Citation Nr: 1138496 Decision Date: 10/14/11 Archive Date: 10/19/11 DOCKET NO. 07-25 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a respiratory disorder, including chronic bronchitis, bronchiectasis, and erythema multiforme (claimed separately as bronchial and lung disabilities). REPRESENTATION The Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A.D. Jackson, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from November 1964 to October 1968. This appeal to the Board of Veterans' Appeals (Board) is from a September 2005 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2010, as support for his claim, the Veteran and his wife testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board, commonly referred to as a Travel Board hearing. And based on additional evidence he had earlier submitted concerning this claim in March 2010, and his and his wife's hearing testimony, the Board remanded this claim to the RO in July 2010 via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. This additional development especially included sending him a Veterans Claims Assistance Act (VCAA) letter in compliance with DVB Circular and M21-1, Part VI, regarding his alleged exposure to asbestos while in service, taking any necessary action to develop any evidence of his potential exposure to asbestos before, during, and since his military service, and having him undergo a VA compensation examination for a medical nexus opinion concerning the etiology of any current respiratory disorder, but particularly in terms of whether any current disorder is attributable to or dates back to his military service, including to his claimed exposure to asbestos while in service and/or frequent diesel and/or jet exhaust fume inhalation while reportedly stationed overseas in Southeast Asia, Japan, and Greenland. FINDING OF FACT Although the Veteran has restrictive lung disease, as well as credible evidence of at least exposure to jet fuel during his military service, the most probative (meaning competent and credible) medical and other evidence of record indicates his restrictive lung disease is unrelated to his military service, including specifically to his claimed exposure to asbestos while in service and/or frequent diesel and/or jet exhaust fume inhalation. CONCLUSION OF LAW The Veteran's restrictive lung disease is not due to disease or injury incurred in or aggravated by his active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION In the interest of clarity, the Board will initially discuss whether this claim has been properly developed for appellate review. The Board will then address this claim on its underlying merits, providing relevant statutes, VA regulations, precedent cases, the relevant factual background, and an analysis of its decision. I. The Duties to Notify and Assist VA has duties to notify and assist the Veteran in substantiating this claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). For a claim, as here, pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA also request that he submit any evidence in his possession that might substantiate his claim. See 73 FR 23353 (Apr. 30, 2008). These VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court may conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case. Id. The Veterans Court held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), since overturned on other grounds in Vazquez-Flores v. Shinseki, 2009 WL 2835434 (Fed.Cir.), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the Veteran, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). In this case, an April 2005 letter was sent prior to initially adjudicating his claim in the September 2005 decision at issue in this appeal, so in the preferred sequence. That letter informed him of the evidence required to substantiate his claim for service connection and of his and VA's respective responsibilities in obtaining this supporting evidence. He also was advised of the downstream disability rating and effective date elements of his claim in a more recent June 2008 letter. And although that additional letter was sent after the initial adjudication of his claim, so not in the preferred sequence, his claim since has been readjudicated in the July 2011 SSOC, so since providing this additional notice letter, in turn meaning the timing defect in the provision of this additional letter, since it did not precede the initial adjudication of the claim, has been rectified ("cured"). See again Mayfield IV and Prickett, supra. In the July 2010 remand, the Board directed the Veteran be provided notice in accordance with a DVB Circular and the M21-1 guidelines regarding his claimed exposure to asbestos while in service, as well as prior to or since his service. The Court has held that VA must analyze a claim for service connection for asbestosis or asbestos-exposure-related disabilities under the appropriate administrative guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). In July 2010, following and as a result of this remand directive, the RO wrote the Veteran instructing him that to substantiate his claim medical information was needed establishing that he had an asbestos-related disease. He was requested to submit the evidence within 30 days; however, he could take longer than 30 days but should try to ensure that it was received within one year from the date of the RO's July 2010 letter. In response, later in July 2010, he initially indicated that he did not have any more evidence to submit. However, on 2 different occasions he requested an additional 30 days to submit additional information or evidence. He eventually submitted an additional statement from R.C., P.A.-C, and J.M., M.D., dated in August 2010, as a supplement to their earlier March 2010 statement. But he failed to provide, identify or cite to any evidence regarding his claimed exposure to asbestos while in service, and VA's duty to assist him with his claim is not a one-way street where he has or has knowledge of putative evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991). As for the duty to assist him with his claim, the RO obtained the Veteran's service treatment records (STRs), private medical records, and VA treatment records. The Board's July 2010 remand of this claim also was to have him undergo a VA compensation examination for a medical nexus opinion concerning the etiology of any current respiratory disorder - but particularly in terms of whether any current disorder is attributable to or dates back to his military service, including to his claimed exposure to asbestos while in service and/or frequent diesel and/or jet exhaust fume inhalation while reportedly stationed overseas in Southeast Asia, Japan, and Greenland.. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). He had this VA compensation examination in November 2010, and the examiner provided this requested opinion regarding causation and discussed the underlying rationale for it. Whenever VA provides an examination for an opinion, it must ensure the examination and opinion are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA opinion obtained in this instance is more than adequate, as it was predicated on review of the pertinent medical and other evidence in the claims file, including assessments of the Veteran's pulmonary status both when entering and leaving service, as well as the type of respiratory-related issues he supposedly had experienced during his service and during the many years since. Accordingly, there was compliance with the Board's remand directives, both in terms of developing his claim for proof of exposure to asbestos while in service and in obtaining this medical nexus opinion regarding the etiology of his respiratory disorder. See e.g., D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, as there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. II. General Statutes and Regulations Governing Claims for Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Diseases initially diagnosed after discharge from service may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). But if chronicity of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service and in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). For the showing of chronic disease in service, there is a required 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." Id. Evidence relating a current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). There is no statute specifically dealing with service connection for asbestos related diseases, nor has the Secretary of VA promulgated any specific regulations. In 1988, however, VA issued a circular on asbestos-related diseases that provided 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, part VI, para. 7.21 (January 31, 1997) ("M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). As already alluded to, VA must analyze the Veteran's claim for service connection for asbestos-related disease under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. The most common disease resulting from exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See M21-1, Part VI, 7.21(a)(1). Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, 7.21(a)(3). Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. See M21-1, Part VI, 7.21. III. Whether Service Connection is Warranted for a Respiratory Disorder The underlying basis of the Veteran's claim is that he was exposed to asbestos while in service and/or frequent diesel and/or jet exhaust fume inhalation while stationed overseas in Southeast Asia, Japan, and Greenland. Those events, he says, led to a chronic and persistent cough. He also alleged in his hearing testimony before the Board that he has been told by his doctors that he has pleural scarring. The Veteran's STRs do not show a diagnosis of a chronic (meaning permanent) respiratory disorder of any sort. When remanding this claim in July 2010, however, the Board raised the possibility that he nonetheless may have experienced at least some relevant symptoms while in service. Of particular note, there were laboratory tests results indicating a positive throat culture for strep throat in December 1966 and April 1967. And in December 1967 there is a treatment report listing symptoms of nasal obstruction and hypertrophic rhonchi. An April 1968 report includes a complaint of sore throat. A June 1968 report indicates sinusitis and possible allergies. The report of his separation examination in September 1968 indicates he had a history of a tonsillectomy at age 4, so during his early childhood, but that his head, nose, sinuses, lungs and chest were normal at the time of that exit evaluation. A chest X-ray also was negative for any pertinent abnormality. His military service had ended in October 1968. It was further noted that VA outpatient treatment records dated in December 2004 showed diagnoses of erythema multiforme, chronic bronchitis, and bronchiectasis. But these records did not address the etiology of these conditions, including specifically in terms of whether they dated back to his military service or were related to his service and specifically to the type of events that he claims occurred while in service. A more recent March 2010 letter from the Veteran's private treating physician and assistant (J.G.M., M.D., and R.R.C., P.A.-C), however, indicated he had been a patient at their practice (Klamath Family Practice) since February 1999 and had experienced increasing respiratory health issues (e.g., increasing shortness of breath with exertion, cold air exposure, and chronic cough) during the 10 or so years since. They noted additionally that they had reviewed his health records from Woodland Hills, California, but that so far his Bell Flower Keizer health records and VA records had not been made available. They then went on to note that he had never had a history of smoking and was in the military, Air Force, from 1964 to 1967, overseas in Southeast Asia, Japan, and Greenland, and reportedly had a positive history for asbestos exposure and frequent diesel and/or jet exhaust fume inhalation. They concluded by explaining that his persistent cough had become more chronic in nature, consistent with chronic bronchitis, and that they were considering chronic inhaled steroid and long acting bronchodilator use. They therefore continued to recommend he utilize VA for continued evaluation to help determine the diagnosis/prognosis of his condition and future medical treatments. While testifying during his April 2010 Travel Board hearing, the Veteran indicated that his military occupational specialty (MOS) was medic and that he consequently frequently treated himself for any respiratory ailments without keeping a medical record or seeking treatment from the physicians on staff. His DD Form 214 confirms that his MOS was medical services specialist. He also testified that he has had a chronic, albeit non-productive, cough since service, and his wife, who said she had known him since service, further attested to this. Even as lay people, the Veteran and his wife are competent to make this proclamation that he has experienced relevant symptoms, i.e., continuity of symptomatology (e.g., a chronic cough), since service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the presence of the claimed disability, even where not corroborated by contemporaneous medical evidence such as treatment records). Their testimony concerning this also must be credible, however, to ultimately have probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Moreover, the probative value of their lay testimony is not determined in isolation, rather, in relation to the other medical and lay evidence in the file. The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In other testimony during his hearing, the Veteran indicated that he already had tried to obtain his records from Bell Flower Keizer (the ones mentioned by J.G.M., M.D., and R.R.C., P.A.-C in their March 2010 letter), including regarding pertinent evaluation and treatment he had received relatively shortly after his discharge from the military. That treatment, he further explained, included a diagnosis of pneumonitis within about 2 years of his discharge from the military. Unfortunately, though, he could not obtain these records and, indeed, indicated they are no longer available, so further attempts to obtain them would be futile. 38 C.F.R. § 3.159(c)(1). He also said he was resultantly out of work for about 6 weeks following that diagnosis, and that one of his VA doctors had since told him there was evidence of pleural scarring on radiology. In light of this recounted history, the Board requested further development of the claim in regards to the Veteran's contention of possible exposure to asbestos while in service. And to this end, he was to be provided a VCAA notice letter in compliance with DVB Circular and M21-1, Part VI, regarding his alleged exposure to asbestos while in the military and to additional consider any potential exposure to asbestos either prior to or since his service. The Board also, as mentioned, requested a VA compensation examination for a medical nexus opinion concerning the etiology of any current respiratory disability, including especially insofar as whether it dates back to his military service or is attributable to his military service, such as from exposure to asbestos or alternatively frequent diesel and/or jet exhaust fume inhalation while reportedly stationed overseas in Southeast Asia, Japan, and Greenland. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). On remand, the Veteran submitted a July 2010 lay statement from a friend who acknowledged knowing him since grade school. This friend also noted the Veteran had had bouts of pneumonia and bronchitis as well as a nagging persistent cough since his discharge from service. As further support for his claim, the Veteran also submitted an additional statement from Dr. J.G.M. and the physician assistant R.R.C. in August 2010, as a supplement to their earlier March 2010 statement. This additional statement is nearly verbatim of their earlier statement, except for slight rewording here and there. The only substantive difference in the two statements is they concluded "[i]t is more likely than not the Veteran's condition was caused by chronic inhalations of jet/turbo prop and other diesel fuels while performing his military duty." Importantly, though, they did not provide any explanation or discussion of the underlying medical rationale for this opinion, which is where most of the probative value of an opinion is derived, not from mere review of the claims file or recitation of the relevant history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This is especially noteworthy in this particular instance because, pursuant to the Board's July 2010 remand directive, the Veteran had a VA compensation examination in November 2010. And the VA compensation examiner that evaluated the Veteran for this medical nexus opinion ultimately concluded unfavorably, disassociating any current respiratory disorder from any injury or disease the Veteran sustained or contracted in service. In discussing the underlying rationale for this unfavorable medical opinion, this VA examiner pointed out that the Veteran's STRs contain no record of treatment for any conditions or symptoms which could have been early manifestations of later chronic pulmonary disease, also pointing out that his separation examination is marked as normal for lung and pulmonary problems. This VA examiner added that the records indicate the Veteran did not begin to be treated for chronic respiratory tract complaints until some 34 years after his discharge. Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). See also 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). And regarding what occurred during service and since, it is only necessary the Veteran have experienced continuous symptoms, not have received continuous treatment, for the Board to conclude there has been continuity of symptomatology since the claimed injury in service since symptoms, not treatment for them, are the essence of continuity of symptomatology under 38 C.F.R. § 3.303(b) and Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). And has also already been acknowledged, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records (STRs, etc.) But the Federal Circuit Court went on to hold in Buchanan that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Moreover, Buchanan is distinguishable where the lay testimony in question concerns an injury that is not alleged to have occurred in combat during service; in this circumstance, for Veteran's providing testimony regarding an event during service, the lack of documentation in service records must be weighed against the Veteran's statements. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The Board therefore may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, though not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. 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). Cf. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, actual evidence that weighs against a party, must not be equated with the absence of substantive evidence). Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). Here, the VA compensation examiner's November 2010 unfavorable medical nexus opinion does not just refer to there not being any objective evidence of treatment during service or for so long after service for this claimed disability, but also importantly to the fact that there is no indication as well that the Veteran even had relevant complaints, i.e., pertinent symptoms, either during service or for so long after his discharge from service. So this examiner did not consider any of the complaints the Veteran had while in service, as reflected in his STRs, as suggestive of any conditions or symptoms that could have been early manifestations of later chronic pulmonary disease. This examiner also considered it significant that the Veteran's military separation examination was benign or unremarkable for any indication of a relevant abnormality. This examiner therefore did not rely exclusively on the absence of any documented treatment while in service or for so long after service as sole reason for concluding against the claim. Instead, he cited there also not being any indication of relevant complaints or symptoms, so concluded the complaints and symptoms the Veteran had while in service, which were highlighted when the Board remanded this claim in July 2010, were not in fact pertinent to any later diagnosed disease. This examiner therefore recognized potentially relevant disease in service, just ultimately concluded that it was not in fact pertinent to any later diagnosed disease. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (wherein the Court determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). In Wray v. Brown, 7 Vet. App. 488, 493 (1995), the Court held that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if, as here, the expert fairly considered the material evidence seemingly supporting the Veteran's position.) In deciding a claim, the Board must analyze the probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons and bases for rejecting or accepting any material evidence. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After considering the evidence both for and against the claim, the Board finds the statements of Dr. J.G.M. and the physician assistant R.R.C. less persuasive in light of the overall record. As mentioned, they did not provide any explanation or discussion of the underlying medical rationale for their collective opinion. The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). They did not point to any clinical data or any other direct evidence supporting their conclusions. In their statements, neither refers to the absence of any complaints or findings suggestive of chronic pulmonary disease either at any time during service for such an extended time after service and its impact on any current diagnosis. They certainly did not discuss the significance of the Veteran's initial treatment for a chronic cough in 1994 after working with demolition of a building and, let alone, the exposure to the dust and debris involved in that profession. Moreover, they did not indicate he has any asbestos-exposure-related disease, which, if they had, could explain this many-year latency between the claimed injury in service and eventual diagnosis. They merely indicated they have treated the Veteran since 1999, so starting some 31 years after his discharge from service. There is no "treating physician rule" requiring the Board to give additional evidentiary weight to their opinion, as his medical care providers. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); and Chisem v. Brown, 4 Vet. App. 169 (1993). Indeed, to the contrary, although the Board may not ignore the opinions of treating physicians, the Board is free to discount the probative value of these physician's statements so long as the Board provides adequate reasons and bases for doing this. Sanden v. Derwinski, 2 Vet. App. 97, 100-01 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). Lastly, although the Veteran and the others, including his wife and friend, have attested to him having a chronic cough since service as a means of establishing the required continuity of symptomatology since service, the Board finds it significant that when reviewing his medical records from as far back as 1984, he does not report any such symptom as a then-current problem, much less an ongoing problem. In fact, the record contains a 1984 private chest X-ray report confirming his chest X-ray results were considered normal and that there were no reported complaints of pulmonary-related problems or issues. This takes on added significance as the report indicates he mentioned previous exposure to asbestos, although it is unclear whether it had occurred during his military service or, instead, during the many years since his discharge. Regardless, with this knowledge of possible previous asbestos exposure, the claimed presence of a persistent cough in all likelihood probably would have triggered the need for more comprehensive diagnostic evaluation and clinical work up. However, there is no indication that any investigative clinical evaluations were ever carried out at that time. This was not done until 1994, some 10 years later, when it was reported that he had a chronic cough - but even then related to the demolition of a building, so not as a result or consequence of anything that had occurred many years earlier during his military service. Still further, although he testified during his April 2010 hearing before the Board that he had been told by his doctors that he had residual pleural scarring, the November 2010 X-ray report makes no reference to such scarring. This inconsistency in his reporting of the onset of his pulmonary and associated symptoms undermines his credibility and, in turn, lessens the probative value of his lay testimony that he experienced relevant respiratory symptoms during service and that he has continued to during the many years since his discharge from service. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence). See also Kahana v. Shinseki, No. 09-3525 (U.S. Vet. App. June 15, 2011) (rejecting broad-sweeping, categorical, rejections of lay evidence and testimony without discussing the underlying reasons and bases). In regards to his claim of exposure to asbestos while in service, the adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether he 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. In this particular case at hand, however, there is no indication of any exposure to asbestos while in service, and the Veteran has not provided any evidence or information suggesting otherwise, including in response to the letter he received on remand concerning this in July and September 2010. He has not indicated any personal or occupational exposure to asbestos either prior to, during, or since his military service. Moreover, the diagnosis he has received has not been associated with said exposure. The chest X-ray did not evidence pleural thickening or pleural plaques or basilar interstitial disease to suggest asbestos exposure. There also was no acute or neoplastic disease detected within his chest. In summary, the evidence falls short in several areas and does not support a grant of service connection for a respiratory disorder. The preponderance of the evidence is against the claim, so there is no reasonable doubt to resolve in his favor, and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001). ORDER The claim for service connection for a respiratory disorder is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs