Citation Nr: 0727067 Decision Date: 08/29/07 Archive Date: 09/11/07 DOCKET NO. 05-16 947 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to service connection for claimed emphysema. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from June 1960 to January 1964. This case was previously before the Board of Veterans' Appeals (Board) in November 2006 when it was remanded for further development. FINDING OF FACT 1. 2. Emphysema was first manifested many years after service, and there is no competent evidence of record that it is in any way related to service. CONCLUSION OF LAW Emphysema is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Assist Prior to consideration of the merits of the veteran's appeal, the Board must determine whether VA has met its statutory duty to assist the veteran in the development of his claim of service connection for emphysema. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In letters, dated in July 2004 and December 2006, the RO and the Appeals Management Center (AMC) in Washington, D.C. informed the veteran that in order to establish service connection for the claimed disability, there had to be competent evidence of current disability (generally, a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The RO and AMC notified the veteran and his representative of the following: (1) the information and evidence that was of record and was not of record that was necessary to substantiate the veteran's claims; (2) the information and evidence that VA would seek to provide, such as records held by Federal agencies; (3) the information and evidence that the veteran needed to provide, such as employment records and records of his treatment by private health care providers; and (4) the need to furnish VA any other information or evidence in the veteran's possession that pertained to his claims. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). However, the RO and AMC stated that it was ultimately the veteran's responsibility to make sure that it received all of the requested records which weren't in possession of the Federal government. The RO and AMC told the veteran where to send the information/evidence and set forth time frames for doing so, as well as the potential consequences for failing to do so. It also notified him of what to do if he had questions or needed assistance and provided a telephone number, computer site, and address where he could get additional information. Not only did the foregoing notices comply with the requirements of 38 U.S.C.A. § 5103, 5103A and 38 C.F.R. § 3.159, the RO granted the veteran time to develop the record. The veteran and his representative submitted argument in support of the veteran's appeal, and the RO received evidence, primarily reflecting the veteran's treatment by VA from May 1997 through July 2006. The RO also received records from the Social Security Administration, showing that the veteran was awarded disability benefits due, in part, to the presence of chronic obstructive pulmonary disease (emphysema). The Social Security records showed that the veteran became too disabled to work in December 1996. Finally, the Board notes that the veteran had hearings in association with his appeal. In July 2005, the hearing was held at the RO before a decision review officer, and in November 2006, the veteran had a video conference with the Veterans Law Judge whose name appears at the end of this decision. The transcripts of those hearings have been associated with the claims folder. In evaluating this appeal, the Board is aware of the need to notify the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notification was accomplished in December 2006 and May 2007. After reviewing the record, the Board finds that VA has met its duty to assist the veteran in the development of evidence necessary to support his claim of service connection for emphysema. It appears that all relevant evidence identified by the veteran has been obtained and associated with the claims folder. In this regard, he has not identified any further outstanding evidence (that has not been sought by VA), which could be used to support his claim. Given the efforts by VA to develop the record, there is no reasonable possibility that further development would lead to any additional relevant evidence with respect to the issue on appeal. Therefore, further action is unnecessary in order to meet VA's statutory duty to assist the veteran in the development of his claim for service connection for emphysema. See, e.g., Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). II. Facts and Analysis Service connection connotes many factors, but basically, it means that the facts, shown by the evidence, established that a particular disease or injury resulting in disability was incurred coincident with active military, naval, or air service, or, if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Service connection may, however, be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). At his hearings, the veteran testified that, during training exercises in service, he was exposed to cold, wet weather that resulted in a decrease in his body temperature. He reports having experienced difficulty breathing due to emphysema since that time. A careful review of the service medical records shows that the veteran was treated on several occasions in service for coughs and colds, diagnosed as pharyngitis. However, there were no findings of emphysema or other associated lung condition. The veteran's emphysema was not manifested until the late 1990's, when VA radiographic studies and pulmonary function testing were performed. Thereafter, the veteran was found to have various respiratory problems, primarily diagnosed as chronic obstructive pulmonary disease, emphysema and bronchitis. During pulmonary function testing by VA in May 2005, it was noted by way of history that the veteran had smoked two packs a day for 50 years. In fact, in January 2006, the veteran underwent a VA examination. Following that consultation, the examining physician concluded that the veteran had severe chronic obstructive pulmonary disease which was due solely to smoking. During his videoconference hearing with the undersigned Veterans Law Judge, the veteran testified that he did not start smoking until many years after service. In any event, the law precludes granting service connection for disease or injury attributable to the use of tobacco products during service. 38 U.S.C.A. § 1103 (West 2002);38 C.F.R. § 3.300 (2006). In fact, the only reports attributing the emphysema to service come from the veteran himself. As a layman, however, he is only qualified to report on matters which are capable of lay observation. He is not qualified to render opinions which require medical expertise, such as the diagnosis or cause of a particular disability. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The veteran in this regard has submitted no medical evidence to support his assertions that the currently demonstrated emphysema is due to any event or incident of his period of active service. Absent such nexus evidence, the claim of service connection must be denied. ORDER Service connection for emphysema is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs