Citation Nr: 0907977 Decision Date: 03/04/09 Archive Date: 03/12/09 DOCKET NO. 05-07 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Crohe, Associate Counsel INTRODUCTION The appellant is a Veteran who had active service from January 1945 to July 1946. The case is before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Houston Regional Office (RO) of the Department of Veterans Affairs (VA) that, among other things, denied service connection for asbestosis and granted service connection for bilateral hearing loss for which a noncompensable rating was assigned. In a decision dated in January 2007, the Board denied entitlement to service connection for asbestosis and a compensable rating for hearing loss. The Veteran appealed the part of the decision that addressed service connection for asbestosis to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in March 2008, the Court granted a Joint Motion for Remand filed with the Court. The Court returned the issue to the Board for compliance with the instructions in the joint motion. FINDINGS OF FACT It has not been shown that the Veteran's asbestosis is related to active service. CONCLUSION OF LAW Service connection for asbestosis is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). As held in Sanders, all notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non- prejudicial." Vazquez- Flores v. Peake, 22 Vet. App. at 46. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. Here, in April 2006 and December 2008 correspondence, the Veteran indicted that he had no further evidence to submit to VA. Letters dated in June and July 2003 (prior to the August 2003 initial rating decision), and November 2004 discussed the evidence necessary to support the Veteran's claim. The July 2003 letter asked the Veteran to submit medical evidence that the diagnosis of asbestosis was caused by asbestos and to provide information relating to when, where, and how he was exposed to asbestos. He was asked to provide the names of other service persons that were with him at the time of exposure, and to list other things that may cause cancer (cigarettes, chemicals, etc) that he was exposed to while in service and after service. In the November 2004 letter, the Veteran was asked to provide the dates of medical treatment during service, along with the name and exact location of the dispensary, hospital, or other facility where he received treatment for the claimed condition. He was also asked to provide statements from persons who knew him while he was in service and knew of any disability he had while he was on active duty; records and statements from service medical personnel; employment physical examinations; medical evidence from hospitals, clinics, and private physicians of treatment since military service; pharmacy prescription records; and insurance examination reports. The evidence of record was listed and he was told how VA would assist him in obtaining additional evidence. He was told of the specific types of evidence that might support his claim. In March 2006, the Veteran was advised of the manner in which VA determined disability ratings and effective dates. With respect to the timing of VCAA notice, the Board finds that any defect was harmless error. Although the notices were provided to the Veteran both before and after the initial adjudication, the Veteran has not been prejudiced thereby. The content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Therefore, although the Veteran received inadequate preadjudicatory notice, and that error is presumed prejudicial, the record reflects that he was provided with a meaningful opportunity during the pendency of his appeal such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. As the Federal Circuit Court has stated, it is not required "that VCAA notification must always be contained in a single communication from the VA." Mayfield, supra, 444 F.3d at 1333. With respect to VA's duty to assist, the Board notes that identified treatment records have been obtained and associated with the record. A VA examination was provided in May 2006. The appellant has not identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. II. Factual Background The Veteran's service treatment records (STR's) are negative for any complaints, treatment, or diagnosis of asbestos exposure, asbestosis, or pulmonary or respiratory abnormalities. The report of a July 1946 separation examination indicated that the Veteran's respiratory system, bronchi, lungs, pleura, etc. were normal. His cardio- vascular system was normal. Photoflourographic chest x-rays were negative. He was found to be qualified for discharge. April 1990 correspondence from H. Z. B., M.D., a private physician, indicated that the Veteran was evaluated and underwent pulmonary function tests, chest radiographs, and a CT scan of the chest. The physician indicated that it was his impression that the Veteran had asbestos-related pleural disease. He further stated that based on the present information, he could not state within a reasonable medical probability that interstitial fibrosis was present. In a July 1990 letter to the Veteran's attorney (who represented the Veteran as part of a class action law suit for an asbestosis claim against his former employer), Dr. B. indicated that he was responding to the attorney's request for a "final narrative" regarding the findings of on the Veteran. Dr. B. indicated that he examined the Veteran in March 1990. At that time, the Veteran had complaints of pain in his right lower posterior thorax, as well as pain in his right hip and lower extremity. The pain in his chest was nonpleuritic. The Veteran denied any history of chest trauma, fever, hemoptysis, or weight loss. He had been short of breath for about one year, but could walk several blocks without difficulty. He complained of occasional dysphagia with solid food. His past history was essentially negative. He denied a previous history of lung disease. He smoked cigars for about a year and a half in the past, but never smoked cigarettes. He stated that he had worked as a millwright and pipe fitter all of his life at Owens Illinois and DuPont. His family history was noncontributory. A physical examination was unremarkable except for some fine rales in the basis. In reviewing the results of posterior- anterior and lateral chest radiographs, CT chest scan, and pulmonary function studies, Dr. B. concluded that the Veteran had radiographic evidence of asbestos-related pleural disease. He commented that although the plain films suggested that a mild degree of interstitial fibrosis was present, this could not be confirmed with any degree of certainty from the CT scan or the pulmonary function studies at that time. On July 2003 VA examination, the Veteran stated that he occasionally smoked cigarettes, but quit in 1973. A chest x- ray revealed hazy density left lateral base with somewhat nodular quality. No old films were available for comparison. A follow-up was recommended with attention to that area. The interpreter noted rule out acute infiltrate clinically. July 2003 to January 2005 VA outpatient treatment records included treatment for coronary artery disease and hypertension, upper respiratory infection, hypercholesterolemia, gastroesophageal reflux disease, and degenerative joint disease in the fingers. In July 2003 statement, the Veteran indicated that the WWII vessels he served on were highly contaminated with asbestos. He claimed that asbestos was used extensively throughout the ship in piping, insulation for heat and acoustic noise. While he was stationed on board Naval vessels, he was subjected to inhalation, ingestion and physical application of toxic asbestos fibers without regard to his safety. He contended that there was a nexus between his service and his asbestosis. In his February 2005 substantive appeal, the Veteran reported that his military occupational specialty (MOS) was that of Seaman. He indicated that while performing his job duties he painted more often than working directly with asbestos, however, he was still exposed to asbestos aboard the ship. He stated that, in those days, asbestos was used everywhere aboard the ship. He reported that he worked with asbestos in the workplace, postservice. He claimed that the military trained him for an occupation in maintenance and repairs, which he continued after his military. He claimed that his initial asbestos exposure was in the Navy aboard a ship. On May 2006 VA examination, it was noted that the C-file was available and reviewed. The Veteran indicated that his job in the Navy was on the first division deck. He pulled watches, worked in the gallery, and also worked in incineration. Postservice, he worked for 13 years in a paper mill and 20 years at DuPont as an outdoor machinist. He retired in 1983. He reported a history of being in relatively good health; he did not have any serious medical problems other than arthritis. Approximately five years ago he had heart surgery, a triple bypass, but since that time he had not been on any cardiac medications and was doing well. He felt that he was exposed to asbestos when he incarcerated the trash and garbage of the ship he served on while in the Navy. He also felt that he was exposed to asbestos while working as an insulator as one of his assigned duties on the ship. He reported that after the military he was employed by DuPont and worked on the steam lines. He believed that the majority of any exposure to asbestos occurred when he was working on the DuPont job. He indicated that he had been referred to a lawyer and was involved in a class action lawsuit for asbestos related claims. He noted that his attorney had sent him to a doctor, where he was diagnosed with asbestosis. He had not heard from that attorney for approximately two years. He indicated that he was not sick when he was referred to the attorney; he heard about the asbestos related claim through the workplace and sought to be evaluated in 1982. The Veteran reported that he had an occasional productive cough and sputum, but denied hemoptysis. He reported a decreased appetite and a 10 pound weight loss in the last year, but did not have any dyspnea, shortness of breath, or diagnosis of chronic obstructive pulmonary disease. He also denied being asthmatic or treatment for any lung ailments. He stated that he was not on any bronchodilators, was not using any inhalers, and was not on any oxygen. He did not have any periods of incapacitation regarding asbestosis or lung disease. He denied any underlying restrictive airway disease. After a physical examination and a chest X-ray, the examiner's assessment was that the Veteran had asbestosis. The examiner indicated that the Veteran's chest X-ray met the diagnosis of asbestosis, but that he did not suffer from any of the health problems related to the disorder. The examiner stated that he or she was unable to determine if working in the incinerator room would increase the likelihood of a diagnosis of asbestosis without resulting in speculation, especially considering that the Veteran was involved in a class action law suit with a life long industrial employer that he claimed gave him asbestosis. In an August 2006 statement, the Veteran stated that his job duties as a Seaman included painting, scraping, buffing, rigging/crane operator, loading/unloading all supplies, deck hand, and incinerator watch that included burning debris from the engine room that contained asbestos material. He stated that the berthing spaces contained padded asbestos bats that were on the steel walls and were wrapped around all piping. II. Criteria Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the Veterans Benefits Administration (VBA) Circular have been included in a VA Adjudication Procedure Manual, M21-1 (hereinafter "M21-1"), Part VI, para. 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). M21-1, 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 applicable section of M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy Veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1, Part VI, para. 7.21(b). In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-2000. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1, Part VI, para. 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). IV. Analysis In the Joint Motion of March 2008, the parties did not dispute the factual background the Board cited in the January 2007 decision, nor did it dispute the law as applied by the Board in January 2007. Instead, it appears that the Joint Motion disputes the Board's factual findings regarding this case, which the Board will address below. The parties of the Joint Motion found that "the Board's reasons and bases do not adequately explain why the lay testimony provided by the appellant was rejected as substantiation of in-service asbestos exposure; this is particularly so in light of the fact that the Board did not make a credibility determination as to the Appellant and his statements." Joint Motion at page 3. The Board notes that although Veteran believed that he was exposed to asbestos while he incinerated the garbage and trash of the ship, and he generally stated that the WWII vessels he served on were highly contaminated with asbestos, he did not specifically indicate how, when, or where he was exposed to asbestos. He did not provide the dates and places that he was exposed to asbestos in service, his organization and rank at the time of each exposure, how he was exposed, the names of other service persons who were with him at the time of exposure, and what other things that may cause the claimed respiratory disability (cigarettes, chemicals, etc.) he was exposed to while he was in service and postservice as was requested in July 2003 VA correspondence. The Board has considered the Veteran's contentions and finds that there is no presumption of asbestos exposure merely as a result of having served aboard a ship. See Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Veteran's MOS of Seaman was not one of the major occupations that involved exposure to asbestos such as mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. M21-1, Part VI, 7.21. His MOS of Seaman, alone, does not indicate a high probability of exposure to asbestos. The Board notes that the Veteran also contends that worked with insulation while performing one of his duties as a Seaman. However, there was no corroborating evidence to support his contentions. Although the Veteran recently stated that he was treated in- service, in 1945, for asbestos exposure, his STR's are completely negative for any such treatment. His STR's show treatment for such ailments as a contusion on his 3rd finger, catarrhal fever, or furuncle on the right elbow. It appears logical that had he sought treatment for asbestos exposure in 1945 as he claimed he did, it would have been documented. On July 1946 separation examination, a history of illnesses specifically noted that he had usual childhood disease, contusion of the right 3rd finger in 1945 and furuncle of the right elbow. Examinations of the respiratory system, bronchi, lungs, pleura and his cardiovascular system were normal. The Board is of the opinion that the contemporaneous STR's which weigh heavily against the claim of having in- service asbestos related treatment have greater probative value than the Veteran's reported history many years later. See Buchanon v. Nicholson, 451 F.3d 1331 (2006) (the Board may weigh the lack of contemporaneous medical records against a Veteran's lay evidence, but that the lack of such records does not render lay evidence not credible). The fact that the STR's were prepared at the crucial time (i.e. while the Veteran was still in service), give the STR's greater evidentiary value than a recollection made many years later based on a potentially faulty memory. The STR's were a record of objective examination, while the history reported to VA and to the VA examiner were potentially biased by the possibility of monetary gain. However, just because a Veteran stands to gain monetary benefits from the evidence is not enough to ignore a Veteran's testimony. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). But here, there is more than just the absence of STR's or personnel records indicating whether or not the Veteran was exposed to asbestos in service. The Board notes that the Veteran indicated that he initiated a class action law suit claim against his post service employer of 20 years (DuPont) for asbestos exposure. In 1990, he was referred to Dr. B., by his class-action lawsuit attorney, in which it was not reported at that time that he was exposed to asbestos in the military. Rather, a history was reported of the Veteran working all of his life as a millwright and pipefitter at DuPont. The Board finds it significant that approximately 21 years after he initiated the workplace asbestos related claim, he now asserts that he was exposed to asbestos in service, and that his currently diagnosed asbestosis was related to his in-service exposure. The decades long evidentiary gap between the Veteran's active service, the class action law suit for an asbestos related claim against his post service employer of 20 years, and the subsequent claim of the Veteran having asbestosis as a result of his military service, combined with a review of the Veteran's STR's, his MOS of Seaman, and the absence of any corroborating evidence calls into question the Veteran's credibility about the nature of his asbestos exposure and raises a logical inference that the Veteran's personal interest in obtaining compensation benefits is greater than his veracity. The Board therefore restates that the objective evidence of record does not show that the Veteran was exposed to asbestos while serving in the Navy. Furthermore, the objective medical evidence is more credible than the Veteran's contentions provided almost sixty years after the fact (and with at least 20 years of post service asbestos exposure), which were given for the purpose of qualifying for compensation benefits. Regardless, the question of whether the Veteran was exposed to asbestos in service is not the critical issue in this case (based on the fact that the Veteran served on active duty more sixty years ago, the Board finds that a remand by the Board to the RO will never resolve this issue). The critical issue in this case is whether it is at least as likely as not that the Veteran's current disorder was caused by his military service. Here, the parties of the Joint Motion appear to dispute the Board's finding that the in May 2006, the VA examiner indicated that the Veteran's asbestosis was secondary to his post-service occupation. The Board subsequently noted that the VA examiner was unable to determine if working in the incinerator room increased the likelihood of a diagnosis of asbestosis without resulting in speculation, especially considering that the Veteran was involved in a class action law suit with a life long industrial employer that, the Veteran, himself, claimed gave him asbestosis . The parties of the Joint Motion found that the examiner did not actually state that the Veteran's asbestosis was secondary to post- service exposure, something the Board subsequently acknowledged. The Board has been asked to provide an adequate explanation of reasons or bases for its decision. Joint Motion at pages 3-4. The Board notes that the May 2006 VA examination is the only medical opinion of record that addresses the Veteran's current asbestosis and his service. The VA examination report noted that the Veteran's claims file was available and reviewed. Before, the examiner provided an opinion, he or she noted the Veteran's accounts of asbestos exposure both in and out of service. The examiner found that the Veteran's chest x-ray met the criteria of a diagnosis of "Asbestos", but that he did not suffer from and of the health problems related to this disorder. (It appears that the examiner intended to diagnose the Veteran with asbestosis, rather than "Asbestos".) As previously mentioned the VA examiner opined that he or she was unable to determine if working in the incinerator room would increase the likelihood of a diagnosis of asbestosis without resulting in speculation, especially considering that the Veteran was involved in a class action law suit with a life long industrial employer that he claimed gave him asbestosis. The Board recognizes that the VA examiner ultimately found that any suggestion of a relationship between the current disability and an event in service was speculative, and finds that medical evidence that is only general or speculative in nature is of no probative value. See Bostain v. West, 11 Vet. App. 127 (1998); Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Furthermore, the Board must look to all facts in this case, including the critical fact that the Veteran was able to function well for decades after service and that he had, by his own admission, significant asbestos exposure after service and, based on his own statements and a review of the record, limited (if any) exposure to asbestos during service. The Board also recognizes the arguments advanced by the Veteran that his asbestosis is related to his service, including asbestos exposure therein. However, the resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, require professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms subject to lay observation such as breathing difficulty. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, asbestosis is a complex disorder which requires specialized training for a determination as to diagnosis and causation, and it is therefore not susceptible of lay opinions regarding etiology. As there is no probative medical evidence that the Veteran's asbestosis is related to his service, and the Veteran is not competent to provide an opinion relating to the etiology of his asbestosis, the Board finds that the weight of the evidence is against a finding of a nexus between the Veteran's service and his current asbestosis. As the evidence preponderates against the claim for service connection for asbestosis the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER Service connection for asbestosis is denied. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs