Citation Nr: 0945562 Decision Date: 12/01/09 Archive Date: 12/08/09 DOCKET NO. 06-36 506 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for service-connected degenerative joint disease of the left knee. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as a result of in- service exposure to asbestos. 3. Entitlement to service connection for coronary artery disease, to include as a result of in-service exposure to asbestos. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1962 to February 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2006 RO decision, which granted a claim for service connection for degenerative joint disease of the left knee and assigned a 10 percent evaluation, effective June 29, 2005, and denied claims for service connection for COPD and coronary artery disease. The Board notes that the Veteran indicated on his November 2006 VA Form 9 Appeal that he wished to have a hearing before a member of the Board. The Veteran was sent a letter in September 2007 informing him that he had been scheduled for a video conference hearing on October 26, 2007. The Veteran failed to report for this hearing. He did not show good cause for his failure to report, nor did he request that this hearing be rescheduled. As such, the Board will proceed to the merits of the claims. FINDINGS OF FACT 1. The Veteran's service-connected degenerative joint disease of the left knee is manifested by limitation of motion from 5 to 90 degrees, complaints of pain, swelling, tenderness, slight crepitus, popping and grinding with movement, and use of a knee brace, cane, and knee immobilizer. 2. COPD is not shown by the medical evidence of record to be etiologically related to a disease, injury, or event in service. 3. Coronary artery disease is first shown by medical evidence dated several years after the Veteran's discharge from service, and the most probative medical evidence of record does not show it to be etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for service-connected degenerative joint disease of the left knee have not been met. See 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5261 (2009). 2. COPD was not incurred in or aggravated by active military service, and may not be presumed to have been incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). 3. Coronary artery disease was not incurred in or aggravated by active military service, and may not be presumed to have been incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and 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) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in August 2005 and July 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, a March 2006 letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA and private medical records are in the file. All records identified by the Veteran as relating to these claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2009). The Veteran was provided a VA examination most recently in February 2006, which addressed his claims for service connection for COPD and coronary artery disease. The examiner reviewed the claims files, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. The Board finds this examination report and opinions to be thorough and complete. Therefore, the Board finds this examination report and opinions are sufficient upon which to base a decision with regard to these claims. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2009). The RO provided the Veteran with a VA examination for his left knee disability in February 2006. The examiner reviewed the claims file, thoroughly examined the Veteran, and conducted the appropriate diagnostic tests and studies. Barr. The Board finds this examination report to be thorough and consistent with contemporaneous medical records. Thus, the Board concludes that the examination in this case is adequate upon which to base a decision with regards to this claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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) (2009). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2009). In order to establish direct service connection for a disability, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence 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 Gutierrez v. Principi 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Certain diseases, to include arteriosclerosis or coronary artery disease, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2009). In this regard, it is noted that a "Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2009). The diseases alluded to above include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2009). Notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2009). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2009). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2009). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). 1. Entitlement to an evaluation in excess of 10 percent for service-connected degenerative joint disease of the left knee. In an April 2006 rating decision, the RO granted service connection for degenerative joint disease of the left knee and assigned a 10 percent evaluation, effective June 29, 2005, under Diagnostic Codes "5010-5261". Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2009). The Veteran seeks a higher evaluation. Degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2009). Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II (2009). Under Diagnostic Code 5261, a 10 percent disability rating is warranted for extension limited to 10 degrees; a 20 percent disability rating is assigned for extension limited to 15 degrees; a 30 percent disability rating is assigned for extension limited to 20 degrees; a 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. See 38 C.F.R. § 4.71a (2009). According to Diagnostic Code 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees; a 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. See 38 C.F.R. § 4.71a (2009). Separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension), both currently codified under 38 C.F.R. § 4.71a, may be assigned for disability of the same joint. See VAOPGCPREC 9-04 (2004). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Board notes that the Veteran underwent a VA examination in February 2006. The examiner reviewed the claims file and examined the Veteran. The examiner noted that the Veteran currently has swelling if his knee goes out of place. The Veteran reported that he has been told that he needs a total knee replacement. He indicated that he feels unstable and that pivoting aggravates his symptoms. The Veteran reported that he needs to have fluid removed when his knee swells. He described his pain as a constant, dull, achy sensation, which then changes to a sharp pain that is localized to the knee. His pain worsens with cold/damp weather. The Veteran's knee is treated with oral medications, steroid injections, ice, heat, massage, rest, stopping the aggravating activity, knee brace, and a chiropractor. He experiences flare-ups of pain approximately 3 times per year for at least 3 days and is somewhat dependent on swelling. Sometimes, he needs to have the knee aspirated. He uses a knee brace, cane, and knee immobilizer. He has had 3 arthroscopies. The Veteran denied subluxation and dislocation. Examination revealed that the Veteran's extremities were properly aligned and grossly symmetric. Muscle mass, tone, and strength were symmetric with strength 5/5 bilaterally in the upper and lower extremities, with fatiguing and lack of endurance with minimal resistance greater than gravity. The Veteran was noted as having pain and painful range of motion, as evidenced by the Veteran's statement, facial grimace, and resistance to range of motion movement. Slight tenderness of the lateral and medial aspect, minimal swelling, slight crepitus of the medial aspect of the knee, and popping and grinding with movement were noted. It was noted that the Veteran was unable to do repetitive movement secondary to the Veteran's debilitated state. Upon examination, the Veteran was noted as having a range of motion of 5 to 90 degrees with pain at 50 degrees. He had negative Drawer and McMurray tests. The Veteran was diagnosed with degenerative joint disease of the left knee. The examiner noted that it was difficult to assess the Veteran's left knee secondary to his severe COPD, which severely limits him. However, the examiner noted that the Veteran had moderate functional impairment secondary to his left knee. The claims file also contains VA and private treatment records. In a June 2006 VA treatment record, the Veteran was noted as having a left knee surgery in 1986. In a September 2004 VA treatment record, the Veteran was noted as having a long history of left knee pain. In a July 2004 private treatment record from Iowa Heart Center, it was noted that the Veteran has left knee joint discomfort and needs replacement. In an April 2002 treatment record from Des Moines Orthopaedic Surgeons, P.C., it was noted that the Veteran twisted his left knee in March 2002 and was experiencing pain. The physician noted that the Veteran had normal heel-toe gait, except he keeps his knees slightly flexed when he ambulates. There was no significant antalgia. The Veteran had no significant effusion, but he had an obvious 2+ Lachman and a pivot shift on his left knee suggestive of an old anterior cruciate ligament tear. The Veteran was noted as having good strength, good palpable pulses, good capillary refill, calves nontender, normal reflexes, and normal strength in and around the knee. The physician noted that, at some point, the Veteran will need a total knee replacement. With respect to granting an increased rating under Diagnostic Code 5261, the Board notes that the Veteran's range of motion was recorded as 5 degrees to 90 degrees at the February 2006 VA examination. There is no medical evidence of record reflecting that the Veteran has limitation of extension beyond 5 degrees. Additionally, there is no indication in the February 2006 VA examination report, or in any other medical evidence of record, that the Veteran's extension is limited to 10 degrees, as needed for a 10 percent evaluation under this diagnostic code, due to pain. Therefore, as the Veteran's limitation of extension does not reach a compensable level, an increased rating is not warranted under Diagnostic Code 5261. With respect to granting an increased rating under Diagnostic Code 5260, there is no medical evidence of record, to include the February 2006 VA examination report, reflecting that the Veteran has limitation of flexion beyond 90 degrees. Even considering further limitation of flexion due to pain, the evidence of record reflects that the Veteran's flexion is limited to 50 degrees, not 45 degrees, as needed for a 10 percent evaluation. As such, an increased rating cannot be assigned under Diagnostic Code 5260 either. The Board has considered alternative avenues through which the Veteran may obtain an increased disability rating. Diagnostic Code 5257 addresses impairment of the knee in the form of recurrent subluxation or lateral instability. The claims file contains no clinical evidence reflecting that the Veteran experiences lateral instability or recurrent subluxation. The Veteran specifically denied having subluxation at the February 2006 VA examination, and, while the Veteran reported feeling unstable at this examination, physical examination was entirely negative for any evidence of lateral instability. While the Board recognizes that the Veteran is competent to describe symptomatology, the Board ultimately places more probative weight on the objective findings of the VA health care specialist who conducted thorough testing in order ascertain the presence of instability. Given the examiner's negative findings, the Board finds that the preponderance of the evidence is against granting a separate compensable rating under Diagnostic Code 5257. The Board notes in passing that it has considered the earlier clinical findings from 2002 suggesting a positive Lachman's test. However, given that this finding was reported in 2002 several years prior to the period that is the subject of this appeal, the Board finds it to be of much less probative value than the more contemporaneous VA examination in determining the current severity of his disability. Diagnostic Code 5258 (dislocated semilunar cartilage) and Diagnostic Code 5259 (removal of semilunar cartilage, symptomatic) both address issues of cartilage damage. There is no evidence of record reflecting that the Veteran has dislocated, or undergone removal of, cartilage. Therefore, Diagnostic Codes 5258 and 5259 are not applicable. The remaining applicable diagnostic codes relating to knee disabilities include Diagnostic Code 5256 (ankylosis of the knee), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (for genu recurvatum). However, as there is no evidence of record showing that the Veteran has ankylosis of the knee, impairment of the tibia and fibula, or acquired, traumatic genu recurvatum, these diagnostic codes are also not applicable. With regard to assigning a higher disability rating based on functional loss as contemplated by the Court's holding under Deluca, the Board acknowledges the Veteran's complaints of pain. However, as the Veteran is already being assigned a 10 percent evaluation, despite the fact that neither his flexion or extension are limited to a compensable level under Diagnostic Codes 5260 or 5261, even with consideration of limitation due to pain, the Board finds that additional functional loss due to subjective complaints are already being considered according to 38 C.F.R. §§ 4.40 or 4.45 and additional compensation need not be assigned. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. However, the Veteran's left knee disability has not been shown to cause marked interference with employment beyond that contemplated by the Schedule for Rating Disabilities; has not necessitated frequent periods of hospitalization; and has not otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. Thus, the Board finds that the requirements for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). The Board concludes that the preponderance of the evidence is against the claim for an increased rating, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings is not for application. Fenderson, supra. 2. Entitlement to service connection for COPD and coronary artery disease, to include as a result of in-service exposure to asbestos. The Veteran is seeking entitlement to service connection for COPD and coronary artery disease as a result of in-service exposure to asbestos. Specifically, he asserted in his June 2006 notice of disagreement (NOD) that his sleeping area in service was 2 feet from pipes wrapped with asbestos and it was all over the ship on which he served for 4 years. As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1 MR, part VI, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non- exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: 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, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (e). A review of the Veteran's service treatment records reflects no in-service complaints, treatment, or diagnoses of COPD or coronary artery disease. In a service treatment record from October 1964, the Veteran complained of shortness of breath. Examination of the chest and heart were noted as normal. No reason for shortness of breath was found, and the Veteran was advised to stop smoking. At no time during service was the Veteran diagnosed with a heart or respiratory condition. The Veteran's personnel records reflect that he served aboard ships throughout active duty. The Board notes that the Veteran underwent a VA examination in February 2006. The examiner reviewed the claims file and noted the Veteran's medical history. Specifically, the examiner noted that the Veteran was diagnosed with COPD in 1999 and arteriosclerotic coronary artery disease with his first myocardial infarction in 1985. The examiner noted that the Veteran worked as a painter and retired in 2002. He has smoked 2 packs of cigarettes per day for 40 years. Upon examination of the Veteran and review of the claims file, the examiner diagnosed the Veteran with COPD and coronary artery disease status post 7 vessel coronary artery bypass graft surgeries and status post stent replacement. The examiner stated that the Veteran's COPD is less likely than not that caused by or the result of the Veteran's exposure to asbestos during his military service. The Veteran's COPD is at least as likely as not caused by or the result of this Veteran's 60 "pk year history". The examiner went on to state that it is difficult to asses the Veteran's coronary artery disease secondary to severe COPD which severely limits him, but, with the severity and history of his coronary artery disease, he would be at least as likely as not to have moderate to severe functional impact secondary to his coronary artery disease. The examiner the determined that the Veteran's coronary artery disease is less likely than not caused by or the result of the Veteran's asbestos exposure during his military service. The Board notes that the claims file also contains private medical records documenting treatment for COPD and coronary artery disease. In an April 2001 treatment record from Iowa Heart Center, it was noted that the Veteran had very short breath due to his COPD, secondary to his continued tobacco use. In a May 2001 treatment record from Chest, Infectious Disease and Critical Care Associates, P.C., it was noted that, in the past, the Veteran had exposure to dry wall compound that contained asbestos and, with that, he did some sanding. The examiner noted that it was in this context that he had asbestos exposure. In an April 2004 private treatment record from Mercy Hospital Medic, it was noted that the Veteran smoked 1 to 2 packs of cigarettes per day for 50 years. The Board notes that the claims file contains no private or VA medical records reflecting that the Veteran's COPD or coronary artery disease is caused by his active duty service or exposure to asbestos during active duty. With regard to establishing service connection on a presumptive basis, the Board notes that, on October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of Veterans Affairs announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias. To the extent that coronary artery disease may be related to ischemic heart disease, the Board has considered the effects of this revision to 38 U.S.C. § 1116. However, the claims file contains no indication, nor does the Veteran assert, that he served in the Republic of Vietnam. In fact, the Veteran specifically denied serving in the Republic of Vietnam in his June 2005 claim. Additionally, COPD is not among the diseases listed as being presumptively associated with agent orange exposure. As such, exposure to herbicides is not conceded, and service connection cannot be granted on a presumptive basis for either COPD or coronary artery disease as a result of herbicide exposure. With regard to establishing service connection on a presumptive basis under 38 U.S.C.A. § 1112, the Board notes that there is no medical evidence indicating that the Veteran had coronary artery disease to a compensable degree within one year of discharge from active duty, nor has the Veteran asserted such. Therefore, service connection for coronary artery disease cannot be granted on a presumptive basis under 38 U.S.C.A. § 1112. With regard to establishing service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2009). Currently, there is no medical evidence of record indicating that the Veteran had coronary artery disease, COPD, or any other lung, respiratory, or heart condition in service, and no competent medical opinion has related a current diagnosis of COPD or coronary artery disease to service or to in-service asbestos exposure. In fact, the only medical opinions of record on the matter specifically reflect that the Veteran's COPD and coronary artery disease are less likely than not that caused by exposure to asbestos during his military service. Thus, the Veteran's claims must fail on a direct basis. See Hickson, supra. The Board would also like to note that, to the extent that any of the Veteran's disabilities may be related to his extensive history of tobacco use, the Board notes that service connection for disability on the basis that it resulted from disease or injury attributable to the use of tobacco products during active service is prohibited by law. 38 U.S.C.A § 1103(a) (West 2002); 38 C.F.R. § 3.300(b) (2009). The Board acknowledges the Veteran's contentions that he has COPD and coronary artery disease as a result of his active duty. However, no medical evidence has been submitted to support this contention. The Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be competent to offer an opinion on complex medical questions, such as a possible relationship between asbestos exposure and coronary artery disease or COPD. See Jandreau, 492 F.3d at 1377 (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As such, the Board finds the February 2006 VA opinions to be more probative than the Veteran's lay assertions. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt rule does not apply, and the claims for service connection for COPD and coronary artery disease must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation in excess of 10 percent for service-connected degenerative joint disease of the left knee is denied. Entitlement to service connection for COPD, to include as a result of in-service exposure to asbestos is denied. Entitlement to service connection for coronary artery disease, to include as a result of in-service exposure to asbestos is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs