Citation Nr: 0319831 Decision Date: 08/11/03 Archive Date: 08/25/03 DOCKET NO. 00-11 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a lung disorder, claimed due to asbestos exposure during service. 2. Entitlement to service connection for prostate cancer, claimed due to asbestos exposure during service. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD L. Cramp, Associate Counsel INTRODUCTION This case comes before the Board of Veterans Appeals (BVA or Board) on appeal from a March 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (the RO). Procedural history The veteran served on active duty in the United States Navy from August 1942 to December 1945. In October 1998, the RO received the veteran's claim of entitlement to service connection for a lung disorder and for prostate cancer, both claimed due to asbestos exposure during service. In a March 2000 rating decision, the RO denied the claims. The veteran disagreed with the March 2000 rating decision and initiated this appeal. The appeal was perfected with the timely submission of the veteran's substantive appeal (VA Form 9) in May 2000. The veteran testified at a personal hearing which was chaired by the undersigned Veterans Law Judge at the RO in August 2001. The transcript of the hearing is associated with the veteran's claims folder. In November 2001, the Board remanded the issues listed above for further evidentiary development. After the requested development was accomplished, in August 2002 the RO issued a supplemental statement of the case (SSOC) which continued its previous denials of the veteran's claims. In March 2003, the Board undertook additional development on these issues, pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) [codified at 38 C.F.R. § 19.9(a)(2)]. The Board notes that the recent holding in the case of Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) invalidated certain provisions of that regulation, particularly provisions allowing the Board to consider additional evidence without having to remand the case to the RO for initial consideration and without having to obtain the veteran's waiver. In this case, however, no additional evidence was in fact obtained pursuant to the Board's development effort. Accordingly, the Board can proceed with adjudication of these issues without the necessity of a remand for initial RO consideration or soliciting a waiver from the veteran. Other issues The Board observes that in the April 2000 notice of disagreement, the veteran also disagreed with the March 2000 denial of his claim for entitlement to service connection for a disorder of the pancreas. That issue was included in the April 2000 statement of the case (SOC). However, when he submitted his substantive appeal in May 2000, the veteran specifically listed only those issues listed on the first page of this decision. The issue of entitlement to service connection for a disorder of the pancreas was not included. Because no substantive appeal has been received as to that issue, it is not in appellate status and it will not be addressed in this decision. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302 (2002). The Board also notes that based on comments during his August 2001 hearing, the veteran appears to contend that he has rectal cancer that is attributable to service. To the extent that he wishes to pursue such a claim, he should contact the RO. FINDINGS OF FACT 1. Competent medical evidence does not reveal that the veteran's claimed lung disorder is causally related to his military service or any incident thereof, including exposure to asbestos. 2. Competent medical evidence does not reveal that the veteran's claimed prostate cancer is causally related to his military service or any incident thereof, including exposure to asbestos. CONCLUSIONS OF LAW 1. A lung disorder was not incurred as a result of the veteran's naval service. 38 U.S.C.A. § 1101, 1110, 112, 1113 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2002). 2. Prostate cancer was not incurred as a result of the veteran's naval service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking entitlement to service connection for a lung disorder and for prostate cancer, both claimed as being due to asbestos exposure during service. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. The VCAA The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) [codified as amended at 38 U.S.C.A. § 5100 et seq. (West 2002)]. This law eliminated the former statutory requirement that claims be well grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. Regulations implementing the VCAA have been enacted. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) [to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)]. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment but not yet final as of that date. Except for provisions pertaining to claims to reopen based on the submission of new and material evidence, which are not applicable in the instant case, the implementing regulations are also effective November 9, 2000. In this case, the veteran's claim is not final and remains pending. The provisions of the VCAA and the implementing regulations are, accordingly, applicable. See Holliday v. Principi, 14 Vet. App. 282-83 (2001) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of these issues has proceeded in accordance with the provisions of the law and regulations. As stated above, the VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2002). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. The veteran was notified by correspondence from the RO following the Board's November 2001 remand, by the remand itself, by the March 2000 rating decision, by the April 2000 SOC, and by the July 2001 and August 2002 SSOCs of the pertinent law and regulations and the need to submit additional evidence on his claims. More significantly, a letter was sent to the veteran in January 2002, with a copy to his representative, which specifically informed the veteran as to what evidence VA had already obtained, and what evidence he was required to provide. That letter, as well as attachments to the July 2001 and August 2002 SSOCs, explained that VA would assist in obtaining any identified records, but that he was responsible for providing sufficient information to VA to identify the custodian of any records. The Board notes that, even though the letter requested a response within 60 days, it also expressly notified the veteran that he had one year to submit the requested information and/or evidence, in compliance with 38 U.S.C.A. § 5103(b). The one year period has since elapsed. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. In particular, the veteran identified records from Dr. J.I., Dr. R.N.B., and Dr. C.W.B. The veteran submitted the records from Dr. R.N.B., and the RO requested and obtained records from Dr. J.I. and Dr. C.W.B. The RO requested and obtained the veteran's service medical records and VA outpatient treatment records. The RO also requested and obtained a statement from the Navy Medical Liaison on the probability of asbestos exposure for the veteran. There is no indication that there exists any evidence which has a bearing on this case which has not been obtained. In response to the Board's November 2001 remand, the veteran was scheduled for a VA examination. He did not report for that examination; there is no indication that good cause was shown for the failure to report. The RO then sent the medical records to a VA specialist in August 2002 and obtained an opinion as to whether the veteran's claimed conditions could be related to asbestos exposure. In a December 2002 informal hearing presentation, the veteran's representative requested that because the examination requested by the Board was not completed and the August 2002 opinion is only a paragraph in length, a specialist's opinion be obtained. As noted above, the veteran himself did not report for the scheduled examination. To the Board's knowledge, he has not explained why he did not report for the examination, nor has he requested that the examination be rescheduled. Under such circumstances, the claims are to be decided based on the evidence of record. See 38 C.F.R. § 3.655 (2002). It is now well established that VA's duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A claimant must be prepared to meet his or her obligations by cooperating with VA's efforts to provide an adequate medical examination and submitting to the Secretary all medical evidence supporting his claim. See Olson v. Principi, 3 Vet. App. 480 (1992). While the record indicates that the veteran is of advancing age and is currently facing numerous significant health problems, no reason has been given for the veteran's failure to appear to be examined. The veteran's representative stated that there is no indication that the notice to appear for an examination was sent to the veteran. The Board concedes that such indication is not contained in the claims file. However, in situations such as this, the presumption of regularity comes into play. "The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926). While the Ashley case dealt with regularity and procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied the presumption of regularity to procedures at the RO level, such as in the instant case. The Court specifically held that a statement such as the one offered by the veteran's representative, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. As will be discussed in more detail below, the record now contains adequate evidence to reach an informed decision on both claims before the Board. In the opinion of the Board, an additional medical opinion is not necessary. See Bielby v. Brown, 7 Vet. App. 260, 269 (1994) [the necessity of obtaining an expert medical opinion is left to the discretion of the Board]; see also See Counts v. Brown, 6 Vet. App. 473, 478-9 (1994) and Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) [VA's . . . duty to assist is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim]. The veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. The veteran was afforded a personal hearing before the undersigned Member of the Board in August 2001, the transcript of which is of record. The veteran submitted evidence directly to the RO in August 1999, November 2001 and January 2002. The veteran's representative has submitted written argument in his behalf. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of these claims has been consistent with the provisions of the new law. Under these circumstances, the Board can identify no further development that would avail the veteran or aid the Board's inquiry. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Accordingly, the Board will proceed to a decision on the merits. Pertinent law and regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002). Where a veteran served 90 days or more during a period of war and cancer becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. 3.303(d) (2002); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Asbestos exposure In McGinty v. Brown, the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) [hereinafter "DVB Circular"], that provides some guidelines for considering compensation claims based on exposure to asbestos. The Board notes that the DVB circular has been subsumed verbatim as § 7.21 of VA Manual M- 21. VA Manual M-21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. M21-1, Part VI, para 7.21(a). The guidelines provide that the latency period for asbestos- related diseases varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos- related disease can develop from brief exposure to asbestos or as a bystander. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to asbestos since it was used extensively in military ship construction. Many of these people have only recently come to medical attention because the latent period varies from 10 to 45 or more years between first exposure and development of the disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). In a recent decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that M21-1, Part VI, § 7.68(b)(2) does not create a presumption of exposure to asbestos for any class of veterans. Rather, M21- 1 suggests that asbestos exposure is a fact to be determined from the evidence. See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The clinical diagnosis of asbestos requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease. When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and to assure that development is accomplished to ascertain whether or not there is pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. 1. Service connection for a respiratory disorder The veteran seeks entitlement to a respiratory disability, which he claims is due to exposure to asbestos during service. Analysis As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of such disability; and (3) medical nexus. See Hickson, supra. The Board notes that the veteran has a currently diagnosed respiratory disability. Therefore, Hickson element (1) is not in dispute in this case. A February 1982 VA examination showed a diagnosis of chronic obstructive pulmonary disease (COPD) with evidence of tuberculosis and emphysema shown on x-ray. Dr. C.W.B. in August 2001 and the VA reviewing examiner in August 2002 diagnosed COPD. Dr. J.I. diagnosed probable lung cancer in January 2002 in addition to diagnoses of severe emphysema and respiratory failure in November 2001. With respect to Hickson element (2), in-service incurrence of disease or injury, the veteran's service medical records do not indicate the onset of a respiratory disorder during active service. The service medical records are unremarkable with respect to respiratory complaints. At separation, the veteran was noted to have a negative chest x-ray. He was found to be physically qualified for discharge in December 1945. In addition, there is no suggestion of lung cancer for many decades after service. The veteran himself does not contend that his respiratory problems started until around 1970, as described in his August 2001 hearing. In an October 2002 statement, the veteran reported that his shortness of breath started in 1979. Thus, there is no evidence of in-service disease, including during the one year presumptive period after service. With respect to possible in-service injury, however, there is evidence of record to support the veteran's contention that he was exposed to asbestos during service. Service records show that the veteran served in the U.S. Navy as a sheet metal worker aboard several ships during the Second World War. The veteran testified in August 2001 that he was exposed regularly to asbestos in his duties aboard ship. A March 2000 determination by the Navy Medical Liaison showed that, although the veteran's exposure to asbestos was likely minimal, a positive statement ruling out such exposure could not be made. Therefore, affording the veteran the benefit of the doubt, exposure to asbestos during service is conceded and Hickson element (2) is satisfied. In Dyment, the Court found that the guidelines established in M21-1 do not create a new presumption or a new basis of entitlement to benefits, but rather set forth a process for VA to follow where asbestos exposure creates a possible nexus between a current disability and service. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. See also VA O.G.C. Prec. Op. No. 04-00. As noted by the Board above, the Federal Circuit has adopted the position of the Court. With respect to Hickson element (3), medical nexus, the Board notes that COPD, the diagnosis that appears most frequently in the record, is not among the diseases listed as associated with asbestos exposure. M21-1, Part VI, para 7.21(a). While the veteran also has been diagnosed with probable lung cancer, the primary medical evidence in support of a relationship between asbestos exposure and a current lung disorder comes from the August 2001 report of Dr. C.W.B. Dr. C.W.B. did not diagnose lung cancer, but rather diagnosed COPD. Dr. C.W.B's report notes calcification in the pericardium consistent with atelectatic changes in the upper lobe. He stated that this calcification suggested asbestosis exposure. However, it is noted that Dr. C.W.B. did not directly attribute COPD to the suggestion of asbestos exposure in August 2001. In fact, he did not opine at all as to the relationship between the calcification noted and any current disability, but stated that the etiology of the abnormality noted in the right upper lobe was uncertain. The abnormality or calcification noted by Dr. C.W.B. was also described by Dr. J.I. in November 2001. Dr. J.I. described the calcification as a scar from old granulomatous infection. A September 2001 x-ray report shows the opinion of the reviewing physician that the density in the right upper lung was suspected to be a recurrence of a chronic process such as a neoplasm, tuberculosis or fungus. This association of the right lung abnormality with an old infection rather than asbestos exposure is consistent with the veteran's medical history. An April 1980 treatment records shows diagnosis of pneumonia, noted as a residual of a gastrectomy. A February 1982 VA examination report shows the first diagnosis of COPD, with evidence of tuberculosis and emphysema shown on x-ray. A March 1995 x-ray shows some old fibrotic lesions with some microcavities in the right upper lung field. A March 1995 report of Dr. R.E.P. shows attribution of the fibrotic lesions to old granulomatous disease. Dr. R.E.P. stated that the veteran had self-referred himself for evaluation of asbestos exposure related lung disease. However, instead of relating the veteran's lung disorder to asbestos exposure, he in fact attributed it to cigarette abuse. Dr. R.E.P. further stated that despite the veteran's asbestos exposure, he did not think that radiographically there was asbestos-induced lung disease. He stated that testing indicated more obstructive impairment than restrictive. Dr. R.E.P.'s belief that smoking was the cause of the veteran's current COPD is further supported by a September 1999 treatment record, which lists smoking among the veteran's risk factors. The February 2001 report of Dr. J.I. and the August 2001 report of Dr. C.W.B. show the veteran's account of having smoked a pack of cigarettes per day for 50 years. As noted by the Board in connection with its discussion of the VCAA, in August 2002 the RO sent the veteran's records to a VA specialist and requested an opinion as to whether the veteran's claimed conditions could be related to asbestos exposure. The examiner replied that there is no evidence of asbestos injury in an April 2002 chest x-ray. However, there is no April 2002 chest x-ray of record, despite efforts by the Board to obtain such evidence after the claims folder was returned from remand. As discussed above, the evidence indicates that the veteran did not in fact appear for a scheduled April 2002 examination. Although it is likely that the reviewing physician was referring to another x-ray of record, this is not clear. The Board therefore affords the August 2002 opinion little weight of probative value as it relates to the veteran's lung disorder. After having considered all of the medical evidence of record, the Board finds that the evidence in favor of a nexus between any current respiratory disorder and asbestos exposure in service does not reach equipoise with the evidence against such nexus. The evidence against an association between asbestos exposure during service, described as "minimal" by the Navy, and the lung disorders which initially appeared decades later preponderates. The evidence against the claim includes the reports of Dr. R.E.P. and Dr. J.I. that the abnormality noted by Dr. C.W.B. was in fact reflective of old granulomatous disease, and the opinion of Dr. R.E.P. that the veteran's COPD was in fact attributable to cigarette smoking. These opinions, are more persuasive than that of Dr. C.W.B. in that they are consistent with as the overall body of evidence, which includes a history of old granulomatous disease as well as a 50 pack year history of cigarette smoking. Dr. C.W.B.'s opinion, which finds a suggestion of asbestos exposure, appears to be the exception to the rest of the medical evidence. Moreover, even his opinion does not directly link asbestos exposure to any current respiratory disorder or even to the lung abnormality noted, which he found to be of uncertain etiology. The Court has held that medical opinions which are speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Outpatient treatment records in 1997, 1998 and 1999 also refer to a history of asbestos exposure. As stated, asbestos exposure is conceded. There is no indication from any of these records that any of the veteran's symptoms are medically attributed to asbestos exposure. The Board has also given consideration to the veteran's own contentions with respect a relationship between asbestos exposure and his current condition. However, it is now well established that, although he is competent to report on his symptoms, as a layperson without medical training the veteran is not competent to relate those symptoms to a particular diagnosis or specific etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the third element required for service connection, medical nexus evidence showing a link between asbestos exposure in service and the current disability, has not been established. Hickson element (3) has not been met, and the veteran's claim fails on that basis. The Board therefore finds that a preponderance of the evidence is against a showing that the veteran's respiratory disorder resulted directly from a disease or injury incurred in active service, or as a result of asbestos exposure in service. The veteran's claim of entitlement to service connection for a respiratory disorder is therefore denied. 2. Service connection for prostate cancer. The veteran also seeks entitlement to service connection for prostate cancer, which he claims was caused by exposure to asbestos during service. Factual background The veteran's service medical records show a notation of a variocele in July 1943, but are otherwise unremarkable. At separation, the veteran was noted to have a normal genitourinary system. He was found to be physically qualified for discharge in December 1945. In August 1991, the veteran was hospitalized for a radical prostatectomy due to a prostate nodule. In August 2002, the RO sent the veteran's records to a VA specialist and requested an opinion as to whether the veteran's claimed condition could be related to asbestos exposure. The examiner replied that asbestos does not cause prostatic malignancy. Analysis As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of such disability; and (3) medical nexus. See Hickson, supra. The veteran was diagnosed as having prostate cancer in August 1991. Therefore, Hickson element (1) is not in dispute in this case. Further, as discussed in more detail above, there is evidence of record to support the veteran's contention that he was exposed to asbestos during service. Therefore, exposure to asbestos during service is conceded and Hickson element (2) is satisfied to that extent. The Board additionally observes, however, that prostate cancer was not evident during the veteran's World War II service or within the one year presumptive period thereafter, and the veteran does not so contend. The remaining question which must be answered by the Board, therefore, is whether any medical nexus exists between any incident of service, including asbestos exposure during service, and the veteran's current prostate cancer. In this case, prostate cancer is not among the diseases listed as associated with asbestos exposure. M21-1, Part VI, para 7.21(a). Further, there is nothing in the evidentiary record to support or suggest that prostate cancer was incurred in service, or that there is a relationship between the veteran's prostate cancer and in-service asbestos exposure. Indeed, the August 2002 reviewing VA physician specifically pined to the contrary. The evidence in support of the veteran's claim with respect to medical nexus consists only of his own contentions that such a nexus exists. However, as discussed above in connection with the first issue on appeal, as a layperson without medical training the veteran is not competent to render medical opinion on matters such as etiology. See Espiritu, supra. Accordingly, one of the three elements required for service connection, medical nexus evidence showing a link between asbestos exposure in service and the current prostate cancer, has not been established. The Board therefore finds that a preponderance of the evidence is against a showing that the veteran's prostate cancer resulted directly from a disease or injury incurred in active service, or as a result of asbestos exposure in service. The veteran's claim of entitlement to service connection for prostate cancer is therefore denied. The veteran has asserted that he is entitled to the benefit of the doubt in this case. Because a preponderance of evidence is against his claims, the benefit of the doubt rule is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. ORDER Service connection for a respiratory disorder, claimed due to asbestos exposure, is denied. Service connection for prostate cancer, claimed due to asbestos exposure, is denied. Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.