Citation Nr: 1312341 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-49 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a pulmonary disorder, claimed as bilateral interstitial fibrosis, bilateral pleural disease, and asbestosis to include as due to asbestos exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1962 to October 1964. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2009 rating decision of the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO). The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. FINDING OF FACT The Veteran's current pulmonary disorder, to include chronic obstructive pulmonary disease (COPD), is not related to his military service or any incident thereof. CONCLUSION OF LAW A pulmonary disorder was not incurred in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for a pulmonary disorder, to include as due to asbestos exposure. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the effective-date element of the claim, by a letter mailed in August 2008, prior to the initial adjudication of his claim. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes the Veteran's statements, service treatment records, as well as VA and private treatment records. In general, VA's duty to assist includes obtaining records from the Social Security Administration (SSA). See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The record demonstrates that in January 2011, the RO attempted to obtain the Veteran's SSA records. In a subsequent January 2011 report, SSA informed VA that it did not have any of the requested records for the Veteran as there was no record that the Veteran filed for disability benefits. The Veteran was informed of the unavailability of the SSA records in a February 2011 letter from the RO pursuant to 38 C.F.R. § 3.159(e) (2012). Neither the Veteran nor his representative has since submitted or identified any outstanding evidence pertaining to his SSA records which could be obtained to substantiate the claim. Based upon this record, the Board finds that additional attempts to obtain the Veteran's SSA records, if any, would be futile. In July 2008, the Veteran submitted a medical authorization form in order for the RO to obtain private treatment records from R.H., M.D. Pertinently, the Veteran indicated on his authorization form that he was treated by Dr. R.H. for his pulmonary disorder in July 2001. He also submitted a private treatment record from Dr. R.H. dated October 2001 which documents a chest X-ray dated July 2001 noting an impression of bilateral interstitial fibrosis consistent with asbestosis, silicosis and coal workers pneumoconiosis and bilateral pleural disease consistent with asbestos related disease. There were no clinical notes relating to his history or physical examination or pulmonary function tests associated with the evidence. The RO thereafter attempted to obtain all records from Dr. R.H. in October 2008. See a letter from the RO dated October 2008. However, the record does not contain any response from Dr. R.H. as to any treatment records for the Veteran's pulmonary disorder. The RO also informed the Veteran via an October 2008 letter that records were requested from Dr. R.H., but that it is ultimately the Veteran's responsibility to see that VA receives it. Although the Veteran did not respond specifically to the RO's October 2008 letter, he submitted a statement dated May 2012 indicating that he attached a letter from Dr. R.H. pertaining to the pulmonary disorder. The Board notes that this letter has not been associated with the claims folder. The RO subsequently contacted the Veteran and requested that he submit the referenced letter. However, the Veteran responded in August 2012, stating that he submitted all medical records in his possession and did not have any more records to submit. His representative has indicated that the record is incomplete with regard to findings from Dr. R.H. See the Veteran's Informal Hearing Presentation (IHP) dated October 2012. The Board notes that the Court has held that, in some instances, VA has a duty to return for clarification unclear or insufficient private examination reports or to explain why it need not seek such clarification. Savage v. Shinseki, 24 Vet. App. 259, 270 (2011). In Savage, the Court held that private audiological evaluations that did not specify, among other things, the type of speech recognition testing conducted were the type of medical records that VA has a duty to seek to clarify, as the reports in question "reasonably appear[ed] to contain information that is not otherwise in the record and that may potentially help substantiate" a Veteran's claim. Id. Here, however, the Board finds that remand for clarification or additional testing is unnecessary. In this regard, although the Veteran has indicated an absence of private treatment records from Dr. R.H., the Board finds that VA adjudication of the appeal may go forward because the Veteran had an obligation to assist VA in the development of his pulmonary disorder claim. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The Board's decision to not remand the appeal to obtain these potential private treatment records is supported by the fact that the RO made a sufficient attempt to locate the records. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) [VA's duty to assist is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim]. The Veteran was notified by VA several times that he should submit any outstanding information or records from Dr. R.H. and the Veteran has on several occasions submitted the same two documents from Dr. R.H. Moreover, there is no indication that Dr. R.H. conducted a pulmonary function test in conjunction with the July 2001 private treatment report. Additionally, the Veteran indicated in a statement dated July 2008 that he was initially diagnosed with an asbestos-related disorder in 1992 while he was treated at the VA Medical Center in New Orleans, Louisiana. He also specified that he received treatment from the VA Medical Center in New Orleans from 1991 to 1992. The RO thereafter attempted to obtain treatment records from the New Orleans VA Medical Center from 1991 to 1992. In July 2009, the RO was informed by the New Orleans VA Medical Center that they had no records for the Veteran from 1991 to 1992. The RO subsequently determined that the records were unavailable and further attempts to obtain them would be futile. The RO then contacted the Veteran and informed him of the negative response. The Veteran stated that he did not have copies of these records and requested that the RO proceed with adjudication of his claim. Although the absence of VA treatment records is regrettable, the Board finds that VA adjudication of the appeal may go forward without these treatment records as the RO made a sufficient attempt to obtain these records. See Gobber, supra. The Veteran was afforded a VA examination in January 2009 with an addendum obtained in March 2012. The examination report reflects that the examiner interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative. In his November 2009 substantive appeal [VA Form 9], the Veteran declined the option of testifying at a personal hearing. Accordingly, the Board will proceed to a decision. Service connection for a pulmonary disorder Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1MR (M21- 1MR), Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. 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 under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Inhalation of asbestos fibers can produce fibrosis and tumors, most commonly 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 urogenital tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. The applicable section of Manual M21-1MR also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, 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, military equipment, etc. 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 of the potentially long latent period between the time of first exposure and development of disease. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 of VBA Manual M21-1, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, 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. After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. With respect to Hickson element (1), the Veteran has been diagnosed with COPD, as is evidenced by a January 2009 VA examination report as well as VA treatment records. Hickson element (1) has therefore been demonstrated. The Board observes that a private treatment record from Dr. R.H. dated October 2001 documents a chest X-ray dated July 2001 noting an impression of bilateral interstitial fibrosis consistent with asbestosis, silicosis and coal workers pneumoconiosis and bilateral pleural disease consistent with asbestos related disease. An April 2009 VA treatment record notes a past medical history and diagnosis of "asbestos/silicosis" based on the 2001 diagnosis. The Board has the authority to "discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). The Board notes that both the United States Court of Appeals for the Federal Circuit and the Court have specifically rejected the "treating physician rule." See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). Rather, in evaluating the probative value of competent medical opinion evidence, the Court has stated in pertinent part: "The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches...As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator..." See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board finds the opinion of Dr. R.H. and April 2009 VA treatment record to be outweighed, with respect to a current diagnosis of asbestos-related disease, by the highly probative VA examination report. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. The January 2009 VA examiner reviewed the July 2001 findings by Dr. R.H. Moreover, she provided a chest X-ray, pulmonary function test, and a high-resolution CT scan in rendering her diagnosis of COPD. The VA examiner specifically reviewed the July 2001 treatment private treatment record from Dr. R.H. as well as the April 2009 VA treatment record and declined to diagnose the Veteran with an asbestos-related disease. She noted that the CT scan taken in conjunction with the VA examination did not confirm fibrosis, pleural plaques or significant pleural changes that would be diagnostic of asbestos. Although there was noted a small amount of ground glass opacity in the upper lobes, the examiner reported that interstitial changes consistent with asbestosis typically begins in the lower lung zones. She provided a rationale that a high resolution CT scan is more specific and sensitive for the diagnosis of asbestosis as opposed to a plain chest x-ray. She also reported that the April 2009 VA treatment record did not document a diagnosis of asbestosis but rather chronic bronchitis/mild COPD. Indeed, the April 2009 VA treatment record also includes a CT scan which does not document any findings of asbestosis. Accordingly, the Board finds the July 2001 report from Dr. R.H. and the April 2009 VA treatment record indicating a history of asbestos/silicosis to be of outweighed by the more probative VA examination report in determining whether the Veteran currently has an asbestos-related disease. The VA examiner conducted a review of the history, a thorough physical examination with testing and provided an opinion that is supported by a rationale. To the extent that the Veteran asserts that he currently has asbestos-related disease, the Board observes that lay people are competent to testify to visible or otherwise observable symptoms of disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, the Veteran's statements that he has asbestosis relates to an etiological question as to an internal, not directly observable disease such as valvular heart disease, unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. Compare Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis) with Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The lay statements of the Veteran concerning the presence of asbestosis are therefore not competent in this regard, and the Board has placed greater probative weight on the opinion proferred by the VA physician that opined that the Veteran did not have an asbestos-related disease but rather has COPD more likely due to smoking. Accordingly, the Board finds that the Veteran does not currently suffer from an asbestos-related lung disease. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Veteran essentially contends that while serving on board the U.S.S. Saratoga, he was exposed to asbestos as part of his military duties involved taking down damaged asbestos insulation. See, e.g., the Veteran's notice of disagreement dated December 2009. His service personnel records confirm that he served aboard the U.S.S. Saratoga, and that his military duties were airman, aviation electrician's mate, and aviation structural mechanic. Given the nature of the Veteran's duties aboard the U.S.S. Saratoga, the Board recognizes that it is conceivable that the Veteran worked in close proximity to asbestos while serving aboard a naval vessel. The Veteran's service treatment records, however, show no complaints, treatments or diagnoses of any pulmonary problems. Notably, his entrance and separation examination reports reflect no pulmonary abnormalities. The chest x-ray taken at the Veteran's discharge from service was normal. Turning to crucial Hickson element (3), nexus, the competent and probative evidence demonstrates that the Veteran's currently diagnosed pulmonary disorder is unrelated to his military service, to include asbestos exposure. The only competent medical opinion of record concerning the issue of medical nexus is the report of the January 2009 VA examiner. After consideration of the Veteran's medical history, examination of the Veteran, and rendering a diagnosis of COPD, the VA examiner concluded in a March 2012 addendum that the Veteran's pulmonary disorder is "less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner's rationale for her conclusion was based on a review of the Veteran's medical history, which included the Veteran's reported in-service asbestos exposure as well as his service separation examination which documented a normal chest X-ray and his longstanding history of smoking. She also noted the January 2009 chest X-ray which documented diffuse chronic pulmonary changes (fibrosis and pleural thickening) consistent with chronic inhalation of an irritant such as tobacco smoke. The high resolution CT chest scan dated January 2009 revealed a small amount of groundglass opacity in the upper lobes bilaterally and a very slight peripheral septal thickening. The CT scan did not confirm fibrosis, pleural plaques or significant pleural changes that would be diagnostic of asbestos. Although there was noted a small amount of ground glass opacity in the upper lobes, she noted that interstitial changes consistent with asbestosis typically begins in the lower lung zones. She further noted the April 2009 VA treatment record, the pulmonary workup which did not reveal asbestosis, and the current diagnosis of COPD. The Veteran also had a bronchoscopy with findings of a small ulcerative lesion which had healed on a repeat bronchoscopy in June 2009. She therefore concluded that there is no evidence of any respiratory disorder related to asbestos exposure. On the contrary, she opined that the Veteran has mild COPD which is more likely as not due to his smoking history. The January 2009 VA examination report with March 2012 addendum were based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [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"]. Additionally, the VA examiner's opinion was consistent with the Veteran's medical history, which is absent any symptomatology of a pulmonary disorder for several years after service. The Veteran has not submitted any competent and probative medical opinion to contradict the VA examiner's opinion. As was explained in the VCAA section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is the claimant's responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including shortness of breath and coughing), has presented no clinical evidence of a nexus between his pulmonary disorder and his military service, to include asbestos exposure. As discussed above, the Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to a particular disability. Furthermore, the Veteran is not competent to opine on matters such as the etiology of his current pulmonary disorder. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a medical nexus between his pulmonary disorder and his military service, to include asbestos exposure, to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of a medical nexus. Lastly, to the extent that the Veteran has asserted that he has had a pulmonary disorder continually since service, the Board notes that it is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection. However, the Federal Circuit has held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). COPD is not such a listed disease entity. Therefore, establishment of service connection on that basis is no warranted. Accordingly, Hickson element (3), nexus, is not met, and the Veteran's claim fails on this basis. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a pulmonary disorder, claimed as bilateral interstitial fibrosis, bilateral pleural disease, and asbestosis to include as due to asbestos exposure. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for a pulmonary disorder, claimed as bilateral interstitial fibrosis, bilateral pleural disease, and asbestosis to include as due to asbestos exposure is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs