Citation Nr: 1305173 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 10-22 679A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for residuals of a cold injury. 2. Entitlement to service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disorder (COPD), to include as a result of asbestos exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active military service from October 1953 to October 1956 with the U.S. Army and from April 1958 to January 1959 with the U.S. Navy. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the U.S. Department of Veterans' Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, denied the benefits sought on appeal. The Veteran filed a Notice of Disagreement (NOD) in November 2009. The RO issued a Statement of the Case (SOC) in May 2010. In May 2010, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of these issues. In May 2012, the Board remanded this appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. The case has now been returned to the Board for appellate disposition. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's current peripheral neuropathy, gout, and venous insufficiency of the lower extremities (claimed as residuals of a cold injury) are not shown to be causally or etiologically related to his active military service. 2. The preponderance of the evidence is against a finding that the Veteran currently has asbestosis. 3. The Veteran's current respiratory disorder, to include COPD, chronic heart failure (CHF), and sleep apnea, is not shown to be causally or etiologically related to his active military service, to include as due to asbestos exposure. CONCLUSIONS OF LAW 1. Service connection for residuals of a cold injury, to include peripheral neuropathy, gout, and venous insufficiency of the lower extremities, is not established. 38 U.S.C.A. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.304, 3.326(a) (2012). 2. Service connection for a respiratory disorder, to include COPD, CHF, and sleep apnea, to include as a result of asbestos exposure, is not established. 38 U.S.C.A. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.304, 3.326(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. VA's Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a 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, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in March 2009, July 2009, November 2009, and May 2012 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The March 2009 and July 2009 letters also addressed the requirements and necessary information for establishing in-service asbestos exposure. The March 2009, July 2009, and November 2009 letters also provided the Veteran with information concerning the evaluations and effective dates that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The March 2009 and July 2009 letters met all of the necessary requirements, and were provided prior to the initial RO adjudication of his claims in the October 2009 rating decision. Accordingly, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. His STRs, personnel records, Social Security Administration (SSA) disability benefits records, and post-service VA and private treatment records have been obtained. In an October 2009 statement, the Veteran listed additional private medical providers. In a November 2009 letter to the Veteran, the RO stated that the Veteran needed to return a VA Form 21-4142 for each medical provider, so that the RO could obtain the necessary authorizations to obtain the records. The Veteran did not respond to this letter. A similar letter was sent by the AMC in May 2012, and again, the Veteran did not respond. Therefore, the Board finds that it does not have notice of any additional relevant evidence that is available but has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran participated in VA examinations in August 2012, the results of which have been included in the claims file for review. The examinations involved a review of the claims file, a thorough examination of the Veteran, and opinions that were supported by sufficient rationale. Therefore, the Board finds that the examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claims. The Board is also satisfied as to substantial compliance with its May 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included providing the Veteran with the appropriate release form (VA Form 21-4142) to obtain his confidential records from his private physicians. This action was accomplished in a May 2012 letter from the AMC. The Veteran, however, did not return the release forms, and all other evidence that he has indicated as relevant to his claims has been obtained. Additionally, the remand included developing evidence as to whether the Veteran was exposed to asbestos during his naval ship service. The AMC contacted the U.S. Department of the Navy, who determined that that the ship that was Veteran was stationed on during his active military service did not have documented exposure to asbestos. The AMC also associated Department of the Navy Job Titles and Probability of Exposure Table with the claims file. The remand also included scheduling the Veteran for additional VA examinations, which were obtained in August 2012. Finally, the remand included readjudicating the claims, which was accomplished in the November 2012 Supplemental Statement of the Case (SSOC). For these reasons, the Board finds that there has been substantial compliance with its remand directives. Id. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Service Connection A. General Regulations and Statutes To establish service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Service connection may also be awarded for a "chronic" disorder when: (1) a chronic disorder manifests itself and is identified as such during the active military service (or within the presumption period under 38 C.F.R. § 3.307, and the Veteran presently has the same disorder); or (2) a disorder manifests itself during the active military service (or during the presumptive period), but is not identified until later, there is a showing of continuity of symptomatology after the military discharge, and medical evidence relates the symptomatology to the Veteran's present disorder. 38 C.F.R. § 3.303; see Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). For the showing of chronic disease during the active military 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." 38 C.F.R. § 3.303(b). If a chronic disease is shown during the active military service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). However, continuity of symptoms is required where a disorder is noted during the active military service, but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). B. Cold Injury Claim The Veteran seeks service connection for residuals of a cold injury, specifically when he was exposed to extremely cold temperatures aboard a U.S. naval ship. See March 2009 statement from the Veteran. As noted above, the first element of service connection requires medical evidence of a current disorder. Here, a current diagnosis has been established. At the Veteran's recent August 2012 examination, he stated that the residuals of a cold injury pertained to his legs, feet, and toes. In this regard, at the August 2012 VA examination, the VA examiner diagnosed the Veteran with gout, peripheral neuropathy, and venous insufficiency. The current treatment records do not contain any other relevant diagnoses. Thus, the Veteran has satisfied the first element of service connection. As stated above, the second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the Veteran's STRs are silent for documentation of the disorder. The records reveal no complaints or treatment related to the Veteran's legs, feet, or toes, or documentation of a cold injury. At his military separation examination, his legs, feet, and toes were normal. Thus, the STRs do not show that the Veteran developed a chronic disorder during his active military service, as there is no documentation of any pertinent injury or illness. As support for these findings, at his August 2012 VA examination, the Veteran told the VA examiner that he was not treated for any cold-related injury during his active military service. Post-service, the Veteran does not report continuous symptomatology since his active military service. The evidence of record documents that the Veteran was first treated post-service in October 1990 by a private physician for calluses on his right foot. The foot was treated, and the next pertinent documented treatment occurred in March 1992 when the Veteran was treated by a private physician for pain in his legs. At that appointment, the Veteran did not report leg pain due to an in-service cold weather injury. In a subsequent July 1992 private treatment visit, the Veteran stated that his leg pain was due to a March 1992 work-related injury. At his August 2012 VA examination, the Veteran stated that he began seeing a podiatrist for his foot pain about three years ago. This statement is supported by a May 2009 medical opinion from the Veteran's podiatrist, who indicated that he had been treating the Veteran for the past few months. The Veteran left the military service in 1959 and did not complain of symptoms until over thirty years later. This intervening lapse of so many years between his separation from military service and the first documented manifestation of this claimed disorder is probative evidence against his claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service and resulted in any chronic or persistent disorder). Regarding the third element of service connection (a nexus between the current disorder and the in-service disease or injury), the claims file currently contains positive and negative medical nexus opinions. As for the positive medical nexus evidence, the Veteran's private treating podiatrist submitted a medical opinion in May 2009. Dr. G.B.K. stated that he was asked by the Veteran to write a letter regarding his pain in his feet and legs. The physician indicated that he had been treating the Veteran for hyperuricemia with repeated gouty attacks in his feet for the last several months. Dr. G.B.K. reported that the Veteran had problems with aching pain, venous insufficiency, hyperpigmentation, and swelling of the feet and legs. Dr. G.B.K. concluded that these symptoms "may well be related to the cold weather exposure he [the Veteran] experienced while under military service." This opinion was based on the Veteran's reported history, and not based on a review of the Veteran's claims file. No rationale was provided for this medical opinion. As for the negative medical nexus evidence, the Veteran was afforded a VA examination in August 2012 to determine the nature and etiology of any current residuals of a cold injury. At the Veteran's recent August 2012 examination, he stated that the residuals of a cold injury pertained to his legs, feet, and toes. In this regard, at the August 2012 VA examination, the VA examiner diagnosed the Veteran with gout, peripheral neuropathy, and venous insufficiency. Following a review of the claims file, the August 2012 VA examiner determined that the Veteran's peripheral neuropathy (claimed as foot pain) was less likely than not related to an in-service injury, and more likely than not related to his non-service-connected Type II diabetes mellitus. The examiner reasoned that the Veteran has long-standing Type II diabetes mellitus that was diagnosed 15 years ago. The examiner noted that there were no in-service records of foot pain or injury during the Veteran's active military service. There were also no in-service records of any cold-related injury during the Veteran's active military service. The examiner reasoned that there was a long period of time between the Veteran's claimed cold weather injury and the post-service medical visits for his feet. The Veteran told the examiner that he did not see a podiatrist until two or three years ago. Therefore, the VA examiner provided a negative medical nexus opinion between the Veteran's peripheral neuropathy (claimed as painful feet) and his claimed in-service cold weather injury, finding that "one would [have to] resort to mere speculation to attempt to relate his [the Veteran's] foot pain to a nexus of cold injury." Regarding the Veteran's gout (claimed as foot pain and leg pain), the August 2012 VA examiner determined that this disorder was less likely than not related to an in-service injury or illness. The examiner reasoned that there were no in-service records of painful feet and legs or gout during the Veteran's active military service. The examiner also noted that there was a long period of time between the Veteran's claimed cold weather injury and the post-service medical visits for his feet. The Veteran told the examiner that he did not see a podiatrist until two or three years ago. Therefore, the VA examiner provided a negative medical nexus opinion between the Veteran's gout (claimed as foot pain and leg pain) and his claimed in-service cold weather injury, finding that "one would [have to] resort to mere speculation to attempt to relate his [the Veteran's] foot and leg pain to a nexus of cold injury." Regarding the Veteran's venous insufficiency (claimed as hyperpigmentation in the lower extremities), the August 2012 VA examiner determined that this disorder was more likely due to age, obesity, and medical disorders, rather than an in-service injury or illness. The examiner stated that there was a possibility that hyperpigmentation "could be related" to a cold injury; however, the examiner pointed out that there was no documentation in the Veteran's STRs of a cold injury. The examiner reasoned that Veteran did not report any injury while he was in service or any injury after his military service ended. Therefore, in summary, the examiner provided a negative nexus for the Veteran's venous insufficiency (claimed as hyperpigmentation in the lower extremities). In reviewing these medical opinions, the Board finds the negative evidence outweighs the positive on the issue of direct service connection. It is to be noted that the Board is not free to substitute its own judgment for as such a medical expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, the Board is required to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Regarding the private statement, the Board finds that by interjecting "may well be," the physician's statement is not definitive regarding the causal connection between the Veteran's claimed cold injury residuals and his active military service. While an absolutely accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology or obvious etiology, a doctor's opinion phrased in terms tantamount to "may" or "could" be related to service is an insufficient basis for an award of service connection because this is for all intents and purposes just like saying the disorder in question just as well "may or may not"" be related to the military service. Obert v. Brown, 5 Vet. App. 30 (1993). See, too, Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Further, the private physician's opinion relied on a history as related by the Veteran which, based upon the limited information in the statement, was not complete and did not include reference to his post-service disabilities, to include Type II diabetes mellitus and its effects on the Veteran's legs, feet, and toes. This lack of discussion is noteworthy as it shows that the Veteran either failed to fully report his medical history or that the doctor failed to fully consider the Veteran's medical history in his assessment of the cause of the Veteran's pain. While the Veteran may be competent to report his history of symptoms, it appears that in this medical opinion, his history was not accurately reflected. The physician did not review the medical evidence in the claims folder and did not consider the entire medical history of the Veteran in forming his medical opinion. The opinion was also not accompanied by any rationale. A medical examination report must contain not only clear conclusions, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the Board finds the private medical opinion to be of low probative value. In contrast, the VA examiner who conducted the VA examination and authored the accompanying report accurately and thoroughly characterized the evidence of record and conducted a comprehensive examination of the Veteran's legs, feet, and toes. His report of the Veteran's medical history and his clinical findings are consistent with the entire body of medical evidence of record. The examiner provided a detailed explanation as to why the Veteran's gout, peripheral neuropathy, and venous insufficiency of the lower extremities are not consistent with a cold weather injury. There is no basis on which to find that the report is incomplete or insufficient in any way. Accordingly, the Board finds that the probative value of the VA examination report is greater than the cursory conclusions of the private medical opinion. As the evidence is not in equipoise, service connection is not warranted. In reaching this decision, the Board has considered the Veteran's arguments in support of his claim. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Id. Although the Veteran is competent to report that he was exposed to extremely cold temperatures during his active military service, which resulted in residuals of a cold injury, the Board must still weigh his lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 (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")). In making this credibility determination, the Board does not find the Veteran's statements concerning the etiology of his current gout, peripheral neuropathy, and venous insufficiency to be credible, since his STRs make no reference to any of these disorders or to a cold-related injury. Further, the Veteran first sought treatment for his feet and legs over thirty years after his military discharge. At those initial post-service treatment visits, the Veteran did not attribute his leg and feet pain to his active military service, to include a cold-related injury; instead, the Veteran attributed his current symptoms to a work-related injury. The Veteran did not attribute his current symptoms to his active military service until he first filed his service connection claim in 2009. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); see also 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). It is important to point out that the Board does not find that the Veteran's lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson, 581 F.3d at 1313, quoting Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the Veteran's statements are found to be incredible because they are inconsistent with the evidence of record, which fails to show a pertinent injury or illness during his active military service, and which fails to show relevant symptoms until over three decades after his separation from the active duty in 1959. For the reasons set forth above, the Board finds that the Veteran's lay statements that his symptoms have been present since his active military service are not credible. Therefore, these statements do not warrant a grant of service connection or a determination that further development of the medical evidence is required. All other evidence of record, aside from the Veteran's statements in support of this current claim, is unfavorable to the claim for service connection for residuals of a cold injury. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the Veteran's claim of entitlement to service connection for residuals of a cold injury, to include peripheral neuropathy, gout, and venous insufficiency of the lower extremities, is not warranted. C. Respiratory Disorder Claim The Veteran claims that his respiratory disorder, to include COPD, is due to his active military service, to include as the result of in-service exposure to asbestos. Specifically, in an October 2009 statement, the Veteran argued that he was exposed to asbestos during his U.S. Navy service (1958-1959) from airplane fumes, ship fumes, and diesel fumes. The Veteran stated that he wore asbestos gloves from his hands to his shoulders while at the battle station in 1958. The Board notes there is no specific statutory guidance with regard to asbestos- related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities purportedly resulting from asbestos exposure. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze a Veteran's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). The Manual also lists some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, 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 products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can lead to a non-exclusive list of asbestos related diseases/abnormalities: fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). The extent and duration of exposure to asbestos is not a factor for consideration. Id. at Subsection (d). 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 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. Id. at Subsection (h); see also VAOPGCPREC 4-2000 (Apr. 13, 2000); 65 Fed. Reg. 33,422 (2000). 1. Asbestosis As noted above, the first element of service connection requires medical evidence of a current disorder. Here, a current diagnosis of asbestosis has not been established. Specifically, the August 2012 VA examiner, following a physical examination of the Veteran and a chest X-ray, did not diagnose the Veteran with asbestosis. Instead, the VA examiner diagnosed the Veteran with COPD and sleep apnea. The Veteran was also provided chest X-rays in January 1991 and May 1993 by his private physician, and in March 2001, May 2005, October 2005, February 2007, February 2009, April 2009, May 2009, and January 2010 by his VA physician. None of these chest X-rays provided findings consistent with asbestosis. The VA and private treatment records do not provide a current asbestosis diagnosis. Additionally, the Veteran has not provided any evidence to show that he currently has a diagnosis of asbestosis. Without this required proof of a current disorder, the claim for asbestosis necessarily fails. See Degmetich v. Brown, 8 Vet. App. 208 (1995), 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has a disorder existing on the date of application, not for a past disorder); see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disorder is satisfied when the claimant has disorder at the time a claim for VA disability compensation is filed or during the pendency of the claim). In reaching this decision the Board has considered the Veteran's arguments in support of his assertions that his asbestosis is related to his active military service. However, the resolution of an issue that involves medical knowledge, such as the diagnosis of a disorder, requires professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of the disorder or symptoms of the disorder subject to lay observation. See Jandreau, 492 F.3d at 1372; Buchanan, 451 F.3d at 1331 (addressing lay evidence as potentially competent to support presence of disorder even where not corroborated by contemporaneous medical evidence). However, asbestosis requires specialized training for a determination as to diagnosis, and is therefore not susceptible of lay opinions on etiology. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim and that doctrine is not applicable. Gilbert, 1 Vet. App. at 49. Thus, the Veteran's claim of entitlement to service connection for asbestosis, to include as due to in-service asbestos exposure, is not warranted. 2. Remaining Pertinent Diagnoses As noted above, the first element of service connection requires medical evidence of a current disorder. Here, a current diagnosis has been established. As previously stated, on VA examination in August 2012, the VA examiner diagnosed the Veteran's complaints of breathing problems as COPD, CHF, and sleep apnea. The treatment records do not contain any other pertinent diagnoses. Thus, the Veteran has satisfied the first element of service connection. As stated above, the second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the Veteran's STRs are silent for documentation of the disorder. The records reveal no complaints or treatment related to the Veteran's breathing or to a respiratory disorder. At his military separation examination, his respiratory system was normal. However, the Veteran does not assert that his breathing problems developed during his active military service. Instead, the Veteran asserts that his current respiratory diagnoses developed after his military discharge and are due to his in-service asbestos exposure. See August 2012 VA examination and October 2009 statement by the Veteran. In attempting to verify whether the Veteran was actually exposed to asbestos during his active military service with the U.S. Navy, the AMC contacted the U.S. Department of the Navy. In a May 2012 statement, following a search of the NAVALSO database, the U.S. Navy determined that that the U.S.S. Pawcatuck, the ship that was Veteran was stationed on during his active military service, did not have any records in the database. Thus, the U.S. Navy concluded that it could not find any records to verify asbestos exposure for the Veteran. The AMC also associated the Department of the Navy Job Titles and Probability of Exposure Table with the claims file. During his U.S. Navy military service, the Veteran's Military Occupational Specialty (MOS) was Boatswain's Mate (BM 0100). According to the Table, as a Boatswain's Mate, the Veteran's probability of exposure to asbestos was minimal. The Veteran has not provided any evidence to contradict these findings. Post-service, the Veteran does not report continuous symptomatology since his active military service. The evidence of record documents that the Veteran was first treated post-service in 1992 by a private physician for COPD. At that appointment, the Veteran did not report that his symptoms were due to in-service asbestos exposure. However, at that appointment, the private physician did observe the Veteran's "cigarette abuse." The Veteran left the military service in 1959 and did not complain of symptoms until over thirty years later. This intervening lapse of so many years between his separation from military service and the first documented manifestation of this claimed disorder is probative evidence against his claim. See Maxson, 230 F.3d at 1330. Regarding the third element of service connection (medical evidence of a nexus between the current disorder and the in-service disease or injury), the only medical nexus opinions of record are negative. On VA examination in August 2012, the VA examiner diagnosed the Veteran with COPD, CHF, and sleep apnea, when asked to determine the nature of the Veteran's current breathing problems. Following a review of the claims file and a physical examination of the Veteran, the examiner determined that it was less likely than not that these disorders were related to an in-service illness or injury. The examiner reasoned that there was no documentation of an in-service breathing, cardiovascular, or respiratory problem in the Veteran's STRs. The examiner also noted that the Veteran had a 15 year history of tobacco smoking (as described at the examination). The examiner found that this history of smoking was most likely the culprit for the Veteran's present COPD. Additionally, the examiner added that, although the Veteran reported exposure to asbestos while in the Navy, there was no evidence of asbestosis on the Veteran's chest X-ray taken at the examination. Thus, in summary, the examiner provided a negative nexus opinion for the Veteran's current respiratory disorders. The VA examiner clearly reviewed the STRs and other evidence in the claims folder. He provided an opinion that is supported by and consistent with the evidence of record. He also gave an alternative theory to address the etiology of the respiratory disorder - namely, smoking. There is no positive evidence to the contrary of this opinion in the claims file. The treatment records do not provide contrary evidence. For all of these reasons, service connection is not warranted. In reaching this decision, the Board has considered the Veteran's arguments in support of his claim. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service. See Washington, 19 Vet. App. at 368. The Federal Circuit has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan, 451 F.3d at 1335. In Davidson, 581 F.3d at 1313, and in Jandreau, 492 F.3d at 1372, the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Id. The Board notes that the Veteran is competent to report that he experienced breathing problems during his active military service. However, this is not what the Veteran alleges. Instead, the Veteran argues that his breathing problems began after his active military service and are due to his in-service asbestos exposure. In this regard, the Veteran is not competent to report that he was exposed to asbestos during his active military service and he is not competent to report that asbestos caused his current respiratory disorders. As a lay person, it is not shown that he possesses the medical expertise to provide such an opinion. The resolution of an issue that involves medical knowledge, such as the etiology of a disorder, requires professional evidence. See Espiritu, 2 Vet. App. at 495 (1992). It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of the disorder or symptoms of the disorder subject to lay observation. See Jandreau, 492 F.3d at 1372; Buchanan, 451 F.3d at 1331. However, a etiology based on asbestos exposure requires specialized training for a determination as to diagnosis, and is therefore not susceptible of lay opinions on etiology. The VA examiner considered the Veteran's lay assertions in forming his medical opinion, but ultimately found that the Veteran's current respiratory disorders were not related to his active military service, to include in-service asbestos exposure. Thus, as previously stated, the medical evidence of record is only against the Veteran's claim. For the reasons set forth above, the Board finds that the Veteran's lay statements that his symptoms have been present since his active military service are not credible. Therefore, these statements do not warrant a grant of service connection or a determination that further development of the medical evidence is required. All other evidence of record, aside from the Veteran's statements in support of this current claim, is unfavorable to the claim for service connection for a respiratory disorder, to include COPD, CHF, and sleep apnea, and to include as a result of asbestos exposure. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim and that doctrine is not applicable. Gilbert, 1 Vet. App. at 49. Thus, the Veteran's claim of entitlement to service connection for a respiratory disorder, to include COPD, CHF, and sleep apnea, and to include as a result of asbestos exposure, is not warranted. (CONTINUED ON THE NEXT PAGE) ORDER The claim for service connection for residuals of a cold injury, to include peripheral neuropathy, gout, and venous insufficiency of the lower extremities, is denied. The claim for service connection for a respiratory disorder, to include COPD, CHF, and sleep apnea, and to include as a result of asbestos exposure, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs