen for a sore throat; productive cough, earache and pressure across his face. The Veteran was fluid behind left ear drum, nasal cavities and his throat was red. See June 2017 Medical Treatment Record-Non-Government Facility p.61. In a February 2017 clinic note, the Veteran was seen for a cough, bloody nose, and for blood in his bowels and urine. The Veteran reported that his kidneys did hurt, and the clinician noted that his urine showed blood or signs of infection. The Veteran’s ears and lungs, throat and nasal cavities were red, and he had a post- nasal drainage. See June 2017 Medical Treatment Record-Non-Government Facility p.53 In May 2017, the Veteran submitted a correspondence. The Veteran indicated that he had begun taking a new medication since it was hard for him to urinate due to his urinary tract infections and due to a burning sensation while urinating. See May 2017 correspondence, p.1. In October 2017, the Veteran was afforded a VA respiratory conditions examination. The examiner reviewed the claims file; considered the Veteran’s lay statements and conducted an examination. The Veteran reported coughing and wheezing while he was in-service. The examiner noted that the Veteran was diagnosed with COPD in 2012. The Veteran also reported that he smoked 2-3 packs of cigarettes a day for 25 years, quitting in 2008. The Veteran indicated that he worked with heavy equipment and at a hydroelectric plant for 7-8 years before he went to prison. The Veteran also indicated he had service exposure to asbestoses but did not have a diagnosis of asbestosis. The Veteran’s conditions required him to take inhaled medications but did not impact his ability to work. The examiner concluded that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale as that the Veteran’s in-service conditions were acute and self-limiting and that he did not have a chronic lung condition or treatment in-service; also due to the Veteran not being diagnosed with COPD until more than 22 years after service. The examiner found that the Veteran’s respiratory condition was caused by his long history of cigarette smoking. The examiner also noted that the Veteran did not have a diagnosis for asbestosis and indicated that medical literature stated that asbestos exposure does not cause chronic obstructive pulmonary disease. However, the examiner did not cite this literature. It is not clear why neither the Veteran nor the examiner made any comment about the history of the lung mass and treatment in 2012-13. On the same day, the Veteran underwent a Urinary Tract VA examination. The examiner reviewed the claims file; considered the Veteran’s lay accounts and conducted an evaluation. The examiner noted that the Veteran was diagnosed with a urinary tract infection in 2016. The Veteran reported that he had a urinary tract infection in 1987 while stationed aboard USS Nassau; but could not remember if he visited a doctor. The examiner concluded that the condition claimed was less likely than not incurred in or aggravated by service. The rationale was that the Veteran’s STRs did not show an acute or chronic urinary tract infection in-service; also, the Veteran was not diagnosed until almost 20 years after service. Analysis Urinary Tract Disorder In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for a urinary tract disorder is not warranted. As noted above, a Veteran seeking disability benefits must establish not only the existence of a current disability, but also a connection (nexus) between his service and the disability. See Shedden, supra. Although, the Veteran indicated he was treated for a urinary tract infection while in-service, there is no evidence of record indicating that occurred. In reaching these conclusions, the Board has carefully considered the Veteran's lay assertions in the evidence or record. The Board acknowledges that, as a lay witness, the Veteran is competent to report his medical history and symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469-79 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). The Veteran is competent to report the onset and discomfort of his condition, including a burning sensation during urination and having blood in his urine. However, the report of the onset in service warrants low credibility because there is no record of any diagnosis or treatment in service. Nevertheless, determining the potential causes of a post-service urinary tract disorder involving in-depth knowledge of urology, orthopedics, and endocrinology are beyond the scope of lay observation. See id. Thus, determinations as to the etiologies of the Veteran's urinary tract disorder is not susceptible of lay opinion and require highly specialized training. See Jandreau, supra (providing that the question of whether lay evidence is competent and sufficient is an issue of fact that is to be addressed by the Board); Layno, supra. Therefore, the Veteran's lay assertion does not constitute competent evidence concerning the etiology of a urinary tract infection. See 38 C.F.R. § 3.159(a)(1) (2017) ("Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions."). The Board assigns greater probative value to the October 2017 VA examiner's finding as there was no showing of a chronic or acute UTI in service and the Veteran was not diagnosed until more than 20 years after service. Here, the weight of evidence of record is also against finding that the Veteran's urinary tract disorder initially manifested in, or is otherwise related to, his active service. The Veteran was not diagnosed with a urinary tract disorder until 2016, more than 20 years after the Veteran's active service. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered as evidence against a claim of entitlement to service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed Cir 2000) (noting that the trier of fact should consider evidence of a prolonged period without medical complaint along with all the relevant facts and available evidence). In addition to the passage of time between the Veteran's active service and his medical treatment while in prison, there is no competent evidence or opinion suggesting there exists a medical nexus between the Veteran's current urinary tract disorder and his active service. As the preponderance of the evidence is against the claim for service connection, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. Service connection for a urinary tract disorder is denied. COPD Based on a review of the evidence, the Board concludes that service connection for COPD, is not warranted. Although the evidence shows several episodes of shortness of breath, productive mucus, coughing, sore throats, chest pains and nasal troubles in service and a current diagnosis of COPD, the evidence does not support a finding of a nexus between the current diagnosis of COPD and the Veteran’s military service. The Board acknowledges the Veteran’s lay statements that he was exposed to asbestos while in-service; and that’s what caused his COPD. Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana at 435, however, the etiology of COPD, falls outside the realm of common knowledge of a lay person. See Jandreau, supra. As such, his own assertions as to etiology have no probative value. Additionally, while there are several records of the Veteran suffering from upper respiratory infections in-service, there is no competent evidence that the Veteran was suffering from a chronic condition while in-service. The 2017 examiner found that these episodes were self-limiting. Furthermore, in the Veteran’s substantive appeal and VA examination, the Veteran admitted to smoking 2-3 packs of cigarettes a day throughout his time in-service and that he did not quit smoking until 2008 after 25 years of smoking and almost 20 years after service. Additionally, the October VA examiner indicated that the Veteran’s COPD was not caused by asbestos exposure, since he did not have an asbestos diagnosis. The examiner indicated that the Veteran’s condition was due to his prolonged tobacco use. In addition, the Veteran was diagnosed with the condition until more than 22 years after service. With respect to the 2012-13 identification and treatment for a right lung mass, the Board finds that following the chemotherapy, the records are silent for residuals or recurrence and there is no lay or medical evidence that this lung mass was caused by any aspect of service. The Veteran was likely exposed to friable asbestos fibers during his service aboard USS Nassau as a boiler technician as shown by his participation in the surveillance program. Yet there are no records in or after service of evidence of lung damage due to asbestos or a diagnosis of asbestosis. As for the Veteran's March 2014 NOD indicating he smoked throughout his entire enlistment; and the VA examiners' opinion that the COPD is related to smoking, for claims received by VA after June 9, 1998, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to the Veteran's use of tobacco products during service. 38 C.F.R. § 3.300. The Veteran's claim was filed after June 9, 1998. Therefore, even though the Veteran testified that his smoking began in service and the evidence suggests that his COPD is due to smoking, service connection for COPD, on this basis is precluded by law. As the preponderance of the evidence is against the claim for service connection, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. Service connection for COPD, including as due to asbestos exposure is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Long-Ellis, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.