Citation Nr: 1018066 Decision Date: 05/14/10 Archive Date: 05/26/10 DOCKET NO. 06-25 200A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for diabetes mellitus, Type II, (DM II), to include as secondary to herbicide exposure. 2. Entitlement to service connection for a disability manifested by atrial fibrillation, to include as secondary to DM II. 3. Entitlement to service connection for a disability manifested by a heart murmur, to include as secondary to DM II. 4. Entitlement to service connection for emphysema and chronic obstructive pulmonary disease (COPD), to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.A. Kennerly, Counsel INTRODUCTION The appellant served on active duty from February 1957 to March 1967 and from August 1972 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). Procedural History The appellant filed his original claim in May 2005. The October 2005 rating decision denied the appellant's claims of entitlement to service connection for DM II, atrial fibrillation, heart murmur, emphysema, COPD and sleep apnea. The appellant submitted Notices of Disagreement in December 2005 [for DM II], January 2006 [COPD and emphysema] and August 2006 [for atrial fibrillation and heart murmur]. Statements of the Case were issued in July 2006 [for DM II] and June 2009 [for COPD, emphysema, atrial fibrillation and heart murmur]. The appellant timely perfected these appeals in August 2006 and June 2009. In an October 2006 letter, the appellant was notified that the Board's action on his claims was suspended as a result of the stay imposed [pursuant to Chairman's Memorandum, No. 01- 06-24 (September 21, 2006)] on all cases affected by the decision issued by the United States Court of Appeals for Veterans Claims (Court) in Haas v. Nicholson, 20 Vet. App. 257 (2006). Following further appellate litigation, a final decision was reached in the Haas case, which will be discussed in further detail below. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). Accordingly, pursuant to Chairman's Memorandum, No. 01-09-03 (January 22, 2009), the stay has been lifted and the Board may proceed to a decision in this matter. In March 2010, the appellant presented sworn testimony during a Board video conference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the appellant's claims file. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the appellant currently suffers from DM II that is the result of a disease or injury in service, to include exposure to herbicides. 2. The preponderance of the evidence is against a finding that the appellant currently suffers from a disability manifested by atrial fibrillation that is the result of a disease or injury in active duty service, present within one year of active duty service, or secondary to a service- connected disability. 3. The preponderance of the evidence is against a finding that the appellant currently suffers from a disability manifested by heart murmur that is the result of a disease or injury in active duty service, present within one year of active duty service, or secondary to a service-connected disability. 4. The preponderance of the evidence is against a finding that the appellant currently suffers from emphysema/COPD that is the result of a disease or injury in active duty service or any incident thereof, to include asbestos exposure. CONCLUSIONS OF LAW 1. DM II was not incurred in or aggravated by active duty service, nor may such be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131 (West 2002); 38 U.S.C.A. §§ 3.303, 3.307, 3.309 (2009). 2. A diagnosis manifested by atrial fibrillation was not incurred in or aggravated by active duty service and is not proximately due to, the result of, or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 1133, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.310 (2009); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). 3. A disability manifested by a heart murmur was not incurred in or aggravated by active duty service and is not proximately due to, the result of, or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 1133, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.310 (2009); see Allen, supra; see also Wallin, supra. 4. Emphysema/COPD was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131 (West 2002); 38 U.S.C.A. §§ 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). 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 appellant. 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 appellant 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). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claims decided herein, 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); 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 representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 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 Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Prior to initial adjudication of the appellant's claims, a letter dated in June 2005 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio, at 187. The July 2006 Statement of the Case also informed the appellant of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thereafter, the appellant's claims were readjudicated June 2009 and October 2009. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2009) (harmless error). In view of the foregoing, the Board finds that the appellant was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. 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, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes an examination is not needed in this case because the only evidence indicating the appellant "suffered an event, injury or disease in service", to include DM II, atrial fibrillation, heart murmur, COPD and emphysema, is his own lay statements. Such evidence is insufficient to trigger VA's duty to provide an examination. The Court has held, in circumstances similar to this, where the supporting evidence of record consists only of a lay statement, that VA is not obligated, pursuant to 5103A(d), to provide an appellant with a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the appellant's claim because there was no evidence, other than his own lay assertion, that " 'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). See also Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 3.159(c)(4)(i) is not in conflict with § 5103A(d) and evidence of record "establishing that the veteran suffered an event, injury, or disease in service," is required to trigger VA's duties pursuant to § 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligations under § 5103A to provide a veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some casual connection between his disability and his military service"). There is no reasonable possibility that a medical opinion would aid in substantiating the appellant's claims since it could not provide evidence of past events. 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). Accordingly, the Board will proceed to a decision on the merits as to the issues on appeal. II. The Merits of the Claims The appellant contends that he currently suffers from DM II, a disability manifested by atrial fibrillation, a disability manifested by a heart murmur, emphysema and COPD as a result of his time in active duty service. The Board disagrees. A. Diabetes Mellitus, Type II The appellant alleges that he currently suffers from DM II that is the result of a disease or injury in service. Specifically, the appellant claims that he was exposed to Agent Orange during his time in service in the United States Navy. Relevant Law and Regulations A disability may be service-connected if it results from an injury or disease incurred in, or aggravated by, military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including diabetes mellitus, when manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2009). 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. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Herbicide Exposure 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. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(6)(iii) (2009). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain listed diseases shall be service connected. Those diseases include Type 2 diabetes mellitus. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.309(e) (2009). Combee considerations In Combee v. Brown, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board must not only determine whether the appellant has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, [see 38 C.F.R. § 3.309(e)], but also must determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 (West 2002) and 38 C.F.R. § 3.303(d) (2009). Continuity of Symptomatology In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2009). Analysis With respect to element (1), current disability, B.A.H. treatment records document a diagnosis of DM II. See B.A.H. Treatment Records, July 22, 1992. Accordingly, Hickson element (1) is satisfied. With regard to Hickson element (2), the Board will separately address disease and injury. Concerning disease, there is no medical evidence of DM II in service or within the one year presumptive period after service found in 38 C.F.R. § 3.309(a). The appellant's service treatment records are entirely silent as to any complaint, treatment, or diagnosis of DM II. In particular, the separation examination dated May 1982 is pertinently absent any notation related to DM II. See Standard Forms (SFs) 88 & 93, Service Retirement Examination Reports, May 6, 1982. Further, competent medical evidence of record indicates that the appellant was initially diagnosed with DM II in July 1992. See B.A.H. Treatment Records, July 22, 1992. This is long after the end of the one year presumptive period. See 38 C.F.R. §§ 3.307, 3.309(a) (2009). Accordingly, Hickson element (2) is not satisfied as to disease. With respect to in-service injury, the appellant contends he was exposed to Agent Orange while in military service. As indicated above, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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. See 38 C.F.R. § 3.307(a)(6)(iii) (2009). "'Service in the Republic of Vietnam' includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." Id. The appellant's service in the waters off of Vietnam is not disputed. Specifically, service personnel records demonstrated that the appellant served aboard the U.S.S. REEVES from October 1972 to February 1975. The National Personnel Records Center (NPRC) confirmed that the U.S.S. REEVES served in the official waters of the Republic of Vietnam from: October 8, 1972 to November 11, 1972; November 15, 1972; November 25, 1972 to December 19, 1972; December 28, 1972 to January 11, 1973; January 21, 1973 to February 2, 1973; and February 23, 1973 to March 8, 1973. However, NPRC noted that the record did not indicate whether the appellant set foot in Vietnam. See NPRC Response, June 24, 2005. Crucially, such service in the official waters off the coast of Vietnam does not constitute 'service in the Republic of Vietnam.' See VAOPGCPREC 27-97 (O.G.C. Prec.27-97); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) [holding that the Court had erred in rejecting VA's interpretation of § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption]. Instead, 'service in the Republic of Vietnam' requires visitation (i.e. setting foot) in Vietnam. See 38 C.F.R. §§ 3.307(a), 3.313(a) (2009). Although the appellant's service aboard the U.S.S. REEVES does not by itself constitute service in Vietnam for purposes of the regulations relating to presumptive service connection due to Agent Orange exposure, the appellant has contended that his ship came within one mile of the Vietnam shore and that he "could have been" exposed to Agent Orange. See Notice of Disagreement, December 5, 2005. At no time has the appellant asserted that he actually set foot on shore in Vietnam. In short, the objective evidence does not show that any of the appellant's service involved actual visits within the country of Vietnam. Rather, the evidence demonstrates that he served on a deep-water vessel off the coast of Vietnam, which as discussed above, does not satisfy the statutory presumption of in-service herbicide exposure. Accordingly, the Board finds that the appellant is not entitled to the statutory presumption of Agent Orange exposure pursuant to 38 C.F.R. § 3.307(a)(6)(iii). As discussed above, in Combee v. Brown, the Federal Circuit held that when, as here, a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). In the absence of a statutory presumption of Agent Orange exposure, the Board is left with the question of whether DM II is the direct result of the appellant's time in active duty service. There is no indication the appellant suffered from DM II in service, nor was he exposed to Agent Orange while aboard the U.S.S. REEVES. In summary, with respect to in-service injury, exposure to Agent Orange cannot be presumed, due to the circumstances of the appellant's service; and there is no credible evidence that the appellant was actually exposed to Agent Orange. Hickson element (2) therefore has not been met with respect to both disease and injury, and the appellant's claim fails on this basis. For the sake of completeness, the Board will address the remaining Hickson element, medical nexus. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) [the Board has the fundamental authority to decide a claim in the alternative]. With respect to element (3), medical nexus, DM II is presumed to be service connected when a veteran has had Agent Orange exposure. See 38 C.F.R. § 3.309(e) (2009). However, as discussed above, in this case there is no Agent Orange exposure; thus, there is no presumed medical nexus. In the absence of an in-service incurrence of disease or injury, it follows that Hickson element (3), medical nexus, is necessarily lacking as well. In fact, the record is pertinently absent any competent evidence of medical nexus between the appellant's currently diagnosed DM II and his military service. To the extent that the appellant, or his representative, contends that a medical relationship exists between the appellant's current DM II and military service, their opinions are entitled to no weight of probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 495-95 (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]. Any such statement offered in support of the appellant's claim is not competent medical evidence and does not serve to establish a medical nexus. The appellant has been accorded ample opportunity to present competent medical evidence in support of his claim, but he has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is a claimant's responsibility to support a claim for VA benefits]. The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board is of course aware of the provisions of 38 C.F.R. § 3.303(b) relating to chronicity and continuity of symptomatology. However, supporting medical evidence is required. See Voerth v. West, 13 Vet. App. 117, 120-121 (1999) [there must be medical evidence on file demonstrating a relationship between a veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. Specifically, as was indicated above, the earliest diagnosis of DM II of record was in July 1992. As such, there is no competent medical evidence that the appellant was diagnosed with or treated for DM II for approximately 10 years after his July 1982 separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. Continuity of symptomatology after service is therefore not demonstrated. Further, the Board finds that the circumstances presented herein differ from those found in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case while there is a current diagnosis of DM II, there is no evidence of in- service disease and no persuasive evidence of in-service injury; specifically, exposure to herbicides. As such, a VA medical nexus opinion is not necessary. Accordingly, Hickson element (3) is also not satisfied. For the reasons and bases expressed above, the Board has concluded that a preponderance of the evidence is against the appellant's claim of entitlement to service connection for DM II, to include as due to herbicide exposure. The benefits sought on appeal are accordingly denied. B. Atrial Fibrillation & Heart Murmur The appellant contends that he currently suffers from a disability manifested by atrial fibrillation and a heart murmur that are either the direct result of his time in service or secondary to his DM II. The Board finds that the appellant's claims fail on both of these theories of entitlement. Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular renal disease including hypertension (and combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease), and endocarditis (including all forms of valvular heart disease), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). Service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury. See 38 C.F.R. § 3.310(a) (2009). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The appellant has not contended that his atrial fibrillation and heart murmur are the direct result of his time in active duty service. Indeed, review of the appellant's service treatment records is completely negative for any diagnoses or treatment for atrial fibrillation or heart murmur. See Service Treatment Records, generally. Further, there is no evidence that the appellant suffered from any heart problems within one year of his discharge from active duty service. Accordingly, he is not afforded the presumptions under 38 C.F.R. §§ 3.307, 3.309 (2009). No competent medical evidence has related atrial fibrillation or heart murmur to military service. Accordingly, the basis for a grant of service connection on a direct basis is not presented. Turning to the question of secondary service connection, though the appellant has established that he currently suffers from atrial fibrillation and heart murmur [see B.A.H. Treatment Records, generally], establishing element (1) under Wallin, the appellant has not established service connection for DM II. Accordingly, the appellant's claims of entitlement to secondary service connection fail on this basis and further discussion is not necessary. See Wallin, supra. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection, 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. C. Emphysema & COPD The appellant contends that he currently suffers from emphysema and COPD that are the result of a disease or injury in service, to include as secondary to asbestos exposure. Specifically, the appellant contends that he was exposed to asbestos during his time aboard ships in the United States Navy. 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 DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). 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). 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 former VBA Manual 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. See VA O.G.C. Prec. Op. No. 04-00. With respect to Hickson element (1), the appellant has been diagnosed with emphysema and COPD. See, B.A.H. Treatment Records, generally. Hickson element (1) has therefore been demonstrated. See Hickson, supra. The Board notes, however, that the appellant has not been diagnosed with asbestosis. "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." See McGinty v. Brown, 4 Vet. App. 428, 429 (1993). 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). With respect to Hickson element (2), the appellant and his representative have argued that the appellant was exposed to asbestos during service. As noted in the law and regulations section above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. Review of the appellant's service treatment records is completely negative for any respiratory complaints or treatment. Additionally, his military occupational specialties (MOS) included being an equipment operator and an air controller. These types of MOS are not typically associated with asbestos exposure, as noted above. The Board accordingly finds that the appellant was not exposed to asbestos in service and element (2) of Hickson has not been satisfied. Turning to crucial Hickson element (3), medical nexus, the Board notes that in August 1996, A.J.S., D.O. reviewed a single chest x-ray for the appellant. Dr. A.J.S. stated that this film showed pleural thickening, noting that this type of thickening was seen following asbestos exposure and was consistent with the diagnosis of pleural asbestosis. See Private Treatment Record, A.J.S., D.O., August 23, 1996. In December 1996, S.L.A., M.D. reviewed the appellant's records and noted that he had served aboard ships while in the United States Navy. The previous x-ray report was noted (indicating bilateral pleural thickening) and Dr. S.L.A. opined that the appellant suffered from asbestos-related pleural disease due to his "seafaring employment." See Private Treatment Record, S.L.A., M.D., December 19, 1996. Interestingly, in December 2001, a chest x-ray performed at B.A.H. indicated no evidence of hyperaeration and no evidence of asbestos-related disorders. See B.A.H. Treatment Record, December 11, 2001. In January 2002, based on the aforementioned chest x-ray, physical examination and Pulmonary Function Testing (PFT), it was noted that the appellant did not suffer from any bilateral pleural lung disease. See B.A.H. Treatment Record, January 2, 2002. Subsequent PFT in February 2002 again revealed normal spirometry. See B.A.H. Treatment Records, February 28, 2002. In March 2003, for the first time, chest x-rays revealed possible COPD and emphysema as well as probable bibasilar interstitial lung disease. See B.A.H. Treatment Record, March 5, 2003. Private treatment records from J.A.W., M.D., in July 2005, indicated that the appellant participated in low dose computed tomography as part of the National Lung Screening Trail for lung cancer detection. This testing was negative for lung cancer but the appellant's diagnoses of emphysema and bronchiectasis were continued. See Private Treatment Records, J.A.W., M.D., July 7, 2005. The heart of the appellant's claim appears to be his contentions that he has suffered from a respiratory disability nearly continually since service. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. Although the appellant is competent to testify as to his symptoms, supporting medical evidence of emphysema/COPD is required to sustain a service connection claim based upon continuity of symptomatology. See Voerth v. West, 13 Vet. App. 117, 120-121 (1999) [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. With regard to Hickson element (3), medical nexus, the Board finds that the 1996 medical statements in support of the appellant's claim to lack credibility. While each statement purports to connect the appellant's time in service to asbestos exposure, the subsequent December 2001 chest x-ray finding no evidence of any asbestos-related disorder vitiates these opinions. The Board notes that there are no other competent medical nexus opinions of record. To the extent that the appellant or his representative is contending that the currently diagnosed emphysema/COPD is related to the appellant's military service, neither is competent to comment on medical matters such as etiology. See Espiritu v. Derwinski, 2 Vet. App. 491, 494-495 (1992); see also 38 C.F.R. § 3.159(a)(1) (2008) [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 statements offered by the appellant in support of his own claim are not competent medical evidence and do not serve to establish a medical nexus. Accordingly, Hickson element (3) and has not been met, and the appellant's claim fails on this basis. In summary, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for pulmonary emphysema/COPD, to include as secondary to asbestos exposure. The benefits sought on appeal are accordingly denied. ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is denied. Entitlement to service connection for atrial fibrillation, to include as secondary to DM II, is denied. Entitlement to service connection for a heart murmur, to include as secondary to DM II, is denied. Entitlement to service connection for emphysema and chronic obstructive pulmonary disease, to include as secondary to asbestos exposure, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs