Citation Nr: 1311871 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 10-46 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a psychiatric disability to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a lung condition, including as due to asbestos exposure. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1974 to November 1976. This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board observes that since the issuance of the most recent June 2011 supplemental statement of the case, additional VA treatment records have been associated with the Veteran's virtual VA claims file. The newly submitted evidence was not accompanied by a waiver of RO consideration. Nevertheless, the Board finds that, because those treatment records are cumulative of evidence already in the claims folder, they do not constitute additional pertinent evidence. Therefore, an additional remand to the RO specifically for consideration of that evidence is unnecessary. 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. The Veteran did not engage in combat. 2. Credible supporting evidence that an in-service stressor occurred is not shown. 3. The Veteran does not have PTSD or other psychiatric disability that is etiologically related to service. 4. The Veteran is not shown to have an asbestos-related respiratory disorder. 5. The Veteran does not have a respiratory disorder that is etiologically related to service. CONCLUSIONS OF LAW 1. A psychiatric disorder, to include PTSD, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. A respiratory disorder was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. With asbestos-related claims, the Board must determine whether the development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120, 124- 125 (1997) (while holding that the 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 claim- development procedures). The procedures regarding development of asbestos-related claims are specified in VA Adjudication Procedure Manual, M21-1 Manual Rewrite, subpart ii (compensation), 1.H.29 (Developing Claims for Service Connection for Asbestos-Related Diseases). Notice in this case was addressed in October 2009, November 2009, and December 2009 letters that advised the Veteran of the information and evidence necessary to substantiate his claims, including the disability-rating and effective-date elements of a service connection claim and the particular elements to support a claim of asbestos exposure. The November 2009 letter further advised the Veteran of notice of how to substantiate a claim for PTSD. The notice was provided to the Veteran prior to the initial adjudication of his claims in April 2010. The record also reflects that service treatment records (STRs), service personnel records, and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran has also been afforded relevant VA medical examinations to address the etiology of the service-connected disabilities on appeal. The Board finds that those examinations to be sufficient for adjudicatory purposes. Specifically, those reports reveal that the examiners conducted detailed examinations of the Veteran, elicited a comprehensive history from the Veteran, and reviewed his claims file. Moreover, neither the Veteran nor his representative has asserted that the opinion is insufficient. Accordingly, the record contains sufficient competent medical evidence to decide the claims. The Veteran has been advised of his entitlement to a hearing before the RO's Decision Review Officer and/or before the Board but he has not requested a hearing. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim, and the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claims on appeal. Service Connection In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Establishing service connection specifically for the psychiatric disability of PTSD requires that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a) (2012). In adjudicating a claim for service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. §§ 3.303(a), 3.304. The evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether the Veteran "engaged in combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 358 (1998); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a Veteran engaged in combat with the enemy, and the claimed stressor(s) is related to combat, the Veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to the actual occurrence, and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory and consistent with his circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); Doran v. Brown, 6 Vet. App. 283, 289 (1994); 38 C.F.R. § 3.304(d)(f). The evidence in this case does not show, and the Veteran is not claiming, that the claimed stressors involved his role in combat. During the pendency of this claim, effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 38 C.F.R. § 3.304(f)(3). The amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the Veteran's claimed in-service stressor is related to "fear of hostile military or terrorist activity." See 38 C.F.R. § 3.304(f)(3). The evidence in this case does not show that the claimed stressors were related to "fear of hostile military or terrorist activity." Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Psychiatric Disability A VA treatment record dated in November 2009 shows a diagnosis of PTSD made by a social worker, along with diagnoses of Major Depressive disorder, not otherwise specified, alcohol abuse, alcohol dependence traits, and tobacco use. A VA examination in January 2011 diagnosed PTSD as well as alcohol dependence. However, just because a physician or other health care professional accepted the appellant's description of his active service experiences as credible and diagnosed the appellant as suffering from PTSD does not mean the Board is required to grant service connection for PTSD. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The RO has denied the claim based on a determination the Veteran had not shown an in-service stressful event ("stressor"). The evidence necessary to establish the occurrence of a recognizable stressor during service varies depending on whether the veteran "engaged in combat with the enemy." West v. Brown, 7 Vet. App. 70, 76 (1994). The Board is required to "make specific findings of fact as to whether or not the claimed stressor is related to such combat." Zarycki v. Brown, 6 Vet. App. 91, 97-98 (1993). Initially, the Veteran has not alleged, and the record does not otherwise show, that the Veteran engaged in combat. Instead, regarding stressors, the Veteran has primarily reported that, while his ship was stationed in Italy sometime around January 1975, he witnessed an attempted rescue of three Italian civilians who were in a vehicle that went off of an embankment or a dock into the water and became submerged. He reported that two of the occupants drowned, a mother and daughter, and that one of the bodies was brought onto his ship. He has also reported a stressor involving the then-Soviet navy. In an October 2009 statement, the Veteran reports that his ship, a supply ship, was involved in a stand-off with the "Russian Navy," where there was a show of force. He reported that at one point, he was on the gun crew. In a subsequent December 2009 written statement, the Veteran recounted a somewhat different version, indicating that when he awoke one day in May or June of 1976, the Russian fleet was around his ship, to which he thought, "O man here we go." He then reported that, being a supply ship, they supplied most of the fleet that day "to show how organized our Navy really was." Significantly, the Veteran did not report that stressor during his initial November 2009 mental health consult, nor did he report it during his January 2011 VA PTSD examination. Finally, the Veteran has reported stressors relating to a fire in the engine room of his ship that occurred in the Straits of Gibraltar sometime around March 1976, and relating to physical abuse when he was in boot camp and a drill instructor stood on his back and made him do pushups, and called him a derogatory name. In February 2010, the RO sought to verify the Veteran's reported stressors relating to the drownings in January 1975, a fire aboard the ship in March 1976, and an encounter with the Russian fleet occurring around May or June 1976. In March 2010, a negative response was received from the National Archives and Records Administration (NARA). It was noted that the USS San Diego was not in Naples, Italy in January 1975, but instead from May 1975 to June 1975. However, there were no references to a car accident or US Navy divers looking for civilians in the deck logs for either period. A search of the ship's deck logs for references to a fire and the presence of the Soviet Navy was also negative. As to the Veteran's reported stressor involving a drill instructor in boot camp, the Veteran's service personnel and treatment records do not show complaints or injury related to physical or verbal abuse from a drill instructor. The Veteran has not provided sufficient evidence to permit objective verification, nor has he consistently reported that stressor during the period on appeal. Significantly, the Veteran did not report that stressor in his initial October 2009 statement regarding in-service stressors, nor did he report it during his January 2011 VA examination. Moreover, the Veteran was advised, but failed, to provide alternative forms of evidence in support of that claimed stressor. Accordingly, the Board finds that claimed stressor not verifiable and further, to lack credibility. Regarding the claimed stressor involving a fire aboard the Veteran's ship, the Board is cognizant that during a November 2009 VA mental health consult, the Veteran reported that the fire occurred in September or October 1976. However, as the Veteran's personnel records show that in September 1976 and October 1976, the Veteran's ship was in Norfolk, Virginia, and/or that he was absent without leave, the Board finds the report of the fire occurring during that period to lack credibility, as it is inconsistent with the Veteran's statements that the fire occurred in or near the Straits of Gibraltar. Accordingly, the Board finds that further efforts are not warranted to verify that claimed stressor using dates in September 1976 and October 1976. The January 2011 VA examiner diagnosed PTSD based on the Veteran's reported stressor of witnessing the drowning death of civilians that were brought aboard his ship. It was noted that the stressor was not related to hostile enemy or terrorist activity, but if it could be confirmed, then the Veteran would meet the criteria for military related PTSD. However, as the reported stressor has not been corroborated, the Board finds that no diagnosis based on such an in-service experience can establish that the stressor occurred, and therefore, the criteria for service connection for PTSD have not been met. The Board acknowledges that the Veteran reported that he was unable to sleep in April 1975, and that his service personnel records show that the Veteran was disciplined for behavior problems in August 1976 and September 1976, prior to his November 1976 separation due to substandard personal behavior. Significantly, however, the April 1975 report of problems sleeping occurred prior to when NARA has verified that the Veteran's ship was in Naples, Italy, and therefore prior to when the Veteran's reported stressor involving the drowning of Italian citizens could have occurred. Furthermore, personnel records also show that the Veteran had disciplinary problems in August 1974, prior to the Veteran's other reported verifiable stressors. In sum, the Board has found that although the Veteran is diagnosed with PTSD he has not shown a verified in-service stressor. Accordingly, the criteria for service connection for PTSD are not met and the claim must be denied. The Board has also considered whether service connection is warranted for an acquired psychiatric disability, other than PTSD. In this regard, a VA social worker diagnosed Major Depressive disorder in November 2009, and subsequent VA treatment records note depression and substance abuse. The Veteran's service treatment records show a complaint of trouble sleeping in April 1975, but are otherwise negative for psychiatric treatment in service, and he was not diagnosed with any acquired psychiatric disability. Significantly, the Veteran denied depression or excessive worry, frequent trouble sleeping, and nervous trouble of any sort during his November 1976 separation examination. As such, the service treatment records do not support a finding that the Veteran's acquired psychiatric disability began during his time in service. Following service, the Veteran's claims file is silent for any psychiatric treatment for many years. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). In fact, no records describe any psychiatric treatment until October 2009, when the Veteran first filed his claim for service connection for PTSD, and at that time, the Veteran reported anxiety but denied recent mood changes. Significantly, the Veteran has also reported family stressors in conjunction with his depression during the course of the period on appeal. No medical professional has related a psychiatric disability other than PTSD to the Veteran's military service, which only provides more limited evidence against this claim. The Veteran was provided with a VA psychiatric examination in January 2011, but no psychiatric diagnosis other than PTSD was related to the Veteran's military service. As such, the criteria for service connection for an acquired psychiatric disability, other than PTSD, have not been met, and the Veteran's claim is denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. Lung Condition There is no statute specifically addressing service connection for asbestos-related diseases, nor has the VA promulgated any specific regulations or presumptions for these types of cases. However, in 1988 VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See VA Department of Veterans Benefits (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 the VA Adjudication Procedure Manual, M21-1 Manual Rewrite, Part IV, subpart ii, 2.C.9 (Service Connection for Disabilities Resulting from Exposure to Asbestos) (hereinafter "M21-1MR, IV.2.ii.C.9."). In addition, an opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on in-service asbestos exposure. See VAOPGCPREC 4-00. Based on the foregoing, the VA must analyze the Veteran's claim for service connection for a disability that is related to asbestos exposure under the established administrative protocols. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Common materials that may contain asbestos include steam pipes for hearing units and boilers, ceiling tiles, roofing shingles, wallboard, fireproofing materials and thermal insulation. M21-1MR, IV.ii.2.C.9.a. Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial fibrosis, or asbestosis); tumors; pleural effusions and fibrosis; pleural plaques; and, cancers of the lung, bronchus, larynx, pharynx and urogenital system (except the prostate). M21-1MR, IV.ii.2.C.9.b. Specific effects of exposure to asbestos include lung cancer, gastrointestinal cancer, urogenital cancer and mesothelioma. Disease-causing exposure to asbestos may be brief and/or indirect. Current smokers who have been exposed to asbestos face greater risk of developing bronchial cancer, but mesotheliomas are not associated with cigarette smoking. M21-1MR, IV.ii.2.C.9.c. The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1MR, IV.ii.2.C.9.d. A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. M21-1MR, IV.ii.2.C.9.e. Some of the major occupations involving exposure to asbestos include mining; milling; working in shipyards; 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 such products as roofing and flooring materials, asbestos and cement sheet and pipe products and military equipment. Exposure to any simple kind of asbestos is unusual except in mines and mills where the raw materials are produced. M21-1MR, IV.ii.2.C.9.f. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. M21-1MR, IV.ii.2.C.9.g. When deciding a claim for service connection for a disability resulting from an exposure to asbestos, VA must determine whether service records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1MR, IV.ii.2.C.9.h. The Court has found that provisions in former paragraph 7.68 (predecessor to M21-1MR, IV.ii.2.C.9.f-g cited above) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Dyment v. West, 13 Vet. App. 141, 145 (1999); aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Medical nexus evidence is required in claims for asbestos-related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00 (April 13, 2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In his claim for service connection, the Veteran asserted entitlement to service connection for a lung condition, claimed as due to asbestos exposure aboard the USS San Diego and in the ship yards of Portsmouth, Virginia. When a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board will accordingly consider whether the Veteran has a respiratory disorder for which service connection can be considered, whether or not such disorder is etiologically related to asbestos exposure. Service personnel records show that the Veteran served aboard the USS San Diego from July 1974 to November 1976, at which time he was transferred to the Naval Support Activity Philadelphia. In November 1976, he received a general discharge under honorable conditions due to substandard personal behavior. Personnel records show that the Veteran served as a seaman apprentice (SA) or a seaman (SN) for most of his service, and his DD Form 214 reflects a related civilian occupation of water transportation. Initially, the Board observes that in the May 2010 statement of the case, the RO conceded that the Veteran had minimal exposure to asbestos in service through his duties as a water transportation specialist. Service treatment records show that the Veteran reported shortness of breath upon entrance examination in January 1974, but are otherwise negative for complaints or clinical findings related to respiratory problems. Examination in November 1976 at the time of the Veteran's separation from service shows clinical examination of the lungs and chest as "normal." Post service VA treatment records dated from October 2009 to January 2010 document the Veteran's report of a 30 year history of smoking about one and one-half packs per day. They also show complaints of coughing and shortness of breath, and a diagnosis of mild pneumonia in October 2009. The Veteran was afforded a VA examination in January 2010 during which he reported some increased shortness of breath and feeling winded with less exertion over the past few months. It was noted that the Veteran described some dyspnea with moderate exertion. The examiner noted that the Veteran was a smoker and had a chronic and often productive cough. The Veteran also reported possible exposure to asbestos in service. He was not on any medications for ongoing pulmonary or respiratory conditions. Nor had he been diagnosed with asbestosis or asbestos-related disease, though he did report treatment in October 2009 for pneumonia. Physical examination revealed no evidence of abnormal breath sounds and was essentially within normal limits. A chest x-ray revealed cardiomegaly and two right lung nodules, unchanged when compared to a November 2009 imaging. A CT scan revealed a right upper lobe nodule and pericardial effusion. Pulmonary function testing (PFT) revealed moderate airflow obstruction with modest improvement following bronchodilators. Lung volumes revealed hyperinflation and diffusion capacity was minimally reduced. Based on the foregoing examination and a review of the claims file, the examiner diagnosed obstructive lung disease and pulmonary nodule, which resulted in shortness of breath and dyspnea on exertion with moderate exertion. The examiner noted that although there was some evidence of obstructive lung disease and nodules of the lungs, there was no indication that the Veteran had any asbestos-related pulmonary or respiratory disease. The examiner found that the abnormalities shown on PFTs are at least as likely as not due in large part to the Veteran's extensive smoking history. Further, while the etiology of the pulmonary nodule was not currently confirmed, the examiner noted that asbestos-related diseases of the lung do not typically present by way of pulmonary nodule. Therefore, the examiner concluded that it is less likely as not that the radiographic evidence of pulmonary nodule is due to or a result of previous asbestos exposure. Thereafter, VA treatment records dated in January 2011 show that the Veteran underwent an additional PFT, which was reported as normal. The Veteran underwent heart catheterizations and angiographies in March 2011 to determine whether the Veteran's dyspnea was cardiac in origin. However, it was noted that the Veteran had normal coronaries and normal PA pressures. In June 2011, the Veteran was again seen for stated shortness of breath and wheezing. However, no respiratory or pulmonary disorder was diagnosed. Subsequent VA treatment records note that the Veteran is followed for COPD. The Board finds there is no medical evidence of record showing an asbestos-related pulmonary disorder (asbestosis, mesothelioma or other disease associated with asbestos exposure in M21-1MR, IV.ii.2.C.9.b-c). The VA treatment records confirm pulmonary symptoms (shortness of breath, cough, wheezing), and treatment for obstructive lung disease, but do not show a medical diagnosis of an underlying disease that is related to the Veteran's service. The Board further notes that the Veteran has not asserted, and the evidence of record does not show, that he has had a chronic pulmonary disorder since discharge from service. The Board has considered the Veteran's lay assertion that he has lung disease due to asbestos exposure in service. Certainly, he is competent to report respiratory symptoms, and the nature and circumstances of his service, and his testimony in that regard is entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, in most cases, the Veteran is not competent to render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his in-service asbestos exposure and any current respiratory problems. The Board finds such assertions particularly problematic in light of the fact that the Veteran has not reported recurring shortness of breath since service. As such, the Board ascribes far more weight to the conclusions of the January 2010 VA examiner that the Veteran does not have an asbestos-related pulmonary or respiratory disorder, and that breathing problems are likely due to his smoking history. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In short, there is no medical nexus of record linking a specific lung disorder to asbestos exposure in service, and the most probative opinion of record is against a finding of any such nexus. As such, the Board concludes that the preponderance of the evidence is against the claim. Accordingly, service connection for a respiratory disorder secondary to exposure to asbestos is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for a psychiatric disorder, to include PTSD, is denied. Service connection for a respiratory disorder, to include as a result of asbestos exposure, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs