Citation Nr: 21062378
Decision Date: 10/07/21	Archive Date: 10/07/21

DOCKET NO. 14-33 544
DATE: October 7, 2021

ISSUES

1. Entitlement to service connection for a disability of the bilateral lower extremities, to include as due to cold weather injuries.

2. Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disease (COPD).

ORDER

Entitlement to service connection for a disability of the bilateral lower extremities, to include as due to cold weather injuries is denied.

Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disease (COPD) is denied.

FINDINGS OF FACT

1. The Veteran's disability of the bilateral lower extremities is not etiologically related to an event, disease, or injury of service origin, nor was it shown in service or manifest to a compensable degree within a year of service.

2. The Veteran's lung disorder, to include COPD, is not etiologically related to an event, disease, or injury of service origin, nor was it shown in service or manifest to a compensable degree within a year of service. 

CONCLUSIONS OF LAW

1. A disability of the bilateral lower extremities was not incurred in or aggravated by military service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(a).

2. A lung disorder, to include COPD, was not incurred in or aggravated by military service, and may not be presumed to have been so incurred. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1955 to November 1958. This case comes before the Board of Veterans' Appeals (the Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

By way of background, the Veteran's claim for entitlement to service connection for a lung disability was first denied by the RO in September 1981. That decision was not immediately appealed and became final.

The Veteran then filed a to reopen the claim, in addition to a subsequent claim for entitlement to service connection for a disability of the bilateral lower extremities. The Veteran then appeared at a Travel Board hearing in June 2016 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file.

Following the Veteran's hearing, in an August 2016 Board decision, the claim of entitlement to service connection for the lung disability was reopened, and both that claim and the claim for entitlement to service connection for a disability of the bilateral lower extremities were remanded for additional development.

Next, in a Board decision from September 2017, both claims were denied. The Veteran filed a subsequent Motion for Reconsideration of his denial of the lung disorder claim, and in February 2018 the Board denied the Veteran's motion.

Subsequently, the Veteran appealed the September 2017 Board decision to the United States Court of Appeals for Veterans Claims (the Court). In May 2019 the Court issued a Memorandum Decision, setting aside the Board's September 2017 decision and remanding the claims for disabilities of the bilateral lower extremities and for a respiratory condition.

The Board implemented that Court Decision by way of an October 2019 remand for additional development and adjudication. The claims returned to the Board, and in a subsequent Decision from August 2020, the Board denied each of the Veteran's claims.

The Veteran then appealed that Board Decision to the Court again, and in a Joint Motion for Remand (JMR) from June 2021, the Court vacated the Board's August 2020 Decision, and remanded the claims to the Board for further adjudication.

Those claims have since returned to the Board.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2).

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

The Board also notes that in the Court remand from May 2019, they noted that it was unclear as to whether VA has fulfilled its duty to assist in seeking the Veteran's service hospitalization records. While the Veteran's service treatment records are acknowledged to have been destroyed by fire, the Court remanded this matter, in part, for the Board to direct the RO to request any outstanding hospitalization records related to the Veteran's diagnosis of pneumonia while in service.

That information was requested to the Veteran in November 2019. In a response from January 2020, the Veteran's spouse was contacted, and she stated that her "husband did not go to a brick-and-mortar hospital facility. The Veteran received medical treatment for pneumonia in a tent that was used as a makeshift hospital to treat Veterans." As such, those records are not available. The Veteran's claims file includes a record of search request that was closed out in January 2020, as it was determined that "no records [are] available." In consideration of those additional attempts, as required by the May 2019 Court remand, the Board finds that VA's Duty to Assist has been met.

The Board further notes that no additional Duty to Assist errors were identified by the June 2021 Court JMR.

Service Connection

To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a).

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). This rule does not mean that any manifestation in service will permit service connection. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

In deciding the Veteran's claim, 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, 53-56 (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.

1. Entitlement to service connection for a disability of the bilateral lower extremities, to include as due to cold weather injuries.

The Veteran has argued that the disability to his bilateral lower extremities is related to his exposure to cold weather while in service. See June 2013 Notice of Disagreement (NOD).

The Veteran and his Spouse were given a hearing before the undersigned in June 2016. During the hearing, the Veteran testified that he had developed cold-weather related injuries "in the winters of '56 and '57." The Veteran's Spouse stated that his leg injuries was from the boots he wore, and that "they called them the Mickey Mouse boots ... your feet were just froze." The Veteran denied going to the hospital or sick call for any lower extremity issues during this time. The Veteran and his Spouse also testified as to the pain and numbness that the Veteran experiences in his legs.

The Veteran and his Spouse are competent to report as to that which they experience, such as the Veteran recounting the cold weather during the winters he experienced while in service. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).

Turning to the criteria for entitlement to service connection, medical records indicate that the Veteran has received treatment for knee and hip pain since approximately 2006, including treatment for peripheral neuropathy, mononeuritis of the left leg, and osteoarthritis of the bilateral feet, knees, and hips.  In a VA examination from March 2020, the Veteran's diagnoses of "lower extremity neuropathy, bilateral knee replacements, and PVD [peripheral vascular disease]," were confirmed. As the Veteran has a current disability, he has met the first criteria for entitlement to service connection. 38 C.F.R. § 3.303(a).

Turning to the second criteria, as discussed in the Board's September 2017 and October 2019 Decisions, the Veteran's personnel records are not available to review as a result of being destroyed by a fire. Having said that, the Veteran has continued to argue that he was exposed to freezing weather while on guard duty. The Veteran has submitted photographs of himself in the snow while stationed in Korea. As such, affording the Veteran the benefit of the doubt, his in-service exposure to cold weather has been confirmed and he has met the second criteria for entitlement to service connection. 38 C.F.R. § 3.303(a).

Turning to the third criteria for entitlement to service connection, the Board notes that the Veteran was given a VA examination in December 2016, which the Court in May 2019 determined to be inadequate. As a result, the Board remanded the matter for a VA examination and etiological opinion in October 2019. Specifically, the examiner was to consider the Veteran's lay statements indicating that he experienced difficulties with his lower extremities prior to 2006 and consider whether or not the Veteran's symptoms were consistent with those found of typical cold injuries.

That VA examination occurred in March 2020, whereby the Veteran was seen in-person, and his claims file was reviewed. The Board notes that it is clear from the evidence portion of the examination that a full review of the Veteran's claims file, medical history, and his lay statements was conducted. The examiner noted the Veteran's reports of the cold injury around 1956, however indicates that "there is no objective evidence to support a current or chronic cold weather injury, frostbite, or residuals of a cold weather injury." The examiner noted that the first documented medical complaints of pain and numbness to the lower extremities occurred in 2006. The complaints from the Veteran regarding leg sensitivity prior to 2006 were also considered by the examiner, however the examiner cited that "a review of systems in 1981 during a hospital stay reveals negative (normal) extremities." The examiner then discussed typical cold-weather related disabilities, and while they acknowledged that cold weather could result in increased sensitivity to cold, the Veteran's current diagnoses were each more likely related to factors outside of service. Three diagnoses were identified. First, the examiner noted that the diagnosis of neuropathy and mononeuritis of the left leg was related to "bilateral knee degenerative joint disease with status post bilateral knee replacements and congestive heart failure." Second, for the diagnosis of status-post knee replacements, the examiner likened it to arthritis that was "the result of his increased age [greater than] 65." Finally, for the diagnosis of PVD, the examiner noted that the Veteran's risk factors of "increased age, history of smoking, physical inactivity and high cholesterol," were the most likely etiological cause. Last, the examiner summarized that there was no cold weather injury related to his current diagnoses, and each of those diagnoses was more likely due to non-service-related factors. They also indicated that "there is no longitudinal evidence to support chronicity of care ... [and therefore] the diagnoses were "less likely than not incurred in or caused by," the Veteran's service. The examiner cited to extensive medical literature to back of these findings.

There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In consideration of the above, the Board finds that the Veteran's current disabilities of the bilateral lower extremities are not due to the Veteran's service. While the Veteran has provided competent statements and testimony that he believes his lower leg disabilities are related to cold-weather injuries while in Korea, there is nothing to suggest that the Veteran has the medical training necessary to provide such an etiological opinion. The March 2020 examiner however is competent to provide such an opinion, and that report has been afforded significant probative weight. That opinion reviewed the Veteran's lay statements and provided an extensive review of the Veteran's medical history, coupled with academic citations to back up their etiological conclusion that the Veteran's disability is not related to his active-duty service. The examiner also acknowledged the Veteran's lay statements and testimony that he had bilateral leg issues prior to 2006, however for that 50-year period since service, the Veteran's medical record is silent for such complaints. Finally, the examiner also considered each of the Veteran's current diagnosed disabilities of the lower extremities, and provided different etiological reasons for each of them, none of which are attributed to service.

The Board acknowledges that the Veteran's service personnel records have been destroyed by a fire. Having said that, the fact that the Veteran's personnel records were destroyed does not address why the subsequent 50 years since the Veteran's separation from service are silent for complaints related ot the lower extremities. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection).

Finally, the Board notes that the June 2021 Court JMR has identified three additional factors that must be considered by the Board. To begin, the JMR requested the Board to reconcile the fact that the Veteran testified in June 2016 that he "denied going to the hospital or sick call for any lower extremity issues," with a September 2019 affidavit submitted by the Veteran stating that he "went on sick call numerous times because of cold weather symptoms in my legs." Second, the Board was directed to consider a 1981 hospitalization record whereby the Veteran was admitted "due to a recent injury to his left shoulder," where the hospital noted "possible atelectasis of the left side of the chest." The Board was asked whether or not that it was reasonable to presume that a lower extremity complaint would have been incorporated into the 1981 record of a shoulder injury and possible chest atelectasis. Finally, the Court JMR noted that the Board may consider the 50-year gap between service and evidence and treatment of lower extremity symptoms, but that the Board must consider the August 2014 statement from the Veteran, whereby he reported that he did not seek treatment because he was busy "working, raising a family, and due to financial difficulties."

The Board has considered the three factors raised by the June 2021 Court JMR. To begin, the Board recognizes that the Veteran's June 2016 testimony does in fact contradict his September 2019 affidavit statement. In his testimony, the Veteran denied ever going to hospital or sick call for lower extremity issues, but in his September 2019 statement, he wrote that he was there "numerous times." The Board acknowledges this discrepancy and finds that it actually works against the Veteran's claim, as his contradictory statement lowers the credibility of his earlier testimony. Second, the Court JMR is correct to note that the 1981 hospitalization record indicates that the Veteran complained of a shoulder injury, and that he was revealed to have "possible atelectasis." In direct response to the Court JMR, it is reasonable to presume that, had the Veteran been consistently complaining of a disability to his lower extremities, it may have been incorporated into this hospital record. Having said that, it was not, and the Board has no reason to conclude that the complaints of the possible atelectasis and the left shoulder injury are related to the lower extremities. Finally, the Court JMR indicated that the Board must consider the August 2014 statement whereby the Veteran explained that he did not seek treatment for 50 years due to issues of working, raising a family, and due to financial difficulties. These factors have been considered by the Board. Having said that, they do not outweigh the evidence against the Veteran's claim, including the etiological opinion of the March 2020 examiner, which the Board has afforded significant probative weight. Furthermore, despite the Veteran claiming that those factors have prevented him from seeking treatment for his bilateral lower extremities, those same factors did not prevent him from seeking treatment in other areas, such as "left shoulder pain" and a lung condition in March 1981, nasal and sinus problems in April 2003, and cough and earache problems in March 2008, among further examples. See March 1981 medical treatment record; see further Lake Shore Family Medicine report April 2003; see further Lake Shore Family Medicine report March 2008.

Thus, in consideration of the above, the Board finds that the Veteran's disability of the bilateral lower extremities is not etiologically related to an event, disease, or injury of service origin, to include exposure to cold weather. Furthermore, it was also not shown in service or manifest to a compensable degree within a year of service. Thus, the final criteria for entitlement to service connection has not been met. 38 C.F.R. § 3.303(a).

In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

2. Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disease (COPD).

The Veteran has claimed that his lung disorder is related to his active-duty service. He has provided two possible theories to further his claim: that his lung disorder is due to paint fumes, since he was stationed near two properties being painted, and that his COPD may be related to his exposure to the cold weather in Korea, which originally manifested as pneumonia. See June 2013 Notice of Disagreement. 

As indicated above, the Veteran testified before the undersigned in June 2016. He testified that he does not believe he was given a separation exam, and that he was hospitalized twice in service for pneumonia due to the cold weather. He further stated that on separation his "lungs were still bothering" him, but that he did not make his claim until 1981. The Veteran noted that a hospital first found a scar in his left lung in March 1981, and as a result he was advised to quit smoking. The Veteran testified to quitting smoking completely in 1984. During the hearing, the Veteran's spouse testified that despite that Veteran's claim for entitlement to service connection not being pursued between 1981 and 2013, the Veteran continued to have lung issues that became progressively worse.

The Veteran is competent to report the symptoms he experiences, such as those associated with his lungs, as well as his time spent in service. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).

Turing to the criteria for entitlement to service connection, the Veteran was given an in-person VA examination in March 2020. The examiner confirmed that the Veteran had a diagnosis of COPD originally from 1981, atelectasis with a scar of the lung from 1981, and pulmonary fibrosis, originally diagnosed in 1998. As the Veteran has a current diagnosis of a lung disability, he has met the first criteria for entitlement to service connection. 38 C.F.R. § 3.303(a).

Turning to the second criteria, the Board notes that the in-service event of being exposed to cold weather has already been confirmed in the preceding section. He has testified as to having had pneumonia while in service. The Veteran's claims file further contains a statement from his sister, which further corroborates his testimony as to having been diagnosed with pneumonia while in service. The Veteran has also submitted a statement in September 2019, again arguing that he was "regularly assigned a rotation of nightly guard duty in the frigid winters." He further wrote that he "was exposed to paint fumes, because two of the properties I worked near were being painted ... [and] I was hospitalized with pneumonia at least twice while I was in South Korea." Finally, he wrote that he did not seek treatment as he was busy with his family but has been "coughing and wheezing since 1955 when I was hospitalized with pneumonia."

In consideration of the above, the Board recognizes that the Veteran's service treatment records are not available. Having said that, he has consistently stated and testified as to having pneumonia while in service. His statements regarding being around paint fumes have also been generally consistent, and again, the Board has confirmed the in-service event of being exposed to cold weather. As a result, the Veteran has met the second criteria for entitlement to service connection. 38 C.F.R. § 3.303(a).

Turning to the third criteria, the Veteran was given a VA examination in December 2016, which the Court in May 2019 determined to be inadequate. As a result, the Board remanded the matter for a VA examination and etiological opinion in October 2019. Specifically, the examiner was to consider the Veteran's lay statements, the positive opinion from the private examiner, all possible diagnosed lung disabilities, and the fact that the Veteran quit smoking.

That VA examination occurred in March 2020, whereby the Veteran was seen in person. It is clear from the VA examiner's discussion that the Veteran's lay statements were considered, and that his full medical history of lung disabilities was reviewed. The examiner also cited to an October 2017 positive opinion from Dr. K.T. yet refuted those findings. The examiner wrote that the current diagnoses are less likely than not due to the Veteran's active-duty service. The examiner first noted that in 1981 "a chest x-ray revealed early COPD and left lung scarring versus atelectasis." The examiner noted that chest x-ray records from 1998, 2009 and 2003 do not indicate that a scar had occurred, and that it first occurred in 2004. The examiner wrote that as a result of the medical evidence, the confirmed diagnoses are actually "COPD (bronchitis), pulmonary fibrosis, and atelectasis." For each diagnoses the examiner then denied any etiological link to service, to include the Veteran's pneumonia as well as his claimed exposure to paint fumes. First, the examiner noted that COPD was first revealed "in 1981 prior to smoking cessation ... at this time the Veteran was smoking a pack of cigarettes a day and advised to quit ... he was a smoker since age 18 ... therefore, in 1981 he had a 25 year history of smoking cigarettes." The examiner also noted that "smoking cessation does not cure established COPD ... his COPD is more likely the result of his history of smoking and unrelated to pneumonia or paint fumes." Second, as it relates to pulmonary fibrosis, the examiner stated that "there is a 42-year gap between his reported pneumonia, paint exposure, and his official diagnosis of fibrotic lung changes in 1998." The examiner also discussed the Veteran's "risk factors for pulmonary fibrosis: history of smoking, increased age, and male gender," and then concluded that these factors "have contributed to his pulmonary fibrosis ... [and that it is] unrelated to his pneumonia or paint exposure in service." Finally, the examiner noted that the diagnosis of atelectasis, which was first revealed by x-ray in 1981, also "did not reveal a diagnosis of pneumonia." Since COPD was diagnosed in 1981, the examiner wrote that it was more likely due to the "25 year [history] of smoking coupled with COPD diagnosis." Finally, the examiner concluded that while the "Veteran has since quit smoking," his initial COPD was diagnosed in 1981 and that he had smoked for 25 years, and that therefore each of these diagnoses are "less likely than not caused by paint fumes and pneumonia in service." Following these opinions, the examiner cites to extensive academic articles and medical research.

There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

As mentioned above, the Veteran's claims file also includes a statement from the Veteran's private physician, Dr. K.T. from October 2017. In that statement, they wrote that the Veteran was currently being treated for COPD, "and many other chronic medical issues." The examiner then states that the Veteran "was first notified of a lung issue [in] November 1958 while serving in the United States Armed Forces," and that the Veteran's COPD is "more likely than not related to the lung issues he had dating back to November 1958," because it takes "many years to develop COPD."

While the October 2017 private opinion did provide a positive etiological opinion, there is no indication that the examiner reviewed the Veteran's claims file. In fact, it is unclear as to what "lung issue" the Veteran was told about in November 1958, especially considering that the Veteran testified that he was not given a separation exam in November 1958, and his service treatment records are unavailable. The opinion is conclusory, without providing discussion as to the Veteran's development of lung issues over the previous decades. From the opinion provided, it appears that the examiner took a personal history as provided exclusively by the Veteran. Therefore, while there is no evidence to doubt the competence or credibility of the October 2017 private examiner, the Board affords the report minimal probative weight as to the etiology of the Veteran's lung disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In consideration of the above, the Board finds that the Veteran's current lung disability is not related to his active-duty service. While the Veteran has provided competent testimony as to his experiences in service, such as being exposed to cold weather, there is no indication that lung problems began until approximately 1981. The March 2020 examiner reviewed the Veteran's medical history and confirmed three separate diagnoses over the past 40 years, however attributed each of them to the Veteran's 25-year history of smoking-related lung issues. By the Veteran's own testimony, he had not stopped smoking until 1984, after he was diagnosed with lung problems, and over two decades since his separation from service. And while the Veteran also testified as to being exposed to paint fumes while in service, the March 2020 examiner also considered that exposure, and still provided a negative etiological opinion. The only positive opinion in the Veteran's claims file has been attributed minimal probative weight, as the opinion provided is conclusory, and appears to be exclusively taken from the history as provided by the Veteran. There is also no continuity of symptomatology, as the Veteran's complaints of lung issues first occurred around 1981, 23 years after his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection).

Finally, the June 2021 Court JMR noted that the Board must consider an additional piece of evidence in its analysis. The JMR identified a letter from November 1958 from the State of New York Executive Department, Division of Veterans' Affairs, suggesting to the Veteran that he file a claim "regarding the fact that you were hospitalized for a lung condition while in service." The Board has reviewed the November 1958 letter, and finds that the letter was not itself making a finding of fact of an in-service lung hospitalization, but instead was simply inviting the Veteran to file a claim for benefits. It does not include a formal diagnosis, nor an etiological opinion. And despite the invitation letter, the Veteran did not file a claim for a lung disability until 1981, approximately twenty-three years later. Regardless, that November 1958 letter does not outweigh the earlier evidence discussed that is against the Veteran's claim, including the opinion from the March 2020 examiner which has been afforded significant probative weight. 

Thus, the Board concludes that the Veteran's lung disorder, to include COPD, is not etiologically related to an event, disease, or injury of service origin, nor was it shown in service or manifest to a compensable degree within a year of service.

In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claim.  As such, the benefit of the doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Mulrain, 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.