Citation Nr: 1104322 Decision Date: 02/02/11 Archive Date: 02/14/11 DOCKET NO. 07-32 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a foot disorder including as due to mustard gas and asbestos exposure. 2. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD)/emphysema including as due to mustard gas and asbestos exposure. ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The Veteran had active duty military service from January 1973 to September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating determination by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Indianapolis, Indiana. The Board notes that the above issue was remanded by the Board in May 2009 and August 2009 for further evidentiary development. As will be further explained below, this development having been achieved, the issue is now ready for appellate review. FINDINGS OF FACT 1. The competent evidence fails to demonstrate that any left foot disorder is related to his active duty service including as due to mustard gas and asbestos exposure. 2. The competent evidence fails to demonstrate that the Veteran's COPD/emphysema is related to his active duty service including as due to mustard gas and asbestos exposure. CONCLUSIONS OF LAW 1. A left foot disorder was not incurred in or aggravated by active military service, nor is it due to exposure to mustard gas or asbestos exposure. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.316 (2010). 2. COPD/emphysema was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred, to include as due to in-service exposure to mustard gas and asbestos. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.316 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2010); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letter dated in July 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2010); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, this letter advised the Veteran what information and evidence was needed to substantiate the claim decided herein. This letter also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. On March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The July 2006 letter provided this notice to the Veteran. The Board observes that the July 2006 letter was sent to the Veteran prior to the May 2007 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this regard, the notice provided in the July 2006 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b) (2010), and Dingess, supra. Additionally, the Board notes that the Veteran was provided notice with regard to the evidence necessary to show that he was exposed to mustard gas and/or asbestos. The Board notes that this information was provided in the July 2006 letter. Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2010). In this regard, the Veteran's service treatment records, VA treatment records, and private treatment records are associated with the claims folder. The Board notes that the Veteran claims to have received treatment at the Indianapolis, Indiana, VAMC. However, no VA treatment records pertaining to the Veteran could be located at that facility. The Board notes that a July 2010 formal finding noted the unavailability of the Indianapolis VAMC treatment records and the Veteran was notified in a July 2010 letter. The Board notes that VAMC records from the Puget-Sound VAMC and the Northern Indiana VAMC are of record and were reviewed. In May 2009 and August 2009, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the above stated issues were previously remanded in order for the RO to schedule a video hearing and attempt to obtain Social Security Administration (SSA) records in the May 2009 and August 2009 remands respectively. The Board notes that the SSA records were obtained and the Veteran's hearing request was withdrawn in a July 2009 letter from the Veteran. The requested records having been obtained and the hearing request having been withdrawn, the issues now return to the Board for appellate review. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2010); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board acknowledges that the Veteran has not had a VA examination specifically for his current claims seeking service connection for a foot disorder and COPD/emphysema. The Board concludes an examination is not needed in this case because while the Veteran is currently diagnosed with residuals of a foot disorder and COPD/emphysema, there is no indication that the Veteran suffered from either disability while on active duty service and no credible link between any currently suffered disability and the Veteran's active duty service. Additionally, the Board notes that there is no credible evidence supporting the Veteran's contentions that he was exposed to either asbestos or mustard gas during active duty service. 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 Veteran'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 Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a Veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all Veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Furthermore, as discussed above, the Board finds that there has been substantial compliance with its May 2009 and August 2009 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). As a general matter, service connection for a disability on the basis of the merits of such a claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). 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) (2010). 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) (2010). I. Mustard Gas Exposure The Veteran claims that, as a result of his exposure to mustard gas during service, he developed a foot disorder and COPD/emphysema. Pursuant to 38 C.F.R. § 3.316, exposure to certain specified vesicant agents during active military service, together with the subsequent development of certain diseases, is sufficient to establish service connection in the following circumstances: (1) full-body exposure to nitrogen or sulfur mustard during active military service, together with the subsequent development of chronic conjunctivitis, keratitis, corneal opacities, scar formation, nasopharyngeal cancer, laryngeal cancer, lung cancer (excluding mesothelioma), or squamous cell carcinoma of the skin; (2) full-body exposure to nitrogen or sulfur mustard or Lewisite during active military service together with the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma, or COPD; or (3) full-body exposure to nitrogen mustard during active military service together with the subsequent development of acute nonlymphocytic leukemia. Service connection will not be established under this section if the claimed condition is due to the Veteran's own willful misconduct, or if there is affirmative evidence that establishes a nonservice-related supervening condition or event as the cause of the claimed condition. 38 C.F.R. § 3.316. If a Veteran is found not to be entitled to the regulatory presumption of service connection under 38 C.F.R. § 3.316, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the Veteran contends that he was exposed to mustard gas during training and in the ships and barracks in which he stayed. The Board notes, however, that according to a March 2007 electronic communication from the Veteran's Benefits Administration, VA central office, citing a Department of Defense response, the Veteran cannot be considered to have been exposed to a mustard agent because nothing in his records supports his claim that he was exposed. The Board acknowledges the Veteran's contentions and notes that the Veteran is competent to report his experiences while on active duty, but the Board finds that the Veteran's contentions are not credible because the contemporary records from that time to not indicate that the Veteran was ever exposed to mustard gas during training or at any facility in which the Veteran was housed. The Board assigns greater probative weight to the official records than to the Veteran's current recollection because the official records were made in the regular course of business, contemporaneous with the event, and thus have a greater likelihood of accuracy than the Veteran's current effort to recall events occurring 30 to 40 years previous. Therefore, a preponderance of the evidence is against a finding that the Veteran was exposed to mustard gas during his active service. With regard to the Veteran's claim for COPD/emphysema, the Board observes that both COPD and emphysema are noted presumptive diseases, however, in order for the presumption to apply, the Veteran must have been exposed to mustard gas and, as stated there is no evidence that he was in fact exposed to mustard gas. Moreover, the Board notes that there is no credible medical evidence stating that the Veteran's COPD/emphysema is related to his active duty service. Indeed, as will be further noted below, the only causal link provided in private as well as the VA treatment records is the Veteran's decades long smoking habit. After weighing all the evidence, the Board finds greater probative value in the records that indicate that the Veteran was not exposed to mustard gas while on active duty. Therefore, the Veteran's contentions are of no probative weight. In this case, the only link between any current disability and mustard gas exposure is provided by the Veteran and is contradicted by the overall evidence. The Board acknowledges the Veteran's claims that he was exposed to mustard gas while on active duty and that this exposure caused his COPD/emphysema and left foot disorder, however the preponderance of the evidence of record indicates that the Veteran was not exposed to mustard gas and he is not competent to comment on whether that exposure was the cause of his symptoms or disorders. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Finally the Board notes that with regard to a left foot disorder, it is not a disease or disability included in the presumptive diseases, and therefore even if the Veteran had been exposed, the presumption would not apply. Based on this evidence, the Board finds that a service connection finding, on a presumptive basis under 38 C.F.R. § 3.316, would be unwarranted. The evidence does not show that the Veteran experienced full body exposure to mustard gas during service or, with regard to a left foot disorder, that the Veteran's claimed condition is a presumptive condition. II. Asbestos Exposure 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. VA has, however, 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). The Veteran contends that he was exposed to asbestos during training and in the ships and barracks in which he was housed or transferred. The Veteran's record, however, does not indicate that he was exposed to asbestos. Indeed his military occupational specialty of rifleman and infantry unit leader are not indicative of a high incidence of asbestos exposure. With regard to post-service occupation, the Board notes that the Veteran worked as a factory worker and a truck driver. There is no indication that the Veteran was exposed in his post service occupations. Additionally, neither of the Veteran's post-service occupations are included in the non-exclusive list of occupations that have higher incidents of asbestos exposure. The Board notes that the Veteran does have diagnoses of COPD and emphysema and while neither COPD nor emphysema are specifically listed as part of the non-exclusive list for asbestos-related diseases, the diseases typically associated with asbestos exposure do most often affect the lungs and digestive tract. However, the Board notes that there is no indication in the medical records that the Veteran's COPD/emphysema is related to asbestos exposure. Indeed, as will be further explained below, there is evidence that the Veteran's COPD/emphysema is not the result of asbestos exposure. Additionally it is noted that a left foot disorder is not listed as part of the non-exclusive list for asbestos-related diseases, nor is it a disorder that affects the lungs and digestive tract. In this regard, in Dyment v. West, 13 Vet. App. 141, 145 (1999), the United States Court of Appeals for Veterans Claims (Court) found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of 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 VAOGCPPREC 04-00. As such the Board finds that the Veteran is not entitled to service connection for COPD/emphysema or a left foot disorder as due to asbestos exposure. III. Direct Service Connection Even if a Veteran is found not to be entitled to the regulatory presumption of service connection under 38 C.F.R. §§ 3.311 and/or 3.316, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As noted above, the Board observes that the Veteran is currently diagnosed with COPD and emphysema as evidenced in various private and VA treatment reports. The earliest evidence of record of a lung disorder diagnosis is for COPD by a May 2002 private treatment report. Most recently in a February 2010 VA treatment report it is noted that the Veteran suffers from COPD and pulmonary emphysema. With regard to the Veteran's left foot disability the Board notes that the Veteran is currently diagnosed with various residuals of foot disorders, left foot. Initially the Board notes a November 1996 x-ray in which it is revealed that the Veteran suffers from a probable acute nondisplaced fracture of the base of the fifth metatarsal. A January 1997 MRI revealed a 3 cm lobulated septated fluid signal mass adjacent to the fifth tarsal metatarsal joint space which most likely represents either a ganglian or a synovial cyst. The Board observes a March 2003 letter from the Veteran's treating physician in which it is noted that the Veteran has been receiving treatment for various recurring foot problems which have required various surgical corrections since August 1997. As such the Board finds that the Veteran does have a current lung disability and a left foot disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). While the Veteran does have a current disability there is no competent evidence that the Veteran suffered from COPD/emphysema or a foot disorder while in-service. Indeed, the Board notes that the Veteran's August 1972 entrance examination, February 1977 re-enlistment examination, and his July 1981 separation examination lists the Veteran's feet and lungs and chest as normal. Indeed, the Veteran's service treatment records are devoid of any mention of COPD or emphysema, although the Board notes that the Veteran was diagnosed with acute bronchitis according to a March 1976 service treatment note. However, as noted above there is no evidence that the Veteran suffered from a chronic lung disorder during active duty service. With regard to a medical nexus, the Board acknowledges the Veteran's contentions that both of his claims are related to active duty service or to exposure to asbestos or mustard gas while in active duty service. With regard to the Veteran's claim for a left foot disorder, there is no objective medical evidence linking the Veteran's foot disorder to active duty service. The Veteran contends that he has had problems with pain in his left foot that started during basic training and was made worse by all the standing and running during active duty service. The Board recognizes the Veteran's assertions that he has experienced pain since service; however, pain alone without an underlying disorder is not a disability for which service connection may be granted. Evans v. West, 12 Vet. App. 22, 31-32 (1998). The Board notes that the Veteran is competent to describe his left foot symptomatology and the Veteran's statements provide such subjective complaints. The Board further acknowledges that with regard to continuity of symptomatology, symptoms as opposed to treatment are of primary interest and the Veteran is competent to observe pain during and post service and that observation need not be recorded. However, while the Veteran is competent to provide continuity of symptomatology, as noted above, it is also necessary to show that the Veteran is credible in his assertions. The Board must assess the credibility and weight of all the 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. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). 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. Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board acknowledges that when determining the credibility of lay evidence, the Board cannot determine that credibility is lacking merely because there is no corroborating contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, in this instance it is not the absence of contemporaneous medical evidence that is at issue, rather, it is the abundance of medical evidence that fails to note the Veteran's claimed disorders that serves as evidence of a lack of credibility. It is logical to conclude that a reasonable person, who had access, would seek medical attention if it were required. The Veteran appears to reasonably decide to take the time to seek medical treatment in regards to other medical problems, so it is unclear as to why he would not take the time to do so in regards to pain in his left foot. The Veteran noted that the pain caused by this disability affects his daily living. It is reasonable to believe that the claimed constant pain caused by this disability would be enough to cause the Veteran to seek medical attention. As such the Board finds the Veteran's statements with regard to continuity of symptomatology are not credible on the basis that he sought medical attention for other ailments so the lack of treatment with regard to left foot disorder makes his statements appear inconsistent with the record. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). It therefore follows that his assertion of constant pain during and since service, relating to a left foot disorder is not credible. Consequently, his assertions are afforded no probative value regarding the question of whether a left foot disorder is related to his active duty service. Having found the Veteran's statements with respect to his left foot disability to be not credible with regard to continuity of symptomatology and finding no competent and credible medical evidence to support continuity of symptomatology, the Board finds that direct service connection for a left foot disorder is not warranted. With regard to the Veteran's claim for COPD/emphysema, there is medical evidence of record that links the Veteran's COPD/emphysema with his long time excessive smoking habit. In this regard the Board observes the January 2010 VA treatment report noting that the Veteran has a 2-3 pack per day smoking habit for more than 30 years. Specifically, the Board notes a January 2006 letter from a treating physician that states that the Veteran continues to smoke which has resulted in him having COPD and exacerbations of his COPD requiring hospitalizations. As noted above, competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board notes that the Veteran is competent to report symptoms associated with breathing problems, but the Veteran is not competent to provide a medical nexus with regard to the cause of those symptoms. In this case, the Board affords greater probative weight to the Veteran's treating physician who stated that the Veteran's lung problems are the result of his long term excessive smoking habits. Additionally, in making this determination, the Board points out that the first evidence of record of the Veteran having been diagnosed with COPD appears in 2002, approximately 21 years after his discharge from active duty service. The first evidence of record noting a left foot disability is a 1996 x-ray of the left foot; approximately 15 years after discharge from active duty service. This gap in the evidentiary record preponderates strongly against these claims on the basis of continuity of symptomatology. See Mense v. Derwinski, 1 Vet. App. 354 (1991). The Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the Veteran has not complained of the maladies at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Finally, the Board notes the Veteran's statements that he suffers from a left foot disorder and COPD/emphysema that are related to his active duty service to include in-service exposure to mustard gas and/or asbestos, and while the Veteran as a lay person is competent to provide evidence regarding any symptomatology, he is not competent to provide evidence regarding diagnosis, including the severity of a disease or disorder, or etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). 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 of disability subject to lay observation. 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); 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, the possibility of a causal relationship between a disability and exposure to mustard gas and asbestos requires specialized training for a determination as to causation, and is therefore not susceptible of lay opinions on etiology. Only a medical professional can provide evidence regarding etiology of a disease or disorder. Thus, the Veteran's statements are afforded no probative value with respect to the medical question of whether his claims are related to any exposure to mustard gas or asbestos that the Veteran might have suffered while in service. Under the above circumstances, the Board finds that a preponderance of the evidence is against the Veteran's claims of service connection for a left foot disorder and COPD/emphysema, to include as secondary to mustard gas or asbestos exposure. In this regard, the medical evidence shows current diagnoses with regard to both disabilities, however, there is no evidence that either disability was incurred during active duty service and the evidence of greater probative weight indicates that the Veteran was not exposed to mustard gas or asbestos during active duty service The Board has considered the benefit of the doubt rule; however, as a preponderance of the evidence is against these claims such rule does not apply and the claims must be denied. 38 U.S.C.A. §5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a foot disorder including as due to mustard gas and asbestos exposure is denied. Entitlement to service connection for COPD/emphysema including as due to mustard gas and asbestos exposure is denied. ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs