Citation Nr: 1442274 Decision Date: 09/22/14 Archive Date: 09/30/14 DOCKET NO. 09-38 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chronic obstructive pulmonary disease (COPD), to include chronic respiratory disease due to asbestos exposure. 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 June 1965 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2011 the Veteran presented testimony in support of his appeal at a Board hearing presided over by the undersigned. A transcript thereof is on file. In December 2011 the Board denied service connection for tinnitus and denied reopening of a claim for service connection for bilateral hearing loss. At that time the Board remanded the claim for service connection for COPD, to include chronic respiratory disease due to asbestos exposure. A December 2012 rating decision granted service connection for a dysthymic disorder, claimed as post-traumatic stress disorder (PTSD) with anxiety and depression, which was assigned an initial 70 percent disability rating, all effective May 18, 2011, but the Veteran had not initiated an appeal from this decision. In addition to the paper claims file, there are paperless, electronic claims files, (Virtual VA) and Veterans Benefits Management System (VBMS) associated with this appeal, a review of which does not reveal anything pertinent to the present appeal. FINDINGS OF FACT COPD is first shown years after active service and it is unrelated to any incident, including exposure to various chemicals and fumes, or event during service; and the Veteran does not have asbestosis. CONCLUSION OF LAW The criteria for service connection for COPD, to include chronic respiratory disease due to asbestos exposure, are not met. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.103(c), 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA must inform a claimant of information and medical or lay evidence (1) needed for claim substantiation; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice was intended to be provided prior to an initial unfavorable decision, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In service connection claims the notice applies to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notice must include information that a disability rating and an effective date for an award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's July 2007 letter advised the Veteran of the foregoing elements of the notice requirements, including matters pertaining to exposure to asbestos. Quartuccio v. Principi, 16 Vet. App. 187. In addition, the duty to assist the Veteran has also been satisfied in this case. The service treatment records (STRs) as well as identified private and VA outpatient treatment (VAOPT) records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was also provided with a VA examination in conjunction with the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 83 - 86 (2006). The Board may assume the competence of a VA examiner and the adequacy of a VA medical examiner's opinion unless either is challenged. Here, the adequacy of the medical opinion is challenged on the basis that the examiner was not a specialist in pulmonary diseases but, rather, was certified in family practice. Remand of the case is requested for an opinion by a physician certified in treatment or evaluation of pulmonary diseases. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010). For the reasons discussed below the Board finds that the VA opinion is adequate for adjudication. 38 C.F.R. § 3.103(c)(2) requires that a presiding hearing officer fully explain the issues and suggest the submission of evidence that may have been overlooked but does not require preadjudication of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496 (2010). Neither the Veteran nor 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. Even if not all elements required for claim substantiation are explicitly set forth at a hearing, if those matters are developed by VA, there is no indication of any outstanding additional evidence or information, and particularly if any VA examination was conducted to address such matters, the purpose of 38 C.F.R. § 3.103(c)(2) if fulfilled. See Bryant v. Shinseki, 23 Vet. App. 488, 498-99 (2010). And all this was in substantial compliance with the Board remand. Stegall v. West, 11 Vet. App. 268 (1998). Lastly, the Board has thoroughly reviewed all the evidence and while obligated to provide supporting reasons and bases, it does have to discuss, in detail, all of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380 - 81 (Fed. Cir. 2000). This analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran must not assume that any evidence not explicitly discussed has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Principles of Service Connection Service connection is warranted for disability incurred or aggravated during active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for any disease initially diagnosed after 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 a cough during service will permit service connection for pulmonary disease first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). The competence, credibility, and probative (relative) weight of evidence, including lay evidence, must be assessed as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both. 38 U.S.C.A. § 1154(a); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(2). Lay evidence, including mere conclusory or generalized lay statements that a service event or illness caused a current disability, is not competent as to more complex medical questions. 38 C.F.R. § 3.159(a)(1); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009). VA may rely on an absence of an entry in a record as evidence that the event did not occur, but only if the matter is of the kind that ordinarily would have been recorded. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) ("[E]vidence of a prolonged period without medical complaint can be considered") and Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (taking into account the lack of treatment or complaints of the condition for an extensive period of time); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008) (more probative weight to VA opinions which relied, inter alia, on a record showing disability symptoms did not begin until decades after service). Consideration may also be given to the earliest medical records stating when symptoms began or when treatment for symptom first began, or both. Reasonable doubt is to be favorably resolved and is a substantial doubt, i.e., within the range of probability as distinguished from pure speculation or remote possibility, and exists when there is an approximate balance of positive and negative evidence. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against any claim, it necessarily means that there is no approximate balance, and the benefit of the doubt rule is not applicable. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed.Cir. 2001). Analysis As to 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 the veteran's claim 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). As to the M21-1, it 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) and (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.). However, the United States Court of Appeals for Veterans Claims (Court) has held that the M21-1 does 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). Also VA's General Counsel, in VAOPGCPREC 04-2000 (April 13, 2000) has held, in relevant part, as follows: M21-1, Part VI, par. 7.21(a), (b), and (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, the STRs are negative for chronic pulmonary disease. On the other hand, the Veteran's military records reflect that while in the United States Navy he served aboard an aircraft carrier. His DD 214 shows that his military occupational specialty (MOS), in an equivalent civilian occupation, was an electrician working on aircraft. In the February 2014 Informal Hearing Presentation the Veteran's accredited representative noted that the Veteran's Naval Enlisted Code (NEC) was that of an Aircraft Systems Mechanic. Service medical and personnel records confirm duties aboard the U.S.S. Yorktown (CVS-10). At the April 2011 hearing the Veteran testified that during service, while shipboard, his bunk was underneath asbestos insulated pipes. From this the Board concludes that the Veteran may well have been exposed to asbestos during his military service. On the other hand, there are no chest X-rays or computerized tomographic (CT) scans indicating any parenchymal changes of the lungs which would indicate damage due to asbestos. In fact, after repeated examinations and evaluations over the years, there has never been a diagnosis of asbestosis. The evidence shows that the Veteran had postservice employment as a police officer and as a medical technician. These postservice occupations are not listed by the M21-1 as having a higher incident of asbestos exposure. See M21-1, Part VI, par. 7.21(b)(1). Also, the evidence shows there have been diagnoses of bronchitis and asthmatic bronchitis. However, the M21-1 does not list bronchitis or asthmatic bronchitis as asbestos-related diseases. See M21-1, Part VI, par. 7.21(a)(1) and (2). Moreover, while the M21-1 provides that a clinical diagnosis of asbestosis requires, not only a history of exposure but radiographic evidence of parenchymal lung disease, no radiographic evidence of parenchymal lung disease appears in the claim's file. At the April 2011 hearing the Veteran testified that his military duties required him to work in close proximity to military aircraft in the closed, confined quarters of a naval warship. The Board concedes that the Veteran was most likely exposed to various fumes during his military service. On the other hand, it is undisputed that the Veteran has a long history of smoking. A February 2011 VA outpatient treatment (VAOPT) record shows that the Veteran had had emphysema resulting in a period of two-month hospitalization with multiple complications including septicemia, septic shock, cardiac arrhythmia, and respiratory failure. He had smoked cigarettes daily since the age of 18, i.e., for 41 years, with frequent attempts to quit. Using Chantix he had quit in July 2007 and again in 2008 but had resumed smoking in 2008 and 2010. Other VAOPT records in 2011 indicate that he no longer smoked cigarettes but did smoke cigars. The Veteran has submitted private and VA medical records demonstrating a current diagnosis of chronic respiratory disease, and the diagnoses include chronic bronchitis as well as COPD. Records of the Peace River Medical Center have now been obtained and demonstrate treatment for multiple physical problems, including respiratory problems. In this case there are conflicting medical opinions. In weighing conflicting medical opinions, matters for analysis of medical opinions include, but are not limited exclusively to, (1) why cited studies are or are not persuasive, (2) additional risk factors other than those alleged as causative, and (3) whether the claimed condition has manifested itself in an unusual manner, and an opinion's probative value is diminished when it is (4) ambivalent, (5) based on an inaccurate or assumed factual premise shown to be incorrect, (6) based on an examination of limited scope, or (7) the basis for the opinion is not stated. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Struck v. Brown, 9 Vet. App. 145, 155 (1996); Owens v. Brown, 7 Vet. App. 429, 433 (1995). 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, 448-9 (2000). The absence of a claim file review by a private physician is not required and does not diminish the probative value of a private medical opinion; and conversely a claim file review by a VA examiner does not, by itself, lend greater probative value to an opinion or diagnosis. Rather, citation to relevant clinical history lends probative value. It is the factually accurate, fully articulated, and sound reasoning that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-04 (2008). See also Gardin v. Shinseki, 613 F.3d 1374 (Fed.Cir. July 2010) (affirming the holding in Nieves-Rodriguez, Id., that a private physician's opinion is competent evidence even without review of service treatment records). In an April 2011 written statement from his private treating physician, R. R. B., D.O., it was stated that: [The Veteran] is a regular patient. . . that I have been seeing for three years. He recently was hospitalized at Peace River Regional Medical Center from December 5th [2010] to February 4th [2011] for. . . significant exacerbation of his underlying chronic obstructive pulmonary disease [by severe pneumonia]. [The Veteran's] significant underlying chronic obstructive pulmonary disease. . . in our opinion, was aggravated and possibly caused to some degree by exposure to certain environmental contaminants. [The Veteran] worked [at a] naval shipyard and on numerous aircraft carriers where he was exposed daily to fuel exhausts and fumes from fuel, as well as other diesel/aviation fumes. He also states he was exposed to asbestos, and that he slept right underneath it. Asbestos has been well known to cause lung disease, including lung cancer. At this time [the Veteran] exhibits no evidence of any carcinomas from this. However, this is to state that in our opinion [the Veteran's] underlying lung disease is partially caused by exposure to these aviation and diesel fumes, as well as the exhaust and the asbestos. He has suffered damage because of this. On the other hand, the Veteran was afforded a VA pulmonary examination in January 2012 at which time the examiner reviewed the claim files. The Veteran reported that he had had daily in-service exposure, 12 hours a day, to aircraft fumes. He had also slept in a top bunk, just below some insulation in his sleeping quarters onboard ship. He had had a chronic cough during service but had ignored it. Years later it increased, at which time he saw a private physician and was told he had chronic bronchitis and COPD. After a clinical presentation at the 2012 VA examination, the examiner confirmed the diagnosis of COPD. The examiner opined that the COPD was less likely than not incurred in or caused by military service. The rationale was that the Veteran was not diagnosed with COPD until 2003. When he had had a VA pulmonary consultation in 2008 there had been no mention of any toxic exposure related lung disease. He had a long history of smoking which was known to cause COPD. His service records were negative for treatment of chronic lung problems or any episodes of acute toxic exposure treatment. Also, his service separation examination in October 1969 was negative as to findings as to his lungs or any history of acute or chronic toxic exposure episodes or symptoms. His recent 2011 chest X-rays and CT scans were negative for asbestos-related changes. The examiner stated that the long interval between exposure and the Veteran's diagnosis of COPD, medical literature, and the examiner's clinical experience supported the conclusion the Veteran's current respiratory condition was the natural progression from years of smoking and not related to his military service between June 1965 to October 1969. In the February 2014 Informal Hearing Presentation it was stated that: Chronic obstructive pulmonary disease (COPD) is a lung disease that usually refers to chronic bronchitis and emphysema. Patients have difficulty breathing, and over time, the symptoms get worse. The main cause of COPD is smoking, but environmental toxins like pollution, chemical fumes, or exposure to asbestos and other toxic workplace dust can also trigger the disease. http://www.asbestos.com/asbestos/copd.php "Many people with asbestos-related diseases have only recently come to medical attention because the latent period varies from 10 to 45 or more years between the first exposure and development of a disease." See: M21-MR, IV.ii.1.H.29.a. The Veteran and his representative contend that the above medical treatise and the statement regarding the latency of asbestos-related disorders in VA Adjudication Procedures manual made doubtful the recent VA examiner's conclusion that the Veteran's condition was due to smoking. Rather, as indicated in the materials quoted, the development of COPD has been attributed to exposure to asbestos, just as the Veteran alleges. However, what the Veteran and accredited service representative have studiously failed to mention is the uncontroverted fact that there is virtually no radiological evidence of asbestosis. Indeed, the private medical opinion has less probative value for this same reason, i.e., it fails to address the obvious fact that there is no radiological evidence of asbestosis. Similarly, the private medical opinion makes no mention of the impact of the Veteran's very long history of smoking tobacco. It also fails to account for the many years after the Veteran's in-service exposure to fumes from fuel as well as exhaust of spent fuels and his eventual development of chronic respiratory disease. Moreover, unlike the 2011 VA examiner, there was nothing in the private medical opinion which suggested that medical literature had either been reviewed or otherwise supported the opinion expressed. To the extent that it is asserted that the 2012 VA examiner's opinion is of less probative value than the private medical opinion, the Board draws attention to the analysis below as to why the former is of greater probative value than the latter. In the February 2014 Informal Hearing Presentation it was stated that: In Monzingo v. Shinseki, 26 Vet.App. 97, 109, (2012), the concurring opinion provided a definition of an adequate medical opinion. It states, "Moreover, our caselaw is quite clear that an expert opinion is adequate if it (1) is based on a correct factual premise, Reonal v. Brown, 5 Vet.App. 458, 461 (1993), (2) is based on pertinent medical history and examinations, D'Aries v. Peake, 22 Vet.App. 97, 104, (2008); Green v. Derwinski, 1Vet.App. 121, 124 (1991) (same), (3) is not plagued by ambiguity or inconsistency, Daves v. Nicholson, 21 Vet.App. 46, 51 (2007), and (4) provides sufficient detail to fully inform the Board on its medical question, D'Ares and Green, both supra [sic]. However, in this case there is nothing which indicates that the 2012 VA examiner relied upon an incorrect factual basis. Rather, that examiner relied upon pertinent medical history and an examination of the Veteran at that time. Moreover, the examiner's opinion did not contain any ambiguity or inconsistency, and none has been pointed out by the Veteran or his representative. Furthermore, the 2012 VA examiner's opinion provided sufficient detail and information to fully inform the Board as to the basis for the opinion. In the February 2014 Informal Hearing Presentation the qualifications of the 2012 VA examiner were called into question by the accredited service representative. It was asserted that the examiner was a specialist in Family Medicine and Board certified in the field of Family Practice. In support of this, citation was made to a website. However, the Board's attempts to obtain information from that website were unsuccessful. On the other hand, other attempts by the Board to obtain such information lead to the conclusion that the accredited service representative is correct in this regard. It is asserted that because the 2012 VA examiner was not shown to have any particular expertise, experience, training, or competence in commenting on respiratory disorders that an absence of such competence resulted in his opinion having no more probative than the appellant's lay assertions that there is such a connection. The Board disagrees. Here, the question of etiology of the Veteran's chronic respiratory disability is a complex medical question, as to which the Veteran is not competent to offer an opinion, any more than are the other laypersons who have submitted statement in support of his claim. On the other hand, the 2012 VA examiner has the medical education and training, and by his own assertion, the clinical experience, to render a medical opinion. Thus, to conclude that the 2012 VA examiner's opinion is the same as that of the Veteran and the laypersons who have submitted supporting statements, would be to put that VA examiner in the same situation as such laypersons, i.e., not being competent to offer a medical opinion. Also, if in fact, the 2012 VA examiner had not had the clinical experience to render an opinion (and he reported that he did), it would be expected that the examiner would have stated this. However, he did not and, to the contrary, specifically reported that he did have clinical experience. Again, the 2012 VA examiner specifically stated that not only did medical literature support the examiner's opinion but that the VA examiner also had personal (using the term "my") clinical experience. Lastly, as to the Veteran's report of having had a "chronic" cough during active service, while he is competent to attest to having had a cough, the Board can give little weight to his recently related description of such a cough as having been "chronic" in nature. Again, the Board notes that by regulation not every manifestation of a cough during service will permit service connection for pulmonary disease first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). Moreover, neither the private physician's opinion nor the VA examiner's opinion suggest that any cough was of clinical significance. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for COPD, to include chronic respiratory disease due to asbestos exposure. ORDER Service connection for COPD, to include chronic respiratory disease due to asbestos exposure, is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs