Citation Nr: 1405921 Decision Date: 02/10/14 Archive Date: 02/24/14 DOCKET NO. 09-15 124 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) with pulmonary fibrosis, to include as due to asbestos exposure. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell INTRODUCTION The Veteran served on active duty from September 1979 to July 1983. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision in which the RO, inter alia, denied service connection for COPD, a low back disability, and hepatitis. In July 2008, the Veteran filed a notice of disagreement. A statement of the case (SOC) was issued in April 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2009. In December 2010, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) in Washington, DC; a transcript of the hearing is of record. During the December 2010 hearing, the Veteran submitted a letter indicating that he withdrew from appeal the claims for service connection for bilateral hearing loss and tinnitus. As the withdrawn issues are no longer before the Board (see 38 C.F.R. § 20.204), and for the reason explained below the appeal is limited to the two issues reflected on the title page. In March 2011 the Board denied service connection for hepatitis and at that time remanded the remaining claims for service connection for further development. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) c file associated with the Veteran's claims. A review of the Virtual VA file does not reveal any additional documents pertinent to the present appeal other that electronic VA treatment (CAPRI) records which were entered into Virtual VA in March 2012, and were of record and considered by the May 2012 Supplemental SOC (SSOC). In a March 2012 rating decision (contained within Virtual VA) the RO granted service connection for scars of the head, face or neck, due to an in-service auto accident. . FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Although the Veteran was exposed to asbestos during service, there is no competent evidence indicating he currently has chronic residual disability as a result of any exposure to asbestos during service. 3. COPD with pulmonary fibrosis was not shown in service, and there is no competent evidence that there exists a medical relationship between any current COPD and pulmonary fibrosis and military service. 4. A low back disorder was not shown in service, and there is no competent evidence that there exists any relationship between any current low back disability, including arthritis, and either military service or the Veteran's service-connected left knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD with pulmonary fibrosis, to include a due to asbestos exposure are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. The criteria for service connection for a low back disability, to include as secondary to service-connected left knee disability, are not met. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310(a) and (b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations 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) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), 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(s); (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(s), 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 a 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). 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 June 2007 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for service connection, what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA; this letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The July 2008 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the June 2007 letter-which meets the pertinent content of notice requirements described in Pelegrini, and Dingess/Hartman-also meets the VCAA's timing of notice requirement. 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 and the report of a 2008 VA examination with respect to the claim for service connection for low back disability on the basis of incurrence during or related to military service. The adequacy of that VA medical opinion has not been challenged. As to this, the Board is entitled to assume the competence of VA medical personnel and the adequacy of a VA medical opinion unless it is challenged. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010); Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009); and Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); and Hilkert v. West, 12 Vet. App. 145, 151 (1999). Also, the competence of the VA physician providing the VA opinion and the adequacy of the examination is not challenged. The Board acknowledges that the Veteran was not afforded a VA examination as to his claim for service connection for COPD with pulmonary fibrosis or as to the claim for service connection for low back disability as due to or aggravated by the service connected left knee injury residuals. However, as explained below, no such examination was required in connection with either claim. U under 38 U.S.C.A. § 5103A(d), VA's duty to assist includes providing a claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim and the claims files contains competent evidence that the claimant has a current disability and indicates that the disability may be associated with the claimant's service. The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board finds that a remand is not required and there is no duty on the part of VA to provide a medical examination or request a nexus opinion as to these matters, because as discussed in Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003), the Veteran has been advised of the need to submit competent medical evidence indicating that he not only has the disorders claimed, but further substantiating evidence suggestive of a linkage between the aforementioned claimed conditions and his active service. The file contains no post-service diagnoses of asbestosis, or the required radiological evidence indicative of asbestosis. The evidence leaves no doubt that his current COPD is, as has been diagnosed, due to his many years of smoking cigarettes and no other cause is plausibly suggested by the evidence. Moreover, as will be explained in greater detail, the Board finds that there is no credible evidence of continuity of symptomatology of respiratory symptoms which would serve to "indicate" that current COPD is related in any way to military service. Also, despite the bald assertion by the Veteran had his now service-connected left knee disability has caused, contributed to or aggravated his low back disability, there is no evidence of pelvic tilt or impairment of weight-bearing or gait due to such left knee disability that could have such an impact, as shown by voluminous VA treatment records indisputably documenting the absence of these findings. And, this is despite the isolated notation at a VA examination for rating the left knee that he had an antalgic gait. As, to this, the noted voluminous VA treatment records both before and after this VA rating examination indisputably establish that he has no pelvic tilt or impairment of weight-bearing or gait. The Board finds that there has been no evidence presented which is both competent and credible indicating that a pulmonary disability or symptoms may be associated with military service or that low back disability may be associated with service-connected left knee disability. 38 U.S.C.A. § 5103A(d); cf. Charles v. Principi, 16 Vet. App. 370 (2002). Thus, the Board finds that the information and evidence of record, as set forth and analyzed below, contains sufficient competent evidence to decide the claims and that under such circumstances, there is no duty to provide an examination or to obtain a medical opinion. 38 C.F.R. § 3.159(c)(4); see also McLendon, supra. Consequently, VA has no obligation to arrange for the Veteran to undergo examination or to obtain a medical opinion in connection with these matters. The Board remanded these matters in 2011 to obtain current VA treatment records and records of the Social Security Administration (SSA). Those records have been obtained, as have additional voluminous VA treatment records, and are now on file. The 2011 remand also noted that the RO had not considered the claim for service connection for a low back disability on the basis of whether such disability had any relationship with the Veteran's service-connected left knee injury residuals. That matter was considered and addressed in the May 2012 SSOC. Accordingly, there has been full compliance with the 2011 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (only substantial compliance with a Board remand is required). Also of record and considered in connection with the appeal is the transcript of the Veteran's December 2010 Board hearing, along with various written statements provided by the Veteran and by his representative, on his behalf. With respect to the Board hearing, it is noted that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Here, the transcript reflects that the undersigned identified the issues, and the hearing focused on the elements necessary to substantiate the claims for service connection, work conditions creating exposure to asbestos, and the onset of respiratory and musculoskeletal symptoms, as well as whether he any additional medical evidence addressing the relationship of the claimed disabilities to military service. Information was solicited regarding the Veteran's respiratory and low back disorder and why he believed these disabilities to be service-related. Therefore, not only were the issues explained in terms of the scope of the claims but the outstanding issues material to substantiating the claims were also fully explained. The Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor have they identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that the hearing is legally sufficient. The Board also finds that no additional RO action to further develop the record in connection with either claim, prior to appellate consideration, is required,. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claims, 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 the claims herein decided. 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 herein decided, 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 D.3d 534, 549 (Fed. Cir. 1998). II. Background Service records show that the Veteran served on U.S. Naval vessels from June 1978 to November 1982, including on the U.S.S. Miller from September 1980 to November 1982. A Navy Asbestos Medical Surveillance Program, Preliminary Survey, shows that to the best of the Veteran's knowledge he had not been exposed to asbestos prior to service or during service on the U.S.S. Miller. Service treatment records (STRs) show that an April 1979 enlistment examination was negative, as was an adjunct medical history questionnaire. He injured his neck, shoulder, and knee and had lacerations of his face in a vehicular accident in September 1980. A June 1983 service discharge examination was negative as to the Veteran's lungs and chest as well as his spine. A chest X-ray was normal. The Veteran was hospitalized at the Winchester Medical Center in June 2005 for bacterial bronchitis. He had previously been admitted in April 2005 for an acute exacerbation of COPD and acute bacterial bronchitis, and then followed as an outpatient. He had smoked three packs of cigarettes daily since the age of 15. The Veteran was hospitalized at the Winchester Medical Center in October 2005 for bacterial bronchitis. He had a history of underlying chronic obstructive airway disease. Chest X-rays were consistent with COPD and emphysema. The relevant discharge diagnoses were acute respiratory failure, exacerbation of chronic obstructive airway disease with bacterial bronchitis, and tobacco utilization disorder, without ongoing use. A March 2006 report for the Virginia Department of Rehabilitation Services shows that on examination for back pain and COPD, the Veteran reported having ruptured a disc in his low back in the early 1990s and his back pain since then had progressively worsened, having radiation of pain to the hip for the last 5 years. Records of the Winchester Medical Center show that X-rays in March 2006, taken for complaints of chronic back pain, revealed minimal degenerative changes. An October 2006 VA X-ray revealed mild degenerative changes of the lower thoracic spine. VA treatment records show that in October 2006 there were assessments of COPD, oxygen dependent, and cigarette smoking. Another record reflects a history of chronic low back pain. In November 2006 it was reported that the Veteran had chronic COPD and had been on medication for a long time. Also in that month there was an assessment of pulmonary emphysema with mild fibrosis in the lung bases. A January 2007 VA chest X-ray revealed emphysema and minimal scarring of the left lung base. VA treatment records in 2006 and 2007 show that it was recommended on multiple occasions that the Veteran stop smoking. A report of a private January 2007 evaluation, for the West Virginia Disability Determination Division, it was reported that the Veteran had had back and neck pain for 25 years, due to a vehicular accident (antedating the back pain to 1982). In May 2008 the Veteran reported that he could not recall the name of the medical facility to which he had been taken immediately after his in-service vehicular accident; but he was seen afterwards at the base hospital. On VA examination in June 2008 the Veteran reported having had low back pain since his 1980 in-service injury. The diagnosis was degenerative arthritis of the lumbar spine. The examiner summarized the evidence, including the STRS, and stated that there was no documentation of any low back complaints during service from the accident nor were there any entries in his STRs related to any back condition. There was no other documentation as to his back until 2006. Current X-rays did not show significant arthritis, in contrast to X-rays of his neck which sustained most of the damage from the in-service accident. Thus, a connection or link to military service was not established. That same VA examination yielded positive medical opinions as to disabilities of the neck and left knee being related to injuries from this in-service vehicular accident. VA records in the claim file show that in February 2008 the Veteran felt that a glue that he had used in his job in prosthetics contained "toluene" which could be a pulmonary irritant. However, a physician did not feel that this exposure was the cause of the Veteran's underlying lung disease, because his illness well predated any such job exposure. In November 2008 there was a diagnosis of COPD secondary to smoking. It was noted that the Veteran had been symptomatic since 2004. He had smoked since the age of 10, although he was now down to about 1/2 pack of cigarettes per day. An October 2009 VA treatment record (in Virtual VA) states that the Veteran was receiving SSA disability benefits due to COPD from asbestos exposure and smoking. On VA examination of the Veteran's left knee in April 2010 it was reported that he had an antalgic gait. Additional VA treatment records (in Virtual VA) show that the Veteran had a slow gait due to difficulty breathing and that in 2011 he underwent gait training while using a walker. At the 2010 hearing the Veteran testified that he believed that he developed COPD and pulmonary fibrosis from serving on a naval vessels loaded with asbestosis for over three years. His respiratory problems became worse in about 2005 and had progressively worsened since then. He had no respiratory symptoms during service. In 2005 he was diagnosed with COPD. When asked if a physician had informed him that his pulmonary condition was due to asbestos exposure he stated that "[t]hat's what that fibrosis is a link." Page 6 of the transcript. He further stated that his physician had not stated that what caused his pulmonary condition but that he had read in a medical journal that fibrosis was linked to asbestos. Page 7. He continued to receive VA treatment for his pulmonary condition. In 2005 he had performed electrical work but to his knowledge he was not exposed to asbestos after service. As to his low back, the Veteran testified that he was in an automobile accident in 1980 which injured his knee, neck, and low back. Initially, he testified that he had not continuously had low back problems since that time but as he had gotten older his low back had become worse. Upon further questioning by his service representative he stated, in response to a direct question about continuous symptoms, that he had had continuous low back pain since the in-service injury. Page 9. He had first sought treatment for his low back in 2000. He also believed that his now service-connected left knee caused him to put more strain on his low back. Page 10. The Veteran's voluminous VA treatment records reflect repeated entries that his gait was normal. A June 2010 decision of the SSA Appeals Council found the Veteran was disabled due to COPD, from any cause, since May 2006. A January 2012 VA treatment record (in Virtual VA) noted that the Veteran walked and turned normally. There was no ataxia and Romberg's test was negative. He used a walker to carry an oxygen tank. III. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1311; 38 C.F.R. § 3.303. 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). However, not every manifestation of joint pain or cough during service will permit service connection for arthritis or pulmonary disease first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). Certain conditions, such as arthritis will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. A chronic disease, listed at 38 C.F.R. § 3.309(a), shown during service or within one year of service discharge is presumed to be of service origin and subsequent manifestations, however remote, will be service-connected unless clearly shown to be due to inter-current cause. To be shown as a chronic disease, there must be a combination of manifestations to identify the disease and sufficient observation to establish chronicity, as distinguished from merely isolated findings or a diagnosis which merely includes the word "chronic." For a chronic disease to be shown during service or in a presumptive period means that it is "well diagnosed beyond question" or "beyond legitimate question." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b) (2013). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, supra. Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence is competent when a condition can be identified by a layperson. See 38 C.F.R. §§ 3.159(a)(1) and (2) (defining competent medical and lay evidence) and 3.307(b) (as to chronicity and continuity of symptoms lay evidence should describe material and relevant facts observed and not merely conclusions based upon opinion). Lay evidence may, in some circumstances, establish a medical diagnosis, causation or etiology, i.e., when a layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009) (overruling the broad holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007) that competent medical evidence is required when the determinative issues are either medical etiology or a medical diagnosis); see also King v. Shinseki, 700 F.3d 1399 (Fed.Cir. 2012) (confirming that Davidson, Id., overruled the broad holdings noted above in Buchanan, Id., and Jandreau, Id.). A. COPD With Pulmonary Fibrosis For asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. 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 since have been included in VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate claims for service connection for a lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). M21-1t provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)). In this regard, the M21-1 provides the following non-exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, Part VI, par. 7.21(a)(1) & (2). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work 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 roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, Part VI, par. 7.21(b)(1). In addition, the M21-1 notes that, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos. See M21-1, Part VI, par. 7.21(b)(2). Next, the Board notes that the M21-1 provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21-1, Part VI, par. 7.21(c)); the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1, Part VI, par. 7.21(b)(2)); and exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (Id.). As to the Court, it has held that the M21-1 did not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); Also see Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993); Ashford v. Brown, 10 Vet. App. 120 (1997). Therefore, in claims for service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to his disability was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In VAOPGCPREC 04-2000 (April 13, 2000), VA's General Counsel held, in relevant part, as follows: M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but nonetheless need to be discussed by the Board in all decisions; the first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and the development criteria it lays out must be followed by the agency of original jurisdiction; and M21-1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. In this case, there is no evidence of pre-service or post-service exposure to asbestos. The Veteran's post-service employment in electrical work is not listed by the M21-1 as having a higher incident of asbestos exposure. See M21-1, Part VI, par. 7.21(b)(1). With the above facts in mind, the Board concedes that the Veteran's extensive work onboard naval ships in the military resulted in exposure to asbestos insulation, consistent with the M21-1. Further it is conceded that as little as one or two months working onboard a naval ship could have exposed him to enough asbestos to cause problems years later. The evidence shows there is a diagnosis of COPD, as well as pulmonary fibrosis. However, the M21-1 does not list COPD as one of the asbestos-related diseases. See M21-1, Part VI, par. 7.21(a)(1) & (2). On the other hand, pulmonary fibrosis is listed as being possibly caused by asbestos. However, the M21-1 provides that a clinical diagnosis of asbestosis requires not only a history of exposure but radiographic evidence of parenchymal lung disease. In this case, there is no radiographic evidence of parenchymal lung disease in the claim files. In other words, the Board concludes that the record on appeal does not contain radiographic evidence of parenchymal lung disease or a diagnosis of asbestosis. See M21-1, Part VI, par. 7.21(c). The October 2009 VA treatment record reflects that the Veteran is receiving SSA disability due to COPD from asbestos exposure, and the Veteran, himself, has suggested as much. However, this is incorrect. The actual SSA records show that the Veteran's primary disability is COPD but contain no reference, finding, diagnosis or comment as to the etiology or cause of the COPD, much less as being due to any exposure to asbestos. The Veteran has conceded that his respiratory problems became worse only in recent years. In this regard, the medical evidence on file relates the Veteran's current pulmonary problems to postservice bacterial infections and his many years of smoking tobacco. As these occurred many years after his service in the military ended, it cannot serve as a predicate for granting service connection. As regards any contention that current pulmonary disability is related to service, not only are the STRs negative for pulmonary disability but the record as a whole is devoid of contemporaneous evidence thereof for many years. Also, in light of his well-documented smoking, no lay such assertions alone, provide a basis for allowance of the claim. The matter of medical etiology upon which this claim turn is within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137 -38 (1994). As the Veteran and his representative are laypersons without 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. At the 2010 hearing the Veteran stated his respiratory symptoms became worse about 2005, and by implication had such symptoms prior thereto. He has not testified or otherwise provided details as to the nature of such respiratory symptoms and, significantly, he specifically testified that he had not had respiratory symptoms during his military service. Since he did not have respiratory symptoms during service, there can be no continuity of symptomatology which relates back in time to his military service. Moreover, on July 22, 1998, the President signed the "Internal Revenue Service Restructuring and Reform Act of 1998." Pub. L. No. 105-206, 112 Stat. 685, 865-66 (1998) (codified at 38 U.S.C.A. § 1103 (West Supp. 2002)). This law prohibits service connection for death or disability resulting from an injury or disease attributable to the in-service use of tobacco products, as follows: Notwithstanding any other provision of law, a veteran's disability or death 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 for purposes of this title on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran's service. 38 U.S.C.A. § 1103(a) (1998) (emphasis added). [The new law applies to claims, as here, filed after June 9, 1998.] For all the foregoing reasons, the Board concludes that this claim for service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as there is no probative evidence supporting a finding that any current COPD or pulmonary fibrosis is related to service. , that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 - 56 (1990). B. Low Back Disability It is undisputed that the competent evidence shows that the Veteran now has current low back disability. However, as to contentions of Veteran and his representative that the Veteran's low back disability is related to service, specifically the same injury that caused the now service-connected residual facial scarring and disabilities of the cervical spine and left knee, no such lay assertions alone, provide a basis for allowance of the claim. The matter of medical etiology upon which this claim turn is within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137 -38 (1994). As the Veteran and his representative are not shown to be other than laypersons 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), Hence, the lay assertions in this regard have no probative value. Moreover, arthritis of the lower spine is not shown until many years after service and the arthritis is degenerative in nature and, thus, is not traumatic arthritis. See 38 C.F.R. § 3.303(B) (joint pain during service alone does not permit service connection for arthritis first clearly shown years later). Indeed, as to direct and presumptive service connection, the Board gives greater weight to the opinion expressed by the 2008 VA examiner. Unfortunately, that opinion does not support the claim for service connection on a direct or presumptive basis. That examiner reviewed the claim file and noted that there was no evidence of low back disability during service and, in fact, no documentation of back disability until 2006. Moreover, X-rays did not show significant arthritis in the lumbar spine, in contrast to X-rays of his neck which sustained most of the damage from the in-service accident. Moreover, as to post-service continuity of symptomatology, while it is clear that the Veteran now has arthritis of the lumbar spine, and competent lay evidence continuity of symptomatology may be used to establish a nexus with such a chronic disease, (see Walker, supra) ., during the hearing, the Veteran initially denied having had continuous low back pain since service, although at the hearing he later stated the opposite. This significantly diminishes the probative value of his testimony as to having continuous symptoms. In 2007, when the Veteran was seeking compensation, and not simply treatment, a private clinical evaluation noted that he reported having had back pain for 25 years. Such a history would antedate the symptomatology to military service, i.e., about 1982. On the other hand, the other probative postservice clinical evidence, when the Veteran was actually seeking treatment (and not compensation), only antedates the back pain to a time years after military service when he ruptured a disc in the 1990s. Thus, the Board finds that the Veteran's history related when seeking treatment is of greater probative value and, as such, his other contradictory history of having had symptoms of continuous back pain since military service lacks credibility. This is consistent with the opinion of the 2008 VA examiner who found that the arthritis in the lumbar spine was not as severe as the arthritis of the cervical spine, such that the cervical spine arthritis was attributable to in-service trauma, particularly in light of the in-service clinical records of cervical spine treatment. With respect to the whether current low back disability, including lumbar arthritis, was caused or aggravated by the Veteran's service-connected left knee disability, the Veteran's lay testimony is simply not competent to establish such a nexus. This is because such a relationship is not one as to which lay evidence is competent inasmuch as it relates to a physiological process which is beyond the competence of an untrained layperson. Moreover, while the Veteran does have some impairment of his gait, the evidence consisting of the voluminous VA treatment records overwhelmingly shows that this consists of no more than walking slowly due to difficulty breathing as a result of his nonservice-connected pulmonary disability. Other than the single notation of an antalgic gait at the time of a 2010 VA examination, conducted for the purpose of evaluating the severity of the service-connected left knee disorder, the voluminous VA treatment records both before and after that VA examination overwhelmingly and indisputably establish that the Veteran has no pelvic tilt or any impairment in weight-bearing or gait due to any cause, including the service-connected left knee disability. For all the foregoing reasons, the Board concludes that the claim for service connection for low back disability, including arthritis, must be denied. . In reaching this conclusion, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as there is no competent, probative evidence supporting a finding that any current low back disability, including lumbar arthritis, is medically-related to service, or was caused or is aggravated by the service-connected left knee disability, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, , 1 Vet. App. at 53 - 56. (CONTINUED ON NEXT PAGE) ORDER Service connection for COPD with pulmonary fibrosis, to include as due to asbestos exposure, is denied. Service connection for a low back disability, to include as secondary to service-connected left knee disability, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs