Citation Nr: 1314756 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-03 369A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a respiratory disorder other than emphysema, including chronic obstructive pulmonary disease (COPD) and asbestosis, and to include as secondary to in-service exposure to Agent Orange and asbestos. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active military service from March 1964 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the claim of entitlement to service connection for COPD. In April 2011 and September 2012, the Board remanded the appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The Veteran's May 2009 Substantive Appeal (on VA Form 9) raised a broad claim of entitlement to service connection for a respiratory disorder. Previously, in an unappealed February 2007 rating decision, the RO denied entitlement to service connection for emphysema. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue is as stated on the title page. The Veteran's Virtual VA paperless claims file has also been reviewed in preparing this decision. The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for emphysema has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 preponderance of the evidence is against a finding that the Veteran currently has asbestosis. 2. The evidence of record establishes that the Veteran served on land in the Republic of Vietnam during the Vietnam Era, and thus he is presumed to have been exposed to herbicides during his active military service. 3. The Veteran's reports of asbestos exposure during his active military service are presumed credible based on his military record. 4. The Veteran's current COPD is not shown to be causally or etiologically related to his active military service, to include as due to his in-service Agent Orange and asbestos. CONCLUSION OF LAW Service connection for a respiratory disorder other than emphysema, including COPD and asbestosis, and to include as secondary to his in-service exposure to Agent Orange and asbestos, is not established. 38 U.S.C.A. §§ 1110, 1113, 1116, 1131, 1137, 1154 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 claim. 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). 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 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). A letter from the RO dated in July 2008 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, 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 July 2008 letter also provided the Veteran with information concerning establishing a service connection claim based on in-service asbestos exposure. The letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided prior to the initial RO adjudication of his claim in the October 2008 rating decision. Following the initial RO adjudication of the Veteran's claim, the April 2009 Statement of the Case (SOC) informed the Veteran of the requirements for establishing service connection through the use of the herbicide presumption. After the Veteran was provided this information, his claim was then readjudicated in the December 2009, May 2012, and March 2013 Supplemental SOCs (SSOCs) based on any additional evidence received in response to that additional notice. This is important to point out because if there was no VCAA notice provided prior to the initial adjudication of the claim, or for whatever reason the notice provided was inadequate or incomplete, this timing error may be effectively "cured" by providing any necessary notice and then going back and readjudicating the claim, including in a SOC or SSOC, such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of his claim. In other words, this timing error in the provision of the notice is ultimately inconsequential and, therefore, at most nonprejudicial, i.e., harmless error. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 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 claim. 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 issue has been obtained. The Veteran's STRs, personnel records, Social Security Administration (SSA) disability benefits records, and post-service VA and private treatment records have been obtained. The Board 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 a VA examination in August 2011, the results of which have been included in the claims file for review. The examination involved a review of the claims file, a thorough examination of the Veteran, and an opinion that was supported by sufficient rationale. A VA addendum medical opinion was also obtained in November 2012, the results of which have been included in the claims file for review. The addendum opinion also involved a review of the claims file and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the VA examination and medical opinions 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 claim. The Board is also satisfied as to substantial compliance with its April 2011 and September 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included obtaining the Veteran's recent VA and private treatment records, which were obtained and associated with the claims file. This also included obtaining the Veteran's SSA disability benefits records, which were obtained and associated with the claims file. Additionally, the remand directed the AMC to provide the Veteran with a VA examination and medical opinion. The Veteran was provided the VA examination in August 2011, and a VA addendum medical opinion was obtained in November 2012. Finally, as directed by the remand, the AMC readjudicated the Veteran's claim in the May 2012 and March 2013 SSOCs. Thus, 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 claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Service Connection The Veteran seeks service connection for a respiratory disorder other than emphysema, including COPD, and to include as secondary to in-service exposure to Agent Orange and asbestos. 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). 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 disorder 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). Veterans who, during their active military service, served in the Republic of Vietnam (Vietnam) during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307. "Service in the Republic of Vietnam" includes military service in the waters offshore and military service in other locations if the conditions of the military service involved duty or visitation in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). It is established law that a Veteran must have set foot on the land mass of Vietnam, or have been present in the inland waterways of that country during the statutory period (so-called "brown water" naval activity) in order to be considered to have had qualifying military service in Vietnam and, in turn, presumed exposure to herbicides. See Haas, 525 F.3d 1168. If a Veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and sub acute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the Veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1112 ; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e), in part, to add Parkinson's disease and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. See 75 Fed. Reg. 53202 -16 (Aug. 31, 2010). Specifically, the Secretary of VA has determined that a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted for enumerated other disorders, and any other disorder for which the VA Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 75 Fed. Reg. 32,540 -32,548 (2010). In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, it must be shown that the Veteran served in Vietnam on land during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must have been diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e), or a nexus between the currently diagnosed disorder and the active military service must otherwise be established. See Brock v. Brown, 10 Vet. App. 155, 162 (1997). Effective February 24, 2011, VA is amending its adjudication regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea. Specifically, VA added a new paragraph (a)(6)(iv) to 38 C.F.R. § 3.307, which states that a Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. Although the Veteran's personnel records document that he served on land on Korea during his active military service, this presumption does not apply to the Veteran since the Veteran's active military service ended in February 1967, prior to the dates listed in the statute. Thus, the Board will focus on Vietnam in addressing the herbicide presumption below. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumptions are not the sole method for showing causation. In service connection claims, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 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 November 2012 VA examiner, following a physical examination of the Veteran in August 2011 and a chest X-ray in January 2011, did not diagnose the Veteran with asbestosis. Instead, the VA examiner diagnosed the Veteran with COPD. In the November 2012 medical opinion, the examiner reviewed the VA and private treatment records, to include the chest X-rays, and found that this evidence did not provide findings consistent with a clinical diagnosis of asbestosis. Instead, the examiner found that the evidence of record supports a diagnosis of COPD. The VA and private treatment records also 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. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis of asbestosis, this issue falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (laypersons not competent to diagnose cancer). As a layperson, it is not shown that he possesses the medical expertise to provide such an opinion. Asbestosis requires specialized training for a determination as to diagnosis, and the physicians who have examined the Veteran have not diagnosed him with asbestosis. 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 asbestosis, to include as due to in-service asbestos exposure, is not warranted. Regarding the remaining respiratory disorder diagnoses, as noted above, the first element of service connection requires medical evidence of a current disorder. Here, a current diagnosis has been established. On VA examination in August 2011, the VA examiner diagnosed the Veteran's complaints of breathing problems as COPD. The VA and private 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 demonstrate that he was treated for intermittent respiratory ailments during his active military service. According to an April 1965 in-service treatment record, the Veteran was suffering from an acute upper respiratory infection. A subsequent chest X-ray in July 1965, however, was interpreted to be normal. The Veteran was also noted to be suffering from an upper respiratory infection in February 1966, but again, his lungs were found to be clear. In April 1966, the Veteran was seen for coughing and sore throat. No diagnosis was provided. The Veteran was again noted to be suffering from an upper respiratory infection in July 1966. In December 1966, he was treated for symptoms of a chest cold. He was again treated for a cough in January 1967, but his lungs were again found to be clear. The Veteran's February 1967 military separation examination did not document any pertinent complaints or diagnoses. The Veteran's active military service ended in February 1967. Thus, the Veteran has satisfied the second element of service connection of an in-service incurrence. Additionally, regarding in-service asbestos exposure, the Veteran reported in his May 2009 Substantive Appeal that he was exposed to asbestos from the pipes and dust, while he was aboard transport ships going to Vietnam and Korea. In this regard, the Veteran's personnel records document that he served on land in Vietnam from November 1966 to February 1967. His personnel records also report that he served on land in Korea during his active military service. Furthermore, the Veteran's DD-214 Form shows that the Veteran received the Combat Infantryman Badge (CIB) during his active military service. See 38 U.S.C.A. § 1154. Thus, the Board finds the Veteran's reports of asbestos exposure during his active military service to be presumed credible based on his military record. Regarding in-service herbicide exposure, the Veteran's personnel records document that he served on land in Vietnam from November 1966 to February 1967, which was during the Vietnam era. As such, his exposure to Agent Orange is conceded. 38 U.S.C.A. § 1116(f). However, the herbicide presumption does not apply to the Veteran's claim because a respiratory disorder, to include COPD, is not among the presumed disorders. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA has determined there is no positive association between exposure to herbicides and any other disorder for which the VA Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630-27641 (2003). See also Notice, 75 Fed. Reg. 32,540-32,548 (2010). Nonetheless, the Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by demonstrating that the disease was in fact "incurred" during the active military service by proof of direct causation. See Combee, 34 F.3d at 1042. Here, the only medical nexus opinions of record are negative. On VA examination in August 2011, following a review of the claims file and a physical examination of the Veteran, the VA examiner diagnosed the Veteran with COPD. The VA examiner then determined that the Veteran's current COPD is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner also concluded that Agent Orange has not been found to be a contributing factor for COPD. The examiner reasoned that the Veteran's STRs show multiple visits during his active military service for a cough associated with a sore throat, fever, and/or chills. The examiner noted that shortness of breath was not a complaint during the Veteran's active military service, and the in-service illnesses were self-limited. The examiner pointed out that the Veteran has a "60 pack year" history of cigarette abuse, which the examiner indicated is the largest risk factor for COPD. Thus, the examiner found that the medical explanation of the basis of the relationship supports the "less likely than not" relationship between the Veteran's active military service and his COPD. In accordance with the Board's remand, the Veteran was afforded a VA addendum medical opinion in November 2012. Following another review of the claims file, to include the lay assertions of record, the August 2011 VA examiner determined that the Veteran's current COPD is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that a review of the radiologic evidence, negative histology from the bronchoscopy in 2000, and multiple visits with pulmonologists, as well as primary care physicians, show no evidence for a diagnosis of asbestosis. Thus, the examiner found that, while the Veteran may have been exposed to asbestos, his clinical findings are not compatible with a diagnosis of asbestosis, which is a disease or disorder resulting from exposure to asbestos. Additionally, the examiner noted that the Veteran's multiple physician visits for respiratory complaints, as well as computed tomography (CT) scans, have been accompanied by a diagnosis of COPD, not other respiratory disorders. Thus, based on this evidence, the VA examiner provided a negative nexus medical opinion. The VA examiner clearly reviewed the STRs and the other evidence in the claims folder. She provided medical opinions that are supported by and consistent with the evidence of record, to include opinions on the Veteran's in-service asbestos and herbicide exposure. She gave an alternative theory to address the etiology of the current respiratory disorder - namely, smoking cigarettes. There is no positive evidence to the contrary of these opinions in the claims file. The VA and private treatment records do not provide contrary evidence. For all of these reasons, service connection is not warranted. Furthermore, the Board notes the Veteran's contentions of respiratory symptoms both during and since his active military service. However, the Veteran is not entitled to service connection for this claim based on continuity of symptomatology since his military discharge because he does not have a current chronic diagnosis, as stated under the laws and regulations. His current diagnosis of COPD is not considered a chronic disease under the statute. Therefore, presumptive service connection, and service connection based on continuity of symptomatology, is not warranted for this claim. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a), 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). In reaching this decision, the Board has considered the statements in support of the claim from the Veteran, his son, his spouse, and his friend. These people contend that the Veteran's respiratory disorder is directly related to his active military service, or, in the alternative, is related to his in-service asbestos exposure and/or in-service herbicide exposure. Regarding direct service connection, the Board acknowledges that the Veteran, his son, his spouse, and his friend are competent, even as a layperson, to attest to factual matters of which they has first-hand knowledge, e.g., the Veteran's respiratory symptoms during his active military service and thereafter. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). 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 v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), 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. Although the Veteran, his son, his spouse, and his friend are competent to report that the Veteran experienced respiratory symptoms during his active military service, which resulted in his current COPD, 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 lay statements concerning the etiology of the Veteran's COPD to be credible, since the Veteran's STRs document that the in-service complaints had resolved by the time of the Veteran's military separation examination. Additionally, the Veteran was first diagnosed with COPD by a private physician in July 1993, almost thirty years after his separation from the active duty. 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 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 lay statements are found to be incredible because they are inconsistent with the evidence of record, which fails to show a diagnosis of COPD until almost three decades after his separation from the active duty, and which contains negative medical nexus opinions. Regarding the in-service asbestos exposure and in-service herbicide exposure, although laypersons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, whether the current respiratory disorder is due to in-service asbestos exposure and/or in-service herbicide exposure, this issue falls outside the realm of common knowledge of a layperson. See Jandreau, 492 F.3d at 1377 n.4 (laypersons not competent to diagnose cancer). As a layperson, it is not shown that the Veteran, his son, his spouse, or his friend possess the medical expertise to provide such opinions. The only medical opinions of record addressing these claimed relationships are negative. No competent medical opinions linking his current respiratory disorder to his in-service asbestos exposure and/or in-service herbicide exposure have been presented. The VA examiner has considered the lay assertions in forming her medical opinions, but ultimately found that the Veteran's current respiratory disorder was not related to his active military service, to include as due to his in-service asbestos exposure and in-service herbicide exposure. Thus, as previously stated, the medical evidence of record is only against the Veteran's service connection claim. For the reasons set forth above, the Board finds that the lay statements asserting that the Veteran's respiratory 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 lay statements in support of this current claim, is unfavorable to the claim for service connection for a respiratory disorder. 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 thus that doctrine is not applicable. Gilbert, 1 Vet. App. at 49. The Veteran's claim of entitlement to service connection for a respiratory disorder other than emphysema, including COPD and asbestosis, and to include as secondary to in-service exposure to Agent Orange and asbestos, is not warranted. ORDER The claim for service connection for a respiratory disorder other than emphysema, including COPD and asbestosis, and to include as secondary to in-service exposure to Agent Orange and asbestos, is denied. ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs