Citation Nr: 1231955 Decision Date: 09/17/12 Archive Date: 09/24/12 DOCKET NO. 08-34 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a chronic respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and asthma, claimed as a residual of exposure to asbestos. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active duty for training (ADT) from March 1961 to June 1961, and active service from June 1961 to May 1963. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim for further development in June 2011. As discussed below, the development requested has been completed, and the claim is now appropriate for appellate review. FINDINGS OF FACT 1. The Veteran was exposed to asbestos during service. 2. Symptoms of a respiratory disorder were not chronic in service. 3. Symptoms of a respiratory disorder have not been continuous since service separation. 4. The Veteran does not have an asbestos-related pulmonary disorder. 5. The Veteran's current respiratory disorder is not related to any in-service injury or disease, including in-service asbestos exposure. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, to include as due to asbestos exposure, have not been met. 38 U.S.C.A. §§ 1101, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely October 2007 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The letter included questions regarding the nature of the Veteran's alleged exposure to asbestos before, during, and after active service. It also described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, a VA opinion, and the Veteran's statements. A VA opinion was obtained in February 2011 to assist in addressing the question of whether the Veteran has a respiratory disorder that was related to active service. However, the Board found that opinion to be inadequate, as the doctor who provided the opinion did not have access to recent test results, and, as a result, was unable to provide a definitive opinion. Consequently, the Board remanded the claim in June 2011 for a VA examination, which was conducted in July 2011. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the July 2011 VA opinion obtained in this case is adequate as to the question of whether the Veteran has a respiratory disorder that is related to active service. The opinion was predicated on a full reading of the private and VA medical records in the Veteran's claims file, including the results of an August 2007 pulmonary function test that were not available to the doctor who provided the February 2011 opinion, as well as a comprehensive respiratory examination. The VA nexus opinion considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the respiratory disorder claim has been met. 38 C.F.R. § 3.159(c)(4). The Board further finds that there has been substantial compliance with its June 2011 remand directives. As discussed above, the July 2011 VA opinion is adequate to assist in determining whether the Veteran has a respiratory disorder that is related to active service. In addition, updated VA treatment records were associated with the claims file. The Board acknowledges that the specific numerical results of the August 2007 pulmonary function test have not been associated with the claims file as requested by the Board in its June 2011 remand. However, the July 2011 VA examiner refers to and records the numerical results from the August 2007 pulmonary function test in her report. Since the purpose of obtaining those results was to have a physician review and interpret them, the Board finds that there has been substantial compliance with its remand directives, and it is not necessary to associate the August 2007 pulmonary function test with the claims file in order to render a decision on the claim. Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). For the showing of 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). There is no specific statutory guidance with regard to asbestos related claims, nor has the VA Secretary promulgated any specific regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, para. 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1, Part VI. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chapter 2, Section C, Topic 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols provided in the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Subpart ii of M21-1MR Part IV lists some of the major occupations involving exposure to asbestos including mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21- 1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). VA satisfied the above requirements by obtaining the Veteran's service personnel files and providing the Veteran an asbestos questionnaire in its October 2007 letter. It should be noted that the pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that a Veteran was exposed to asbestos in service by reason of having served aboard a ship. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGPREC 4-2000. It should also be noted that for many asbestos related diseases, the latency period varies from ten to forty-five or more years between first exposure and development of disease. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 9(d). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 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). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in 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. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Respiratory Disorder The Veteran contends that he was exposed to asbestos during active service while stationed on the USS Comstock. He avers that he worked in the engine room and engineering supply room, and, specifically, that he worked with steam turbines, steam pumps, steam generators, steam evaporators, and steam boilers. He inventoried, ordered, and stocked all asbestos packing seals for shafts and pumps, and was in a small storage room with multiple types of asbestos-based materials on a daily basis for two years. He contends that he has COPD and/or asthma as a direct result of contact with asbestos-related materials. He did not have any jobs prior to service, as he was in high-school, and following service discharge, he worked as a tool and die maker and manager/supervisor for many years, during which time he states he was not exposed to asbestos. The evidence is at least in equipoise as to whether the Veteran was exposed to asbestos during active service. Although the Veteran's service treatment records are negative for asbestos-related disease or any mention of asbestos exposure, service personnel records reflect that the Veteran's military duties included service on the USS Comstock from August 1961 to May 1963 as an engine maintenance man, which likely would have required him to perform activities exposing him to asbestos during service, including insulation and repair work on the ship. See VA Adjudication Procedure Manual, M21-1, Part VI, para. 7.21. The Veteran is competent to provide evidence about matters of which he has personal knowledge; for example, he is competent to report that he experienced an event during service or that he had certain symptoms. See Falzone v. Brown, 8 Vet. App. 398, 405-406 (1995); Layno, 6 Vet. App. 465. Therefore, the Veteran is competent to state that he was exposed to asbestos during service. The Board also considers the Veteran's statements to be credible, as they are consistent with his personnel records, which reflect that his military occupational specialty would likely have required some exposure to asbestos during service. See VA Adjudication Procedure Manual, M21-1, Part VI, para. 7.21. Thus, resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's statements are credible and sufficient to establish that he was exposed to asbestos during active service. In addition to finding the Veteran had in-service exposure to asbestos, competent evidence is required for a determination that the Veteran has an asbestos-related disability, and that asbestosis or another asbestos-related disorder is etiologically related to asbestos exposure in service. After a review of the evidence, lay and medical, the Board finds that the Veteran does not have an asbestos-related respiratory disorder or other respiratory disorder that is due to any in-service injury or disease, including in-service asbestos exposure. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a respiratory injury or disease in service, and that symptoms of a respiratory disorder were not chronic during active service. At the March 1961 enlistment examination, the Veteran reported a history of whooping cough, but checked "no" next to "asthma," "shortness of breath," and "chronic cough." Moreover, examination of the lungs was marked as "normal," and no current symptoms or signs of a respiratory disorder were noted. The June 1961 examination conducted for extension of active duty was also negative for any respiratory disorders, and there is no documentation of signs, symptoms, complaints, or treatment of a respiratory disorder in the remainder of the service treatment records. Chest x-rays taken in July 1962 and May 1963 (at separation) were negative, and the May 1962 separation examination as also negative for any respiratory problems. If there is no showing of a 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). The Board next finds that the weight of the evidence demonstrates that respiratory disorder symptoms have not been continuous since service separation in May 1963. Following service separation in May 1963, the evidence of record shows no complaints, diagnosis, or treatment for respiratory problems until January 2000, when the Veteran sought treatment for shortness of breath accompanied by nasal congestion and headache. He was diagnosed with acute sinusitis. The Veteran also reported a history of pneumonia in two separate June 2000 treatment notes, but there is no indication of current respiratory symptoms. The first diagnosis of a respiratory disorder of record is in August 2001, when the Veteran reported a persistent cough of four weeks' duration, and the private treating physician assessed possible asthma equivalent. The Veteran contends that he was diagnosed with COPD in 1998 by a private physician, but those records are not available. In any case, the absence of post-service complaints, findings, diagnosis, or treatment for at least 36 years after service is one factor that tends to weigh against a finding of continuous respiratory disorder symptoms after service separation. See Buchanan, 451 F.3d at 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). Other evidence of record showing that respiratory disorder symptoms were not continuous since service separation includes notation of clear lungs in the January 2000 treatment note mentioned above. In addition, the history reported by the Veteran for treatment purposes in August 2001 notably does not include a history of the Veteran having continuous symptoms of a respiratory disorder since service. In March 2004, the Veteran sought treatment for a chronic cough and dyspnea, which he said did not start to occur until March of that year. VA treatment notes from September 2003 indicate the first diagnosis of COPD of record; again, the Veteran did not provide any history of asbestos exposure or continuous respiratory disorder symptoms since service. Rather, he reported exposure to aluminum dust prior to ten years ago, and occupational exposure to vapors from machinery coolants for the last forty years. He also reported that he was hospitalized four times for pneumonia as a child and had two mild cases of pneumonia that did not require hospitalization as an adult. The Veteran denied a history of asthma. Further, the Veteran has stated that he smoked a pack of cigarettes per day for 19 years, until he quit in 1978. With regard to the Veteran's assertions that his respiratory disorder has been continuous since service separation and has worsened over the years (see November 2007 Statement in Support of Claim), the Board finds that, while the Veteran is competent to report the onset of his respiratory disorder, his recent report of continuous symptoms since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and is not credible. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran's statements as to chronic respiratory disorder symptoms in service and continuous respiratory disorder symptoms after service are not credible because they are outweighed by other evidence of record that includes the absence of in-service respiratory disorder findings, complaints, or symptoms; clinical examination at the May 1963 service discharge examination at which examination of the lungs was marked "normal," chest X-ray was noted to be negative, and during which the examiner did not note any history or findings of respiratory problems; and the absence of any post-service history, complaints, symptoms, diagnosis, or treatment of a respiratory disorder for at least 36 years after service until 1998. The Board further finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed respiratory disorder is not related to his active service. There has been little consensus by the Veteran's treating and examining physicians regarding the specific diagnosis of the Veteran's respiratory disorder, and there are conflicting opinions as to whether the current disorder is related to service. A VA treatment note from January 2007 shows diagnoses of emphysema, asthma, chronic bronchitis, otitis, and sinusitis, and as previously mentioned, he has been diagnosed with COPD as well. Other VA treatment notes indicate a diagnosis of reactive airway disease. As mentioned above, the Board obtained a medical opinion from a VA pulmonary critical care physician, Dr. K., in February 2011. Dr. K. reviewed the Veteran's claims file, noting the various diagnoses that have been rendered to describe the Veteran's respiratory condition and that in-service asbestos exposure had been conceded. Dr. K. further noted normal pulmonary function tests in December 2004, and a chest CT in February 2005 that did not identify emphysema, interstitial lung disease, or other findings typical for asbestos exposure. In response to the question of whether the Veteran had a current chronic respiratory disorder, Dr. K. stated that he was unable to definitively answer this question as he did not have sufficient information. He discussed several possible diagnoses, noting that normal pulmonary function tests and normal chest CTs raised the possibility of asthma or a cough variant asthma. However, he did note that recent pulmonary function tests showed "moderate airways obstruction," but he did not have access to those test results. Dr. K. stated that if recent pulmonary function tests were abnormal or no other cause of dyspnea could be determined, then it was likely that the Veteran had a chronic pulmonary disorder. Further, he cited to an article that related asbestos exposure to obstructive physiology, stating that if the Veteran had evidence of a reduced FEV1/FVC ratio on his pulmonary function test, he would conclude that the Veteran suffered from a chronic pulmonary disorder that was at least as likely as not to have its origin during the Veteran's military service as a result of his exposure to asbestos and cigarette smoking. The Veteran was afforded a VA examination in July 2011 because Dr. K. did not have access to the August 2007 pulmonary function test results and was unable to render a definitive opinion. The VA examiner reviewed the claims file, including service treatment records, and conducted an interview and physical examination of the Veteran, including a new pulmonary function test. The examiner opined that the Veteran's cough appeared to be an upper airways process, as the Veteran described worsening when talking too long or loudly, poor vocal volume, and choking when supine, with possible diagnoses of GERD or rhinitis. The examiner further opined that the Veteran's dyspnea had an emotional component to it, as the Veteran stated that it was triggered by stress rather than exertion, and, during the examination, the Veteran had mild hyperventilation using accessory muscles of respiration in the setting of normal oxygen saturations. However, the VA examiner stated that the dyspnea also had an exertional component, which could be more consistent with asthma or COPD. However, the examiner noted that pulmonary function tests had been inconclusive in this regard (she cited to pulmonary function test results from December 2004, August 2007, and July 2011 in her report). She specifically noted that the August 2007 pulmonary function test showed an FEV1/FVC ratio that went from 51 percent to 109 percent after bronchodilator, raising questions about the accuracy of the testing. Moreover, she noted that the postbronchodilator findings were not consistent with a chronic obstructive process, although a reactive process such as asthma could not be excluded. The postbronchodilator results from the July 2011 pulmonary function test were normal. In sum, the July 2011 VA examiner stated there was no evidence based on these tests that the Veteran has a fixed or chronic airway obstruction when using inhalers. Moreover, imaging studies did not show asbestosis. Thus, the VA examiner assessed GERD induced cough, some element of hyperventilation/emotion dyspnea, and possible cough variant asthma. She further stated that no diagnosis of COPD was made, and thus, there was no evidence that the Veteran's in-service asbestos exposure contributed to a diagnosis of COPD. Further, there was no separate evidence that the Veteran had asbestosis, citing to the absence of interstitial lung disease or pleural plaquing, normal lung volumes, and normal DLCO on recent pulmonary function tests. Finally, the examiner stated there was no clear medical association between asthma and asbestos exposure. The Board finds that the July 2011 VA examiner's opinion is more probative than the speculative favorable opinion of Dr. K. Dr. K. essentially opined that if the Veteran had a diagnosis of COPD (which he could not confirm as he did not have the most recent pulmonary function test results), then he would state that the COPD was related to in-service asbestos exposure. As the July 2011 VA examiner explained, the recent pulmonary function tests did not demonstrate an obstructive pathology. Consequently, because Dr. K. relied on an assumption of inaccurate material facts regarding the recent test results in forming his opinion, his opinion is of no probative value. See Reonal, 5 Vet. App. at 461 (holding that an opinion based upon an inaccurate factual premise has no probative value); see also Swan v. Brown, 5 Vet. App. 229, 233 (1993) and Black v. Brown, 5 Vet. App. 177, 180 (1993) (an examination not based on the record, but based on inaccurate facts presented to an examiner, is speculation). The Board observes that while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). As such, as lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis of a specific disability. Furthermore, the question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on this evidence, the Board finds that the weight of the competent evidence demonstrates no relationship between the Veteran's current respiratory disorder and military service, including in-service asbestos exposure, and no credible evidence of continuity of symptomatology of respiratory disorder symptoms either during active service or following service separation. The probative nexus opinion on file weighs against the claim. The July 2011 VA opinion is competent and probative medical evidence because it is factually accurate, and is supported by adequate rationale. The VA examiner was informed of the pertinent evidence, reviewed the claims file, interviewed and examined the Veteran, and fully articulated the opinion. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a respiratory disorder, including as due to asbestos exposure, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a chronic respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and asthma, claimed as a residual of exposure to asbestos, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs