Citation Nr: 1323577 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 07-22 602 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection a low back disorder. 2. Entitlement to service connection for a psychiatric disorder, to include depression. 3. Entitlement to service connection for a lung disorder, to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active military duty from July 1976 to December 1996. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a July 2005 rating decision, by the St. Petersburg, Florida, Regional Office (RO), which denied the Veteran's claims of entitlement to service connection for a psychiatric disability, service connection for a chronic back disability, and service connection for a lung disorder. He perfected a timely appeal to that decision. In March 2011, the Board remanded the issues cited above for additional evidentiary development. The VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in May 2012. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. A chronic low back disorder did not have its clinical onset in service and is not otherwise related to active duty; degenerative joint disease of the spine was not exhibited within the first post service year. 2. A chronic psychiatric disorder did not have its clinical onset in service and is not otherwise related to active duty. 3. A chronic lung disorder did not have its clinical onset in service and is not otherwise related to active duty, including claimed asbestos exposure. CONCLUSIONS OF LAW 1. A chronic low back disorder was not incurred in or aggravated by active military service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. A chronic psychiatric disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. A chronic lung disorder was not incurred in or aggravated by active service. 38 U.S.C.A. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in March 2005 from the RO to the Veteran, which was issued prior to the RO decision in July 2005. An additional letter was issued in April 2011. Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. It also appears that all obtainable evidence identified by the Veteran relative to the claims decided herein has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, that would need to be obtained for a proper disposition of these claims. It is therefore the Board's conclusion that the Veteran has been provided with opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. The Veteran has been afforded VA examinations on the issues decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and provided information necessary to decide the service connection issues addressed in this decision. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence under the VCAA. Therefore, no useful purpose would be served in remanding these matters for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The Veteran served on active duty from July 1976 to December 1976. The enlistment examination, dated in April 1976, was negative for any complaints, findings or diagnoses of a respiratory disorder, a low back disorder, or a mental disorder. In December 1979 and January 1980, the Veteran was twice seen for marital problems; there was no report of psychiatric disability. In March 1980, the Veteran was seen for complaints of lower back pain; the assessment was low back pain. In July 1982, the Veteran was seen for a commander directed evaluation. In February 1984, a psychiatric examination revealed that the Veteran was free of mental disease or emotional illness of such severity. In a March 1984 pre-assignment questionnaire and in other records, it was noted that the Veteran is a heavy smoker; in fact, he was counseled on many occasions on the risk of smoking. The STRs show that the Veteran was seen on multiple occasions for head cold, shortness of breath, cough, and sore throat; he was diagnosed with bronchitis on several occasions, including September 1976, October 1977, December 1990, January 1996 and March 1996. In September 1996, after reviewing the Veteran's records, it was determined that a retirement examination was not required. The Veteran's application for service connection (VA Form 21-526) was received in September 2004. Submitted in support of the claim were treatment reports from Dr. Mark S. Dresner, dated from November 2001 to December 2001. During a clinical visit for an unrelated condition, in November 2001, it was noted that the Veteran had a history of back pain; no pertinent diagnosis was noted. Received in July 2007 were VA progress notes dated from November 2004 through November 2006, which show that the Veteran received clinical evaluation and treatment for low back pain and depression. In November 2004, the Veteran had an initial visit for a VA physical; he complained of low back pain; the progress note reflects diagnoses of chronic low back pain and depression. In December 2004, the Veteran was referred to the mental health clinic by his primary care physician for evaluation of depressive symptoms. The Veteran reported that his mother died in October 2004; he also reported going through a divorce and he was not getting along with his family. The Veteran indicated that he had not adjusted well to civilian life. The Veteran stated that he had had problems holding a job since his retirement from the military in 1997. He also struggled with depression, which he claimed started during the process of his second divorce in 2001. The assessment was major depression, recurrent; the report also referred to a back injury in 2001 for which the Veteran was receiving 15 percent of worker disability compensation. In April 2005, a VA progress note shows that the Veteran was seen for complaints of chronic low back pain; an X-ray of the spine showed minimal narrowing of the L5-S1 spine. A June 2006 VA primary care record showed an assessment of chronic low back pain. On VA examination in May 2011, the Veteran reported the onset of shortness of breath in the 1980's; he stated that he worked in buildings with asbestos since the 1980's while in service in addition to being exposed to volcano dust in June 1991 while stationed in the Philippines after the eruption of a volcano. The examiner noted that it was significant that the Veteran has smoked 2 to 3 packs of cigarettes per day since age 18. The Veteran currently complained of shortness of breath in the morning, upon moderate activity, productive and dry coughing spells with black out episodes if coughing is severe. On examination, there was no evidence of abnormal breath sounds. Asthma was not present. There were no conditions that could be associated with pulmonary restrictive disease. The examiner noted that the Veteran had difficulty performing forced expiratory maneuvers and this likely impacted the results. Spirometric values were just below the lower range of normal. Total lung capacity was at the lower range of normal. There was a reduction in expiratory reserve volume and this may be related to effort of the burden of excess weight. The pertinent diagnosis was tobacco use disorder with chronic cough. The examiner stated that tobacco use disorder with chronic cough is less likely as not caused by or a result of time in service. The examiner noted that the Veteran and medical records reflect a long history of tobacco use which is a matter of personal choice. Though there were some changes on the pulmonary function tests, there was not a clear restrictive or obstructive pattern of definitive pathology. He further noted that the STRs reflect recurrent bouts of bronchitis, an acute process often associated with or exacerbated by tobacco use/smoking; however, there was no suggestion that this was a chronic condition. Additionally, routine physical examinations are silent for respiratory complaints or condition. A spine examination was also conducted in May 2011. At that time, the Veteran reported gradual onset of low back pain with no specific in service injury or inciting event. The Veteran did report injuring his back around 2001 after leaving service while lifting a 100 pound box; that injury initiated multiple evaluations and he is now on narcotic medications to control the back pain. The Veteran noted that the back pain was located in the lower region worse with flexion and circumduction limiting range of motion. Following evaluation of the back, the examiner reported a diagnosis of degenerative joint disease and degenerative disc disease of the lumbar spine; the Veteran stated that he was only able to work for 4 hours at a time due to back pain. The examiner opined that the lumbar spine disorder is less likely as not caused by or a result of the Veteran's time in service. The examiner explained that there is only one noted entry regarding low back pain while in service; and, there are no subsequent entries to support chronicity/severity while inservice. It was noted that the remainder of the physical evaluations make no mention of low back pain or abnormality again supporting lack of chronicity. The examiner also noted that low back pain was first noted on VA problem list on June 26, 2006. The examiner further noted that there is mention of a post-service injury in 2001 that is more in line with when the Veteran first presented to a VA provider with back complaints. In October 2001, the Veteran reported chronic depression and relational issues; he reported a history of marital problems and endings. The Veteran indicated that his children are not speaking to him and he regrets his actions in the past. The pertinent diagnosis was depressive disorder, NOS. The examiner stated that the Veteran's depressive disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there is no evidence to support the contention that the depression seen today is linked to service. The examiner noted evidence of marital counseling in file from the military; furthermore, examination reveals transitional difficulties since retiring from the military. III. Legal Analysis. Service connection may be awarded for a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1131 (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). In addition, the law provides that, where a Veteran served ninety days or more of active military service and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). A veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. S/C-Low back disorder. After review of the evidentiary record, the Board finds that service connection is not warranted for a back disorder. Significantly, while the STRs reflect complaints of lower back pain in March 1980, the remainder of the service treatment records is silent with respect to any complaints or diagnosis of a back problem. This suggests that the difficulty the Veteran experienced was acute and transitory. The first clinical documentation of the onset of a chronic low back disorder is dated in December 2004, many years after service separation. (A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).) In addition, there is no persuasive evidence indicating that there is a relationship between a current back disorder and military service. In fact, following the VA examination in May 2011, the VA examiner reviewed the medical records, examined the Veteran, and offered his opinion that the Veteran's current low back disorder is less likely as not caused by or a result of his time in service. The examiner explained that there is only one noted entry regarding low back pain while in service, and there are no subsequent entries to support chronicity while inservice. It was noted that the remainder of the physical evaluations make no mention of low back pain or abnormality again supporting lack of chronicity. The examiner also noted that low back pain was first noted several years after service. The examiner further noted that there is mention of a post-service injury in 2001 that is more in line with when the Veteran first presented to a VA provider with back complaints. The Veteran has not submitted any competent medical evidence of a nexus to service. The Board finds that the medical evidence is more probative than the lay statements. Therefore, the evidence does not support service connection for a back disorder. The medical record also does not present any evidence of arthritis of the lumbar spine being present within the first post-service year, and hence service connection may not be afforded for a low back disorder presumptively on that basis. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran has not specifically claimed that low back problems continued since service. However, to the extent such claim may be inferred, it does not establish the presence of chronic low back disability and is less probative than the etiology opinion of record. The first reported post service problems with his back followed an intervening post service injury. There is nothing in the record suggesting that chronic low back pathology is linked to service, even if the Veteran had recurring back pain since the injury in service (that went unreported in his service treatment records). Given the absence of complaint or treatment until many years after service, the Board finds that the evidence weighs against the Veteran's claim. A current back disorder is not traceable to disease or injury incurred in or aggravated by service-there is no evidence of a nexus between the post-service diagnosis and active service. The records suggest that the current back disorder is more likely related to a post-service work-related injury. The preponderance of the evidence is against the claim. As such, the Veteran's claim for service connection for a low back disorder, including degenerative disc disease, must be denied. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001) (benefit-of-the-doubt rule does not apply when preponderance of evidence is against claim). B. S/C-Psychiatric disorder. The Board notes that the Veteran has been diagnosed with a psychiatric disorder, namely depressive disorder. However, after review of the evidentiary record, the Board finds that service connection is not warranted. In this regard, the STRs indicate that the Veteran was seen in the mental health clinic for marital discord and received marital therapy; however, the STRs noted that a psychiatric examination in February 1984 revealed that the Veteran was free of mental disease or emotional illness. The remainder of his STRs is negative for any findings of a psychiatric disorder. In addition, his post-service medical records do not reflect any documentation of a disorder until December 2004 when the Veteran was seen by psychiatric service for consultation and evaluation of depressive symptoms; he was diagnosed with major depression, recurrent. In summary, there is a remarkable lack of evidence demonstrating any complaint or finding of a psychiatric disorder during the period from service discharge in 1996 until 2004. Moreover, the record does not include any evidence of a relationship between a current psychiatric disorder and the Veteran's active service other than by his own report. Significantly, following the VA examination in October 2011, the examiner opined that the Veteran's depressive disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there is no evidence to support the contention that current depression is linked to service. The examiner noted evidence of marital counseling in file from the military; furthermore, examination reveals transitional difficulties since retiring from the military. The Board finds that the medical evidence regarding etiology is more probative than the lay contentions of record. Given the examiner's opinion, the absence of complaint or treatment until many years after service, the Board finds that the evidence weighs against the Veteran's claim. The Veteran's psychiatric disorder is not traceable to disease or injury incurred in or aggravated by service, and there is no evidence of a nexus between the post-service diagnoses and active service. As such, the Veteran's claim for service connection for a psychiatric disorder must be denied. There is no doubt of material fact to be resolved in the Veteran's favor. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001) (benefit-of-the-doubt rule does not apply when preponderance of evidence is against claim). The Veteran is competent to report psychiatric manifestations to include when such manifestations started. He has not specifically contended that psychiatric problems persisted since service. To the extent he is claiming continuity, there is no clinical evidence to support his contentions. The negative service records and the absence of positive contemporaneous evidence weighs against the lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). On the recent VA examination, the Veteran's depression was linked to transitional difficulties since leaving service. The examiner noted that the Veteran was also affected by marital difficulties (also noted in service), but found no linkage of current psychiatric pathology to active service. The Board finds the VA etiology opinion more probative than any inferred claim that psychiatric symptomatology persisted since service. In summary, the preponderance of the evidence is against a finding of the presence of a depressive disorder in service or for many years thereafter. Moreover, there is no reliable evidence demonstrating a relationship between the Veteran's currently diagnosed depressive disorder and service. Accordingly, there is no basis upon which to grant service connection. In reaching these conclusions, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). C. S/C-Lung disorder, to include as secondary to asbestos exposure. After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds that the weight of the evidence is against a finding that a lung disorder, currently diagnosed as tobacco use disorder with chronic cough, is related to service or to alleged asbestos exposure in service. The Veteran asserts that his lung disability is etiologically related to his duties on the flight line in service, and more recently identified an appeal for a lung disorder due to asbestos exposure. Significantly, the Veteran reported working in buildings which contain asbestos in the 1980s while in the service; he also reported being exposed to volcanic dust in June 1981 while stationed in the Philippines after the eruption of a volcano. There are no statutes specifically dealing with asbestos and service connection for asbestos related diseases and the Secretary of VA has not promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, asbestos-related diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VBA's ADJUDICATION PROCEDURE MANUAL, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. (hereinafter M 21-1MR). In addition, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-2000. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. See M 21-1MR. When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to ascertain whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. The Manual notes that asbestos particles 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. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce plural effusion and fibrosis, pleural plaque, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The Manual also notes that lung cancer associated with asbestos exposure originates in the lung parenchyma, rather than the bronchi. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch products and brake linings, manufacture and insulation of roofing and flooring materials, sheet and pipe products, and so forth. High exposure to asbestos and the high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, several million people were employed in shipyards and U.S. Navy Veterans were exposed to asbestos since it was used extensively in military ship construction. Many of these people have only recently come in for medical attention because the latency period varies from 10 to 45 or more years between first exposure and development of the disease. Also of significance is that the exposure to asbestos may be brief, (as little as a month or two) or indirect (bystander's disease). The Manual goes on to say that the clinical diagnosis of asbestosis requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease. It should be noted that the pertinent parts of the Manual guidelines of service connection in asbestos-related cases are not substantive rules, and there is no presumption that a Veteran was exposed to asbestos in-service. Dyment v. West, 13 Vet. App. 141, 145 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. In July 1998, the Internal Revenue Service Restructuring and Reform Act of 1998 was enacted into law. In pertinent part, that act prohibits service connection of a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a veteran during military service. See, 38 U.S.C.A. § 1103 (West 2002). The Veteran served in the Air Force from July 1976 to December 1996. To date, the Veteran has not identified any specific incidents of asbestos exposure in service, nor were his duties in service, as an aircraft mechanic, or with refueling and parking aircraft shown to involve asbestos exposure. See M 21-1MR. Moreover, the Veteran has been diagnosed with tobacco use disorder with chronic cough, and not the type of lung pathology typically associated with asbestos exposure such as "restrictive disease," "pleural plaques," or "asbestosis." Because the Veteran's duties and MOS are not typically associated with asbestos exposure, and because he does not have a current lung disability typically associated with asbestos exposure, a preponderance of the evidence is against a finding that the Veteran was exposed to asbestos in service. As noted above, the Veteran has a current disability as he has been diagnosed with tobacco use disorder with chronic cough. In order for his current lung disability to be recognized as service connected, the evidence must establish a link between this condition and an in-service injury or disease. 38 U.S.C.A. § 1110; Shedden. No such evidence has been received. Although the Veteran's STRs document his treatment for URIs and bouts of bronchitis, the records do not reflect the presence of a chronic lung disability. The earliest evidence of record showing a diagnosis of a lung disorder was the May 2011 VA examination, more than 15 years following the Veteran's discharge from service. Maxson, 230 F.3d at 1333. To the extent the Veteran is claiming continuity of symptoms since service, the Board finds that current lung disability has been identified as secondary to tobacco use and service connection is not for application. There is no evidence of a relationship between current lung disorder and the Veteran's active service other than from tobacco use. To the extent that the Veteran's disabilities are related to his history of tobacco use, including while in service, service connection for disability on the basis that it is attributable to the use of tobacco products during active service is prohibited by law. 38 U.S.C.A § 1103(a) (West 2002); 38 C.F.R. § 3.300(b) (2012). Significantly, following the VA examination in May 2011, the examiner opined that Veteran's tobacco use disorder with chronic cough is less likely as not caused by or a result of time in service. The examiner noted that the Veteran and medical records reflect a long history of tobacco use which is a matter of personal choice, though there were some changes on the pulmonary function tests there was not a clear restrictive or obstructive pattern of definitive pathology. He further noted that the STRs reflect recurrent bouts of bronchitis, an acute process often associated with or exacerbated by tobacco use/smoking; however, there was no suggestion that this was a chronic condition. Additionally, routine physical examinations are silent for respiratory complaints or condition. The Board finds that the VA examiner provided an adequate rational for the opinion rendered, and that the opinion was based on an accurate factual premise, and is thus, probative. The May 2011 VA opinion provides competent, credible, and probative evidence, showing that lung disability is not related to service, including to volcano ash or alleged asbestos exposure therein. The Veteran contends that he has a current lung disorder as the result of his active duty service. While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, the Board has considered his lay assertions but ultimately places more weight on the aforementioned May 2011 VA opinion for the reasons discussed above. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a lung disorder, and the benefit-of-the-doubt rule is not for application. 38 U.S.C.A. § 5107, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disorder is denied. Service connection for a psychiatric disorder is denied. Service connection for a lung disorder, to include as secondary to asbestos exposure, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs