Citation Nr: 1327926 Decision Date: 08/30/13 Archive Date: 09/24/13 Citation Nr: 1327926 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 09-07 131 ) DATE AUG 30 2013 ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to service connection for lung disability, to include chronic obstructive pulmonary disorder (COPD) and pulmonary fibrosis, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, his spouse, and his brother-in-law ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from September 1970 to September 1983. Reportedly, he reenlisted in the Army Reserves in August 1989, with subsequent periods of Active Duty for Training (ACDUTRA) until his discharge in May 1999. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2008 rating decision in which the RO denied service connection for COPD. In January 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2009. In October 2010, the Veteran, his spouse, and his brother-in-law testified during a Board hearing before a Veterans Law Judge (VLJ) at the RO; the transcript of that hearing is of record. In April 2011 and in July 2012, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC denied the claim for service connection for a lung disability, to include COPD (as reflected in a March 2012 and October 2012 supplemental SOCs (SSOCs)) and returned this matter to the Board for further consideration. On December 7, 2012, the Board denied service connection for lung disability, to include chronic obstructive pulmonary disorder (COPD) and pulmonary fibrosis, to include as due to asbestos exposure. For the reasons expressed below, the December 7, 2012 decision is being vacated. FINDINGS OF FACT 1. In January 2013, the Veteran's spouse submitted a copy of a state Certificate of Death indicating that the Veteran died in November 2012. 2. The December 7, 2012 Board decision that denied service connection for lung disability, to include chronic obstructive pulmonary disorder (COPD) and pulmonary fibrosis, to include as due to asbestos exposure was issued after the Veteran's death in November 2012. CONCLUSIONS OF LAW 1. Vacatur of the December 2012 decision in which the Board denied service connection lung disability, to include chronic obstructive pulmonary disorder (COPD) and pulmonary fibrosis, to include as due to asbestos exposure, is warranted. 38 U.S.C.A. §§ 7103(c), 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012). 2. Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this claim. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VACATUR The Board may vacate an appellate decision at any time upon request of the appellant or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012). Unaware of the appellant's death, the Board issued a decision dated December 7, 2012 that denied service connection for lung disability, to include chronic obstructive pulmonary disorder (COPD) and pulmonary fibrosis, to include as due to asbestos exposure. Veterans' claims, however, do not survive their deaths as a matter of law. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). As such, an appeal on the merits of this issue had become moot by virtue of the appellant's death in November 2012. See 38 U.S.C.A. § 7104(a)(West 2002); 38 C.F.R. § 20.1302(2012). Accordingly, the December 7, 2012, Board decision denying granting service connection for lung disability, to include chronic obstructive pulmonary disorder (COPD) and pulmonary fibrosis, to include as due to asbestos exposure is vacated and a new action will be entered as if the December 7, 2012 decision by the Board had never been issued. DISMISSAL DUE TO THE VETERAN'S DEATH As noted above, the Veteran died during the pendency of the appeal, and as a matter of law, appellants' claims do not survive their deaths. Because this appeal on the merits has become moot by virtue of the death of the appellant, the appeal must be dismissed for lack of jurisdiction. See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012). In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the veteran. 38 C.F.R. § 20.1106 (2012). The Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008). ORDER The December 7, 2012decision in which the Board denied service connection for lung disability, to include chronic obstructive pulmonary disorder (COPD) and pulmonary fibrosis, to include as due to asbestos exposure is vacated. The appeal is dismissed. REMAND In this case, the Veteran died after October 10, 2008, and the Veteran's spouse filed a request for substitution with the RO in November 2012 and with the Board in December 2012 within one year of the Veteran's death. See 38 U.S.C.A. § 5121A (West 2002 & Supp. 2012). Therefore, the Veteran's spouse is entitled to a determination as to whether she is eligible for this substitution, and if so, to have the claim adjudicated accordingly. In this case, however, there is no evidence in either the Veteran's paper claims file or in his electronic (Virtual VA) of the RO's determination regarding the Veteran's spouse's eligibility for substitution in the Veteran's pending claim. Accordingly, this matter is hereby REMANDED for the following action: 1. The RO should make (or, if made, to associate with the paper claims file) a determination as to whether the Veteran's spouse is eligible to be recognized as a substitute for the Veteran's claim regarding entitlement to service connection for lung disability, to include chronic obstructive pulmonary disorder (COPD) and pulmonary fibrosis, to include as due to asbestos exposure. 2. If the request for substitution is or has been granted, the RO should undertake any additional notification and/or development deemed warranted and adjudicate the claim under the provisions of 38 U.S.C.A. § 5121A. 3. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran's spouse and her representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran's spouse need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141(1992). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs Citation Nr: 1241960 Decision Date: 12/07/12 Archive Date: 12/13/12 DOCKET NO. 09-07 131 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to service connection for lung disability, to include chronic obstructive pulmonary disorder (COPD) and pulmonary fibrosis, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, his spouse, and his brother-in-law ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to September 1983. Reportedly, he reenlisted in the Army Reserves in August 1989, with subsequent periods of Active Duty for Training (ACDUTRA) until his discharge in May 1999. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2008 rating decision in which the RO denied service connection for COPD. In January 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2009. In October 2010, the Veteran, his spouse, and his brother-in-law testified during a A Board hearing before a Veterans Law Judge (VLJ) at the RO; the transcript of that hearing is of record. In April 2011, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC denied the claim for service connection for a lung disability, to include COPD (as reflected in a March 2012 supplemental SOC (SSOC)) and returned this matter to the Board for further consideration. In May 2012, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). In June 2012, the Board notified the Veteran that the VLJ who conducted the October 2010 hearing is no longer employed at the Board, and offered him another opportunity for a hearing before a current VLJ who would participate in the decision in his appeal, consistent with 38 C.F.R. §§ 20.707 and 20.717 (2012). In July 2012, however, the Veteran declined a new hearing and indicated his desire for his appeal to be considered on the basis of the current record. In July 2012, the Board again remanded the issue in order to obtain all contemporary records and in order to afford the Veteran a new VA examination which considered both COPD and pulmonary fibrosis. As noted in the previous remand, in a July 2012 letter, the Veteran rescinded a June 2012 VA Form 21-22a, in which he designated private attorney Richard V. Keating, Jr. as his representative, and indicated his desire to reappoint The American Legion as his representative. In light of the above, and inasmuch as the June 2006 VA Form 21-22 in favor of The American Legion has not been revoked, the Board continues to recognize The American Legion as the Veteran's representative. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Although the Veteran's assertions as to in-service asbestos exposure and exposure to chemicals and dust associate with motor vehicle repair appear credible and consistent with his service, he has not been diagnosed with asbestosis, and the most probative medical opinions on the question of whether there exists a medical nexus between any current lung disorder and service weigh against the claim. CONCLUSION OF LAW The criteria for service connection for a lung disorder, to include as due to asbestos exposure, are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) ). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. §3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a May 2007 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The January 2008 rating decision reflects the initial adjudication of the claim after issuance of this letter. In a January 2009, post-rating letter, the Veteran was informed as to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuance of the January 2009 letter, and opportunity for the Veteran to respond, the May 2009 SSOC reflects readjudication of the claims. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service, VA, and private treatment records, Social Security Administration records, and the reports of May 2011 and August 2012 VA respiratory examinations. Also of record and considered in connection with the appeal is the transcript of the Veteran's October 2010 Board hearing, along with various written statements provided by the Veteran, by his relatives, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required. The Board is satisfied that the RO has complied with its July 2012 remand directives as they pertain to the claim for entitlement to service connection for a lung disorder. In this regard, as directed by the Board, additional VA treatment records were requested as was sufficient information and authorization to enable the RO to obtain additional evidence pertinent to the claim, and the Veteran was provided with a VA respiratory examination in August 2012, with an opinion being provided by the examiner. Thus, the Board finds that the examiner and AMC substantially complied with the Board's July 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc ., 159 F.3d 534, 54 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . In this appeal, the Veteran asserts that he was exposed to asbestos and fumes and particle dust associated with his work with motor vehicles during his military service, which resulted in his lung disorders. In support of his claim for service connection, the Veteran has alleged that he frequently worked with brakes and other materials which contained asbestos and harmful chemicals during his active duty service. Hence, the Veteran asserts that his current lung disability may be attributable to such in-service exposure. A review of the Veteran's service records, to include his DD Form 214, reflects that the Veteran was assigned the military occupational specialties (MOS) of light wheel vehicle power generation mechanic and track vehicle mechanic. As such, the Veteran's documented service appears to be consistent with his claimed in-service exposure. The Board points out, at the outset, that there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. 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 VA's Adjudication Procedure Manual, M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29.a (Sept. 29, 2006). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-00. VA must analyze the Veteran's claim of entitlement to service connection for asbestos-related disease under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The Adjudication Manual contains guidelines for the development of asbestos exposure cases. They indicate that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). The Adjudication Manual also acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in the manufacture and servicing of friction products, such as clutch facings and brake linings. Also noted is that the latent period varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). The Adjudication Manual provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. See also VAOPGCPREC 4- 2000 (April 13, 2000); Ashford v. Brown, 10 Vet. App. 120, 123-24 (1997) (while holding that a veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). The Board also points out that the pertinent parts of the Manual guidelines on service connection in asbestos-related cases are not substantive rules, and that there is no presumption that a veteran was exposed to asbestos in service. See Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. Finally, the Board notes that a Veteran's disability shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service if it resulted from injury or disease attributable to the use of tobacco products by a Veteran during active service. 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim for service connection for a lung disorder, to include as due to asbestos exposure, must be denied. Service treatment records include the Veteran's July 1970 enlistment report of medical examination which noted normal findings in the lungs and chest. A February 1983 report of medical examination for separation noted that the lungs and chest were found to be normal. A September 1998 report of physical examination reported a normal lung and chest examination, the Veteran is shown to have reported that he did not smoke cigarettes and it was noted that the Veteran had severe COPD and used oxygen therapy. In his September 1998 report of medical history, the Veteran reported a history of severe COPD. Private treatment records from Peabody Medical Associates include a January 1994 record in which it was noted that the Veteran was a smoker and had new onset emphysema with reactive airway disease. In a private treatment record from Dr. A.M. dated in October 1995, it was noted that the Veteran was smoking three quarters of a pack of cigarettes a day. In a May 1997 treatment note, Dr. A.M. provided an impression of significant obstructive lung disease, presumably emphysema, which was related to smoking. In a July 1997 record from Dr. P.K., it was noted that the Veteran had severe COPD, the cause of which was uncertain. The Veteran was afforded a VA examination in April 2002. During his examination, the Veteran explained that he had been chronically out of breath since 1997. The Veteran explained that he smoked ten cigarettes a day from age thirteen until two and a half years prior, when he quit smoking. A diagnosis of severe chronic obstructive pulmonary disease with hypoxia was provided. The VA examiner did not provide an etiology opinion in the examination report In a November 2005 treatment note from Rome Memorial Hospital, it was noted that the Veteran was still smoking a few cigarettes a day, the Veteran's physician stated his belief that the Veteran was in fact smoking more than he claimed. The Veteran testified before a Veterans Law Judge in October 2010, at the RO in Buffalo, New York. During his hearing, the Veteran explained that during service he was treated for pneumonia and that he worked in the motor pool where he was exposed to exhaust, smoke and fumes, and that he worked with asbestos. He explained that he came down with pneumonia several times and that he was treated with antibiotics. It was reported further that the Veteran was treated with oxygen while he served in the Army Reserves. It was noted that the Veteran was told that he had the flu while serving in the Reserves but then he was later he was told that he had advanced COPD. In a November 2010 letter from family nurse practitioner, J.W. of the Rome VA medical center, J.W. stated that the conditions the Veteran worked under during his military service had been known to be contributing factors in the cause of COPD and other lung disease. She stated that exposure to unvented exhaust and heater fumes, exposure to asbestos and other fine dust particles would definitely contribute to developing lung disease. The Veteran was afforded a VA examination in May 2011. During the examination, the Veteran reported a longstanding history of smoking as well as a history of working during service as a mechanic in the motor pool, where ventilation was reportedly poor. The Board notes that a transcript of the Veteran's hearing, which reflects that the Veteran's testimony that he was exposed to asbestos during service, was associated with the claims file and made available to the VA examiner. Based upon the Veteran's documented and reported history and findings on examination, the examiner confirmed the COPD diagnosis and opined that the Veteran's COPD was less likely than not caused by or a result of the Veteran's workplace exposures during active duty service. The examiner's stated rationale was that the Veteran began smoking at age 13 and only relatively recently quit. He noted that workplace exposures are associated with chronic bronchitis, but not emphysema, that cigarette smoking was the most strongly associated cause of emphysema, and the Veteran smoked cigarettes for forty years. The examiner stated that, given that cigarette smoking was much more highly causally related to emphysema/COPD, it was not possible to opine that workplace exposures were the cause of the Veteran's current lung condition. The examiner further cited the article "Chronic Obstructive Pulmonary Disease" by Dr. Gerald W. Staton, Jr., which stated in part "cigarette smoking is the underlying cause of COPD in the vast majority of patients...prolonged exposure to various types of dust...are associated with industrial or occupational bronchitis...[h]owever, in most studies of occupational lung disease, the effects of smoking greatly outweigh the effects of occupational exposures." In an April 2012 handwritten private treatment note, Dr. K.R.P. indicates that"[the Veteran] is suffering with severe COPD and pulmonary fibrosis end stage most likely caused by exposure to asbestos and smoking." In an April 2012 statement, the Veteran noted that his May 2011 VA examiner stated after 10 minutes of examination that the Veteran's lung disability was due to forty years of smoking but that he failed to prove that thirteen years of working with asbestos and exhaust fumes were not the cause of his condition. He stated that he never smoked more than a pack of cigarettes at any time and when he was first diagnosed, his doctor told him he would have to have smoked over five packs of cigarettes a day for his lungs to be in the condition they were in. In an April 2012 VA medical center treatment note, Dr. R.S. notes the Veteran and his wife's reports that during service part of his job was to use an air hose to blow asbestos out of brakes on motor vehicles and that towards the end of his military career he used an oxygen tank. The Veteran and his wife reported that the Veteran smoked about 2 cigarettes per day for about thirty years and that he stopped smoking approximately ten years prior. In a later April 2012 treatment note, Dr. R.S. stated that the Veteran's lung disability was more likely as not caused by or a result of his work place and other exposures during military service. He stated that, although the Veteran stated smoking at age 13, he never smoked more than six to nine cigarettes a day and he reduced his smoking around 1989 while working in the Reserves while trying to quit and that he stopped smoking altogether around 2002 or 2003. Dr. R.S. additionally noted that the Veteran was treated for pneumonia while on active duty, which also contributed to his current lung problems. The Veteran was afforded a second VA examination in August 2012. It was noted that the claims file was reviewed prior to examination. Following examination, the VA examiner determined that the Veteran had emphysema which was caused by cigarette smoking. She further noted that it was less likely as not caused by or a result of workplace or other exposures during military service. She explained that the Veteran started cigarette smoking at age thirteen and quit relatively recently. She referred to the same reference article that the May 2011 VA examiner cited and noted that generally, workplace exposures could be associated with chronic bronchitis but not with emphysema. She further noted that cigarette smoking was the most strongly associated definite cause of emphysema and that the Veteran reportedly smoked cigarettes for forty years. Regarding asbestos exposure, the VA examiner noted that there was no diagnosis of asbestosis as related to the Veteran's terminal lung condition. She noted that asbestosis was a restrictive lung disease whereas COPD was an obstructive lung disease and that the Veteran did not have asbestosis or restrictive lung disease. She added that medical literature showed that the characteristic lung function abnormalities in patients with asbestosis included the absence of airflow obstruction by spirometry whereas the Veteran's pulmonary function test showed marked obstruction which was inconsistent with asbestos related disease, she noted that airway obstruction generally reflected exposure to cigarette smoke. She further stated that fibrosis was not a predominant finding in the Veteran's recent CT scan but that fibrosis of the lung tissue can also occur with COPD noting that "many studies have found increased collagen in the lungs of patients with mild COPD indicating that fibrosis exists." The examiner stated that fibrosis would be considered part of the progression of the Veteran's emphysema/COPD. In analyzing the evidence of record, the Board notes that, although the Veteran's assertions as to in-service asbestos and mechanical fume exposure appear credible and consistent with his service, the preponderance of the evidence indicates that the Veteran's lung disorders, primarily COPD/emphysema, are secondary to his long history of smoking, as opposed to exposure to either asbestosis or fumes. As enumerated above, there are seven competent but conflicting opinions of record which address whether the Veteran's lung disorders are due to his service. To summarize, in May 1997 Dr. A.M related the Veteran's lung conditions to his history of smoking and in July 1997 Dr. P.K. stated that the cause of his conditions was uncertain. A November 2010 note from nurse practitioner J.W. stated her belief that the Veteran's exposure to asbestos, dust particles and chemicals used in the motor pool would definitely be a contributing factor to developing lung disease. The Veteran's May 2011 and August 2012 VA examiners opined that the Veteran's lung disorders are less likely than not due to the Veteran's exposure to workplace fumes and chemicals and more likely due to his history of smoking, and Dr. K.R.P. is shown to have opined in April 2012 that the Veteran's severe COPD and pulmonary fibrosis was most likely caused by exposure to asbestos and smoking. Finally, in April 2012, Dr. R.S. is shown to have related the Veteran's lung disorders to in-service exposure to dust, fumes and asbestos. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not, however, be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board finds the opinions of the May 2011 and August 2012 VA examiners most probative. Significantly, in their opinions, the VA examiners cite medical literature in support of their findings and are shown to have reviewed the entirety of the Veteran's claims file. While not dispositive, here, a review of the claims file did allow the VA examiners to make a better informed decision regarding the etiology of the Veteran's conditions. Moreover, and significantly, as shown by the August 2012 VA examiner, the Veteran's lung conditions appear to be inconsistent with asbestosis and asbestosis is simply not shown. However, as cited by the VA examiner, the Veteran's most prevalent conditions, COPD/emphysema, is most commonly associated with smoking, and the Veteran is shown to have a long history of regular smoking for several decades. Regarding the issue of pulmonary fibrosis, the August 2012 VA examiner clearly states that the condition is related to COPD, as opposed to being a separate disorder. The VA examiners are shown to have considered all claimed in-service exposure, the medical records, the Veteran's own testimony and medical literature pertaining to the most common causes of the Veteran's lung disorders. By contrast, the opinions offered in support of the claim, those by nurse practitioner J.W., Dr. K.R.P, and Dr. R.S.-do not suggest that the Veteran's entire medical history as pertaining to the Veteran's lung disorders was reviewed, nor do either J.W. or Dr. K.R.P. provide a detailed rationale for their opinions. Further, the nexus opinions of J.W. and K.R.P. are tenuous, noting that in-service exposure noted by the Veteran could contribute to his lung disorder, suggesting that other factors, such as the Veteran's smoking, were also contributory. Additional private records note that the cause of the Veteran's lung disorders were smoking, that the cause was uncertain. The Board notes that, where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). The Board finds however that, when taken as a whole, the medical evidence weighs in favor of a finding that the Veteran's lung disorders were more likely due to smoking than due to his in-service exposure to asbestos, fumes and dust. The Board further notes that, while the opinion of Dr. R.S. is supported by stated rationale, Dr. R.S.'s findings appear to be based in part on the Veteran's own reports of his smoking history which is inconsistent with the evidence of record. Significantly, in April 2012, the Veteran is shown to report once that he smoked about two cigarettes a day for 30 years and later in the month to have smoked between six and nine cigarettes a day and to have quit ten years prior, around 2002. The evidence of record includes, however, multiple reports that the Veteran often smoked about a half a pack of cigarettes a day for several decades, and the earliest treatment notes suggest he smoked even more than that. Further, November 2005 treatment records from Rome Memorial Hospital reported that the Veteran was still smoking a few cigarettes a day and the Veteran's physician stated his belief that the Veteran was in fact smoking more than he claimed, demonstrating that the Veteran may have quit smoking at some time prior to 2005, but resumed smoking thereafter. Inasmuch as Dr. R.S.'s opinion relies, at least in part, upon the Veteran's underreporting of his smoking history, the opinion is therefore accorded little, if any, probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet.App. 229 (1993)) (holding that the Board is not bound to accept medical opinions that are based upon an inaccurate factual premise). See also Madden v. Gober, 125 F.3d 1477, 1481 (Fed.Cir. 1997) (the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). For the reasons expressed, the Board finds that the medical opinion of the May 2011 and August 2012 VA examiners outweigh the tenuous opinions of the nurse practitioner J.W., the Veteran's private physicians and Dr. R.S.. Accordingly, the oard finds that the preponderance of the competent, persuasive evidence weighs against the Veteran's claim. The Board further finds that, to whatever extent the Veteran and/or his representative attempt to establish the existence of a medical relationship between any current lung disorder and the Veteran's service on the basis of lay assertions, such attempt must fail. The matter of the medical etiology of current lung disabilit7 the Veteran's currCOPD upon which this claim turns is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without the appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on such a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. Moreover, whether any respiratory symptoms the Veteran experienced in service or following service are in any way related to the currently diagnosed COPD requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). As indicated, the most probative medical opinions of record indicate that the Veteran's COPD is not related to service, including any asbestos or other chemical exposure therein. For all the foregoing reasons, the Board finds that the claim for service connection for a lung disability, to include COPD, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for lung disability, to include chronic obstructive pulmonary disorder (COPD) and pulmonary fibrosis, to include as due to asbestos exposure, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs