Citation Nr: 1509625 Decision Date: 03/06/15 Archive Date: 03/17/15 DOCKET NO. 12-31 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a lung disorder. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from July 1952 to June 1956. This case is before the Board of Veterans' Appeals (Board/BVA) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim in January 2014 for further development. Through his representative, the Veteran submitted additional evidence that was not before the agency of original jurisdiction (AOJ) when it last adjudicated the claim. But in a January 2015 statement the Veteran waived his right to initial review of this additional evidence by the AOJ, which was signed and submitted on his behalf by his attorney, thereby authorizing the Board to consider this additional evidence in the first instance. See 38 C.F.R. § 20.1304(c) (2014). Also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2014). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran does not have asbestosis, and his currently-diagnosed chronic obstructive pulmonary disease (COPD)/emphysema is not related to or the result of asbestos exposure or any other incident of his service. CONCLUSION OF LAW He has not established his entitlement to service connection for a lung disorder. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. See 38 U.S.C.A §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2014). A May 2012 letter provided all notice required by the VCAA. The letter duly notified the Veteran of the elements of service connection, the types of evidence that could support the claim, and the allocation of responsibilities between him and VA in obtaining the necessary supporting evidence, including relevant records and other evidence on his behalf. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b). The letter was followed by adequate time for him to submit information and evidence in response before the initial decision in this case and before readjudication of the claim in a subsequent statement of the case (SOC) and supplemental SOC's (SSOC's). See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2007); Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). Concerning the duty to assist, the Veteran's service treatment records (STRs) and service personnel records (SPRs), as well as his post-service VA and private treatment records he identified as potentially relevant have been obtained and associated with his claims file so they may be considered. Also obtained and being considered are his written arguments, several articles and excerpts from articles including webpage printouts, and an abstract of a study he submitted. See 38 U.S.C.A § 5103A; 38 C.F.R. § 3.159(c). He has not identified any other records or evidence he wants to submit or have VA obtain. The Board sees that a July 2002 VA treatment record refers to a chest X-ray performed in November 2001 that showed possible scarring secondary to asbestos. The January 2014 VA opinion also mentions a VA chest X-ray in 2001 that showed a calcified pleural plaque on the right side, and the Board assumes this was in reference to that same study. These chest X-ray findings do not appear to be in the claims file, although the VA treatment records dated since August 2000 have been obtained. Given the fact that these findings are from over a decade prior to this claim, which was submitted in March 2012, that subsequent chest X-ray findings and pulmonary function tests (PFTs) have not yielded diagnoses of asbestosis or findings interpreted as being consistent with asbestos exposure, and in view of the January 2014 VA opinion that took the November 2001 findings into account, regardless, there is no need to obtain the actual report of that November 2001 chest X-ray since there is no reasonable possibility it could help support the claim or the information reportedly on it is being acknowledged. See Golz v. Shinseki, 590 F.3d 1317, 1321, 1321 (Fed. Cir. 2010) (holding that VA is only required to obtain outstanding records "if there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits"). In this regard, there must be evidence of a current diagnosis of asbestosis or an asbestos-related lung disorder during the pendency of the claim, or close enough in time to raise a reasonable possibility that the disability existed at some point during the pendency of the claim. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 303 (2013); see also Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). A tentative chest X-ray finding dated over ten years prior to the claim does not meet this requirement, especially when there are numerous subsequent clinical findings that have not shown evidence of asbestosis or an asbestos-related lung disorder, and when the same chest X-ray findings were reviewed by a VA examiner who determined the Veteran did not have asbestosis during the pendency of this claim, as discussed below. The fact that the private treatment records and VA treatment records all consistently and uniformly show diagnoses of COPD or emphysema only reinforces a finding that the November 2001 chest X-ray report could not establish asbestosis during the pendency of this claim, especially when it was specifically considered by the VA physician who provided the January 2014 opinion. A lung scar was also detected by chest X-ray since 2001, as reflected in a July 2008 private treatment record. The scar was not interpreted as suggestive of asbestosis, however, and did not yield a diagnosis different from COPD. Rather, the report states that "COPD findings [were] seen" and proceeds to note the scar, which is yet another indication that the 2001 chest X-ray report would not add pertinent evidence to the claims file. Moreover, the July 2008 chest X-ray report is also dated several years prior to the present claim and, as already noted, the chest X-ray findings during this claim have not been interpreted as showing asbestos-related scarring. See Degmetich, 104 F. 3d at 1332. Accordingly, as there is no reasonable possibility that the November 2001 VA chest X-ray report would establish an asbestos-related lung disorder during the pendency of this claim, there is no need to obtain it, as a remand for this purpose would only delay a decision with no possible benefit flowing to the Veteran. The Court has held that they type remands are to be avoided. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of all that has occurred in the processing of this claim, including following and as a result of the Board remanding this claim in January 2014, is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate this claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not have a useful or meaningful purpose or result in any significant benefit to the claimant). A VA examination was performed in June 2012, and VA medical nexus opinions were provided in the June 2012 VA examination report and more recently in January 2014, owing to the Board's remand of this claim. 38 C.F.R. §§ 3.159(c)(4), 3.326(a). The June 2012 VA examination report and the June 2012 and January 2014 VA opinions are sufficient to make a fully-informed decision on this claim, as the examination reports present the clinical findings observed on examination, and the opinions are based on a review of the Veteran's medical history, including the June 2012 clinical findings, and are supported by specific explanations that are consistent with the evidence of record and can be weighed against any contrary opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an adequate opinion must support its conclusion with an analysis that can be weighed against contrary opinions); Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion even when the rationale does not explicitly 'lay out the examiner's journey from the facts to a conclusion'") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that the Board is "entitled to assume" the competency of a VA examiner without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). While the June 2012 VA examination report does not indicate whether the examiner reviewed the claims file, the opinion turned on a finding that absent clinical evidence of asbestosis, including pleural plaques, the Veteran's lung disorder was not related to asbestos exposure during service. As the evidence of record does not otherwise suggest that the Veteran has had asbestosis or pleural plaques during the pendency of this claim, a review of the file would not affect this opinion. In this regard, the Board is aware of references to a November 2001 chest X-ray showing a scar possibly indicative of asbestosis, as mentioned above. However, this X-ray finding is dated many years prior to the present claim, which was submitted in March 2012, and subsequent chest X-rays and PFTs were not interpreted as evidencing asbestosis, only instead COPD (emphysema, incidentally, is a type of COPD). Moreover, the physician who provided the January 2014 opinion reviewed the claims file and considered the November 2001 chest X-ray and came to the same conclusions as the prior June 2012 VA examiner. Thus, even if the examiner did not review the claims file, this did not affect the adequacy of the examination or opinion, which is consistent with the evidence of record showing that the Veteran has not been diagnosed with asbestosis and that pleural plaques have not been identified during the pendency of this claim. Finally, and in the alternative, because the January 2014 VA opinion was based on a review of the claims file, including the findings in the June 2012 VA examination report, any deficiency in the June 2012 VA opinion has been cured. In a May 2014 written response to the April 2014 SSOC, the Veteran (through his attorney) argued that the January 2014 VA opinion did not address a July 2008 private chest X-ray report from Rock County Hospital showing findings consistent with a scar or atelectasis. The Board finds that the adequacy of the January 2014 opinion was not compromised, as the physician who rendered it reviewed the claims file, including the July 2008 private chest X-ray report. Absent competent evidence that the July 2008 chest X-ray might indicate an asbestos-related lung disorder during the pendency of this claim, there was no need for the January 2014 opinion to specifically discuss it. In this regard, the July 2008 chest X-ray report reflects a diagnosis of COPD, and does not suggest that the scar was interpreted as warranting a different diagnosis or further work-up, examination, or treatment, or was indicative of asbestosis or an asbestos-related lung disease. As neither the Veteran nor his attorney has been shown to have a medical background or expertise, the bare unsupported suggestion that the July 2008 chest X-ray findings might support a finding of asbestosis or asbestos-related lung pathology does not constitute competent evidence, as this is a medical determination that is too complex to be made based on lay observation alone, and thus does not warrant further opinion. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007)( observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer). Moreover, it is dated several years prior to the present claim, which to reiterate was submitted in March 2012. See Degmetich, 104 F. 3d at 1332. As the VA and private treatment records consistently and uniformly show diagnoses of COPD and emphysema based on other chest X-rays and PFTs, including during the pendency of this claim, and as the June 2012 VA examination report also confirms a diagnosis of emphysema rather than asbestosis, there was no need for the January 2014 opinion to specifically discuss this record, as it does not reasonably support the possibility that the Veteran has had asbestosis or an asbestos-related lung disorder during the pendency of this claim. See id. Indeed, the January 2014 VA physician presumably reviewed this record and did not find it warranted a specific discussion. See Sickels, 643 F.3d at 1365-66; Acevedo, 25 Vet. App. at 293; Monzingo, 26 Vet. App. at 107. Significantly, subsequent diagnostic imaging has confirmed that the Veteran does not have lung pathology indicative of asbestosis or asbestos exposure during this claim, as shown in the VA opinions. Thus, the January 2014 VA opinion is adequate. Accordingly, the VA examination report and opinions are adequate for the purposes of this decision, and further examination or opinion is not warranted. In light of the above, the Veteran has had a meaningful opportunity to participate effectively in the processing of this claim, and no prejudicial error has been committed in discharging VA's duties to notify and assist. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010). II. Other Procedural Due Process The Board finds substantial compliance with its January 2014 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). The Board remanded the claim, in pertinent part, for a VA opinion addressing whether a relationship exists between the Veteran's emphysema and asbestos exposure during service. The January 2014 opinion fully addresses this issue. Moreover, the opinion reflects that all pertinent evidence was reviewed, including the evidence in the claims file, any records contained in Virtual VA not available in Compensation and Pension Record Interchange (CAPRI) or Automated Medical Information Exchange (AMIE), and the studies discussed in an October 2013 statement submitted by the Veteran's representative, as instructed by the Board. The physician rendering the opinion was not instructed to discuss or address any of these studies or any other evidence of record specifically, but simply to review them. Thus, it was not the physician's task to discount or address any one item of evidence, but rather to provide an opinion with a supporting explanation informed by a review of the Veteran's medical history and any other pertinent evidence of record. As discussed below, the opinion provides sufficient information and explanation to weigh it against the studies submitted or referenced in support of the claim. The Board also finds, as discussed below, that the literature submitted or quoted by the Veteran does not compromise or conflict with the physician's essential rationale such that the physician needed to account for this evidence specifically. As the VA opinion states, mainstream medical literature does not support a causal relationship between asbestos exposure and emphysema, but rather shows a much more likely cause of the Veteran's emphysema, namely his extensive history of smoking tobacco. This explanation is specific to the facts of the Veteran's case and adequately addresses the articles submitted, which also lack probative value for other reasons with respect to supporting a causal relationship between asbestos exposure and COPD/emphysema, as explained below. Accordingly, the Board finds that there has been substantial compliance with its remand directives. See Stegall, 11 Vet. App. at 271; D'Aries, 22 Vet. App. at 105. III. Analysis The Veteran contends that his current lung disorder was caused by exposure to asbestos during his active military service. For the following reasons and bases, however, the Board finds he has not shown his entitlement to service connection for this claimed disorder. Service connection means that a veteran has a current disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or "nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). The Board has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Allday v. Brown, 7 Vet. App. 517, 527 (1995). The Board must assess the credibility and weight of the evidence, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's lung disorder has been diagnosed as COPD and/or emphysema, as consistently reflected in VA and private treatment records dated since 2000, as found on examination in the June 2012 VA examination report, and as confirmed in the January 2014 VA opinion based on a review of the Veteran's medical records. Conversely, the preponderance of the evidence shows the Veteran has not had asbestosis at any point during the pendency of this claim. To the extent there have been past clinical findings suggesting the possibility of asbestosis or asbestos-related lung pathology, such findings have not been reproduced on diagnostic testing or imaging during the pendency of this claim and have never led to a diagnosis of asbestosis or an asbestos-related lung disorder. Specifically, a June 2002 VA treatment record reflects a diagnosis of COPD and notes that a chest x-ray performed in November 2001 showed "possibly scarring secondary to asbestos [sic]," although it was also noted that the possible scarring might be related to a heart condition. A March 2005 VA treatment record reflects that the Veteran was seen to go over chest x-ray findings, and it was noted that he had prior asbestos exposure during service. According to this record, the chest x-ray showed a nodular opacity that was interpreted as being "probably a vessel." A comparison with prior films was recommended to rule out a subtle lung nodule. The Veteran was diagnosed with stable COPD. A July 2008 private treatment record also reflects a chest x-ray report interpreted as showing COPD. The report states that bibasilar strandy and patchy densities were identified and interpreted as being most consistent with a scar or atelectasis. No effusion was seen. The impression was "[f]indings as described above," suggesting that the scar or atelecstasis did not warrant a diagnosis other than or in addition to COPD, and was not found significant enough to warrant further work-up, examination, or treatment. This record is also dated several years prior to the March 2012 date of claim. Apart from the July 2002 VA treatment record referencing a November 2001 chest x-ray which "possibly" showed scarring related to asbestos, no subsequent clinical findings have been interpreted by any medical professional as indicative of asbestosis or an asbestos-related lung disorder. The VA and private treatment records, which include a number of chest x-rays, all uniformly show diagnoses of COPD or emphysema, and make no mention of asbestosis or of any findings interpreted as being indicative of asbestos-related pathology. The June 2012 VA examination report reflects that based on the findings revealed by a current chest x-ray and pulmonary function test, both performed in June 2012, the Veteran did not have asbestosis. The examiner explained that asbestosis would be shown by pleural plaques on x-ray. The examination report further reflects that the Veteran denied any current diagnosis of asbestosis. The January 2014 VA opinion also shows that the physician who rendered it did not find evidence of asbestosis during the pendency of this claim. The physician noted that an x-ray performed in 2001 mentioned a calcified pleural plaque on the right side. However, the physician stated that all additional testing from then on failed to mention this finding. The physician explained that if true asbestosis was found, these test results would have continued over time. Because they had not, the significance of the calcified pleural plaque on the right side in 2001 "remained unknown," since "multiple subsequent and very specific tests did not show this again." This finding is consistent with the evidence of record, which does not reflect findings of pleural plaques since 2001. Accordingly, the Board finds that a diagnosis of asbestosis has not been established during the pendency of this claim. Even if the 2001 x-ray findings suggested the possibility of asbestosis at the time, there must be competent evidence of asbestosis during the pendency of the claim, or sufficiently proximate in time as to indicate that the Veteran has had asbestosis at some point during the claim. See Romanowsky v. Shinseki, 26 Vet. App. 303 (2013); McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). No such evidence is of record. Rather, the competent and probative evidence in the form of the VA opinions affirmatively shows that the Veteran does not have asbestosis. Accordingly, service connection cannot be established for asbestosis. See Shedden, 381 F.3d at 1166-67 (holding that entitlement to service connection requires, among other things, evidence of a current disability); see also Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (upholding VA's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes). The preponderance of the evidence weighs against a relationship between the Veteran's COPD or emphysema and asbestos exposure during active service. In the July 2012 VA examination report, the examiner noted the Veteran's history of in-service asbestos exposure. However, the examiner concluded that the Veteran's lung condition was less likely than not caused by asbestos exposure, as he had emphysema rather than asbestosis as shown in the pulmonary function test and chest x-ray. The examiner explained that asbestosis would appear as pleural plaques on x-ray showing evidence of asbestos exposure. The examiner concluded that the Veteran's emphysema was more likely due to his history of smoking for many years. In this regard, the Board notes that a February 2004 VA treatment record shows that the Veteran reported a history of smoking a pack per day for many years, and had just quit smoking the year before. A March 2007 VA pulmonary consultation record reflects that the Veteran reported a history of smoking two packs per day for sixty years, and that he had quit four years earlier. His history of smoking is also documented in other VA treatment records. The January 2014 VA opinion also found against a relationship between the Veteran's emphysema/COPD and asbestos exposure. The physician who rendered the opinion defined COPD as a group of diseases that cause airflow blockage and breathing-related problems, including emphysema, chronic bronchitis, and in some cases asthma. The physician stated that a review of current "reliable" medical literature, including from the National Institute of Health (NIH), the Mayo Clinic, and the Center for Disease Control (CDC), showed that asbestos exposure does not cause COPD. The physician observed based on this review that long-term exposure to lung irritants that damage the lungs and the airways is usually the cause of COPD, and that in the U.S. the most common such irritant was cigarette smoke, and noted that pipe, cigar, and other types of tobacco smoke also can cause COPD, especially if the smoke is inhaled. Breathing in secondhand smoke, air pollution, chemical fumes, vapors, or dust from the environment or workplace, respiratory infections, and genetic factors also could contribute to COPD, according to the physician. The most significant risk factor for COPD, however, was long-term cigarette smoking. The opinion states that the risk of COPD increases with the number of years of smoking and the number of packs of cigarettes. The January 2014 physician observed that there was no reliable medical information or literature specifically stating that asbestos exposure causes COPD, and noted that "mainstream articles" did not show any specific indications of asbestos exposure increasing the risk of emphysema. He noted an excerpt from a webpage at asbestos.com, affiliated with the Mesothelioma Center, that was cited by the Veteran in an October 2013 statement as support for a relationship between asbestos exposure and COPD, but found that this was not a reliable source of medical information as the website seemed closely tied with legal advocacy. In other words, he suggested that the information presented in that website was not necessarily neutral and thus not necessarily scientifically sound. By contrast, the physician stated that the sources relied on in support of the VA opinion (i.e., from the CDC, NIH, and Mayo Clinic) were reliable, as their findings had been proven repeatedly in the medical literature. As discussed below, the Board also finds for other reasons that the asbestos.com article has little or no probative value. The physician concluded that whether asbestos exposure increased the risk of developing emphysema was "essentially unknown," as such a relationship was not "detailed very specifically" in the medical literature. Moreover, in the Veteran's case, the physician found that asbestos exposure was not related to his current emphysema, as the Veteran's "very long and extensive smoking history [was] the cause of his emphysema," which was "clearly shown in the medical literature." The June 2012 and January 2014 VA opinions are highly probative, as they represent the informed conclusions of medical professionals based on a review of the Veteran's medical history and the clinical findings of record, and are supported by thorough explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning); Prejean v. West, 13 Vet. App. 444, 448 (2000) (holding that the Board may determine the probative value of medical opinions based on their detail and persuasiveness, and the physicians' access to a veteran's medical records). Therefore, they carry significant weight in the Board's determination. See Caluza, 7 Vet. App. at 506. The Board finds that the articles excerpted or submitted by the Veteran do not necessarily support a causal relationship between his COPD/emphysema and asbestos exposure, and do not counterbalance the June 2012 and January 2014 VA opinions in terms of evidentiary weight. In an October 2013 statement, the Veteran quoted an article from the Mesothelioma Center website, asbestos.com, stating that "[b]ecause asbestos was widely used at many military and other industrial sites, COPD patients may have inhaled these fibers among others that contributed to their condition." However, the same excerpt clarifies that "[a]sbestos is not directly linked to COPD." Rather, "lungs weakened by COPD may be much more susceptible to additional lung damage caused by asbestos," according to the article as quoted by the Veteran. The article excerpt also states that "[v]arious scientific studies have reported a statistically significant incidence of COPD among those exposed to toxic materials such as asbestos and silica," and noted in this regard that a study of 316,729 male construction workers found "the mortality rate from COPD was more than two and a half times higher in participants who had been exposed to airborne toxins, including asbestos, than in patients who had not been exposed to occupational dust." The example of one of the "scientific studies" provided by the article, in the excerpt quoted by the Veteran, does not in fact show a "statistically significant incidence of COPD among those exposed to . . . asbestos and silica." In order to do so, the study would have to indicate that there was a higher incidence of COPD among the workers studied who were exposed to asbestos compared to those who did not have such exposure, and account for other factors that may have caused COPD instead, such as whether there was a higher incidence of smoking in those with COPD. The study, at least as summarized in this excerpt, does no such thing. Rather, if there is any meaningful conclusion at all that can be derived from its data, it is the possibility that there is a higher incidence of mortality from COPD among those exposed to asbestos and other "toxins" than those who had COPD but were not so exposed. Whether or not this datum from a limited population study provides meaningful support for a generalization that exposure to asbestos can increase the risk of mortality from COPD, as a matter of simple logic it certainly does not suggest that there was a higher incidence of COPD itself among those exposed to asbestos compared to those who were not, or that there was a higher incidence of COPD among the workers exposed to asbestos than in other male populations of a similar age not exposed to asbestos, controlling for other factors that might make the development of COPD more or less likely, such as smoking history. As discussed above, the website itself in which this study was summarized also acknowledges that "asbestos is not directly linked to COPD," according to the excerpt quoted by the Veteran. Thus, the study as described in the article does not at all suggest that asbestos exposure causes or even is correlated with the development of COPD. The Board also finds that the study as described in the article excerpt does not constitute probative evidence of a higher rate of mortality from COPD among those exposed to asbestos, or that it supports a finding that the Veteran's COPD has been worsened, or its effects made more debilitating, by his asbestos exposure. Specifically, the study, at least as summarized in the excerpt quoted by the Veteran, does not state whether other possible factors might have been at play to account for the higher mortality rate from COPD in asbestos-exposed workers, such as whether they were older than those who had not died, had other medical problems making the effects of COPD more debilitating, or had a more extensive smoking history that resulted in a more severe case of COPD, or whether those who had not died of COPD had died of other causes before the COPD could contribute to death, or whether those who had not died simply had not had COPD long enough for it to progress to such a point that it could contribute to death and, conversely, whether those who died of COPD had the disease for a longer period of time compared to those who had not died from it and, if so, whether the onset of COPD was unusually early in those workers or earlier than the non-exposed workers or the general population, taking into account age, medical history, etc. Indeed, it may have been that the number of construction workers who actually died of COPD was so small that a higher ratio of mortality in asbestos-exposed workers to workers not so exposed could not meaningfully be generalized to an overall conclusion, even a tentative one, that asbestos exposure might increase the risk of death from COPD based on the limited sample involved. If the authors of the study came to such a conclusion, it was not reproduced in the excerpt submitted by the Veteran. As explained above, if other relevant factors were at play, such as age, smoking history, other medical conditions, or genetics, it would make such a generalization or conclusion even more problematic. Indeed, it may well have been that while there was a higher incidence of COPD contributing to death in those workers exposed to "airborne toxins, including asbestos" compared to those who were not, it was the other "airborne toxins" that made the difference in this regard and potentially worsened the COPD or its effects rather than the asbestos fibers. Indeed, perhaps only one or two of the workers who died from COPD were also known to have been exposed to asbestos as opposed to other "airborne toxins." There is simply no way of telling one way or the other from this excerpt. The Board also finds it significant that the study, as summarized in the quoted article excerpt, does not state whether pleural plaques or other clinical evidence of the effects of asbestos exposure was found in the asbestos-exposed workers who died of COPD, or whether there were other clinical findings suggesting more severe pathology or pathology that could be distinguished in those workers with COPD with known asbestos exposure compared to unexposed workers with COPD. Thus, the above excerpt does not necessarily support a finding that the Veteran's COPD was aggravated, or its effects made more severe, by asbestos, as such cannot even necessarily be concluded with regard to the subjects of the cited study, at least based on the information presented in the quotation. In the alternative, even assuming that the study provides some scientifically meaningful support for the conclusion that asbestos exposure can increase the likelihood of COPD contributing to death, it is not specific enough to determine whether it is applicable to the Veteran's case as evidence that his asbestos exposure contributed to COPD, or that it is even relevant on this issue. In this regard, there is no evidence that his lungs or respiratory system were actually affected by asbestos exposure such that it aggravated his COPD or made him more susceptible to debilitation from COPD. As discussed above, the VA and private treatment records do not show pleural plaques, which the June 2012 VA examiner stated would be a sign of the effects of asbestos exposure, or other clinical findings interpreted as showing any clinically meaningful lung problems apart from COPD/emphysema during the pendency of this claim. Moreover, while it cannot be determined from the excerpt submitted what role, if any, smoking played in the workers studied in terms of a higher or lower incidence of COPD-related deaths, it is well established in the Veteran's case that he has had an extensive history of smoking and that both VA opinions found that it was his smoking that caused the COPD. Thus, when simple logic is applied to the asbestos.com article excerpt in terms of whether it supports a nexus between asbestos exposure and COPD in the Veteran's case, it clearly has little or no probative value, to the extent its findings may be relevant at all. The Veteran also submitted a printout of a webpage from MedlinePlus, a website of the NIH, which provides information on asbestosis. The webpage states, in pertinent part, that asbestosis is a lung disease that occurs from breathing in asbestos fibers, and causes "scar tissue (fibrosis) to form inside the lung." In a separate section the webpage lists COPD among "possible complications" of asbestosis As discussed above, the Veteran has not been diagnosed with asbestosis and no clinical findings of pathology of the lung related to asbestos exposure, including scar tissue or fibrosis, have been made during the pendency of this claim. The website does not state that asbestos exposure in itself causes or aggravates COPD, but rather that it can lead to other pathology, namely asbestosis or fibrosis, which in turn can be related to other complications such as COPD. Since the evidence shows that the Veteran does not have an underlying lung disorder related to asbestos exposure such as asbestosis, which is a condition predicate for a finding that his COPD was complicated by such, this article does not support a relationship between the Veteran's in-service asbestos exposure and his COPD or emphysema. Finally, the Veteran submitted an abstract of an article titled "Emphysema findings associated with heavy asbestos-exposure in high resolution computed tomography of Finnish construction workers." The abstract states that "[a]sbestos fibers are known to cause lung fibrosis, but their role in emphysema is unclear." A study using high resolution CT scans of "600 smoking construction workers with an asbestos-related occupational disease" (emphasis added) led to the conclusion that "emphysema was more common when workers had asbestosis or were heavily exposed to asbestos (insulators), but due to confounding factors the causative role of asbestos needs further study" (emphasis added). In essence, this abstract shows that a limited population study of construction workers with asbestosis or heavy exposure to asbestos supported a possible correlation between asbestosis or asbestos exposure and emphysema, but that other factors that may have caused the development of emphysema instead among the population studied prevented a scientifically sound conclusion that asbestos actually could cause or play a role in the development of emphysema based on the data obtained. Indeed, the abstract indicates that many of the construction workers studied already had an "asbestos-related occupational disease" such as asbestosis (emphysema was clearly not defined as an "asbestos-related occupational disease" since that was the very relationship in question) and thus it would not be directly applicable to the facts of this case, as the Veteran does not have an "asbestos-related occupational disease." This abstract is actually in keeping with and supports the January 2014 VA opinion. Like this abstract, the January 2014 VA opinion states that the role of asbestos in the development of emphysema is unclear or unknown, and that current mainstream medical knowledge from reliable sources shows that there are other well established high risk factors for the development of COPD, especially smoking, and thus that the Veteran's extensive smoking history was much more likely the cause of his COPD. Consequently, this abstract lacks probative value as support for a relationship between the Veteran's COPD and in-service asbestos exposure, and does not even conflict with the January 2014 opinion. The more definitive January 2014 VA opinion, which is specific to the Veteran's case and is based on a range of medical sources with well-established conclusions that smoking is a high risk factor for COPD, carries more weight than this single study that did not yield a definitive conclusion as to a relationship between asbestos exposure and emphysema, as such was prevented by "confounding factors." The Board therefore finds that the above articles or excerpts do not place the evidence in relative equipoise regarding a relationship between the Veteran's COPD/emphysema and his in-service asbestos exposure. See Gilbert, 1 Vet. App. at 55; 38 C.F.R. § 3.102. In this regard, the benefit-of-doubt rule applies to assessments of scientific evidence or theories. Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). Thus, while the Board may consider the extent to which a scientific theory is accepted in the scientific community when evaluating the evidence of record, it cannot demand a level of acceptance greater than the level of proof required by the benefit-of-the -doubt rule. Id. As discussed above, the excerpt from asbestos.com itself states that "asbestos is not directly linked to COPD" and merely cites to a study that suggests a higher incidence of COPD-related deaths among workers exposed to various airborne toxins, including asbestos, than workers with COPD who have not been so exposed. The Board has already explained why, as a matter of simple logic, this study does not support a finding that the Veteran's asbestos exposure is related to his COPD. Similarly, the printout from MedlinePlus stating that COPD can be a complication of asbestosis does not suggest that asbestos exposure in itself, without the development of asbestosis or other asbestos-related pathology (i.e. fibrosis) as a mediating link, can cause or aggravate COPD. Thus, it does not support a relationship between the Veteran's asbestos exposure and his COPD/emphysema since he does not have asbestosis. Finally, the abstract regarding the study of Finnish workers itself acknowledges that a causal relationship could not be found based on the data collected in this study, and also suggests that many of the subjects of the study had another asbestos-related occupational disease (the population studied consisted of "600 smoking construction workers with an asbestos-related occupational disease"). At most, the articles place a relationship between asbestos exposure and COPD/emphysema within the realm of possibility. In order for the benefit-of-the-doubt rule to apply, there must be some "positive" evidence supporting the claim such that the doubt is "within the range of probability as distinguished from pure speculation or remote possibility." 38 C.F.R. § 3.102; see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (holding that a "generic statement about the possibility of a link" to service is "too general and inconclusive" to be probative (emphasis in original)); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that a physician's statement that the Veteran "may have been having some symptoms of his multiple sclerosis for many years prior to the date of diagnosis" was speculative and thus not sufficient by itself to support the claim (emphasis in original). Accordingly, the January 2014 VA opinion carries more weight than the above "treatise" evidence, as the VA opinion is more definitive, is specific to the facts of the Veteran's case, and draws on a wider range of studies and "mainstream" medical literature in support of the conclusion that the Veteran's substantial smoking history was the more likely cause of his emphysema, and that his asbestos exposure was less likely a factor. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); Cf. Sacks v. West, 11 Vet. App. 314, 317 (1998) (while treatise evidence can provide meaningful support for a claim, its probative value will be less if too general to apply to the specific facts of a case without further competent evidence). At most, the Veteran has submitted only one or two studies with very tentative findings, one having more to do with increased mortality rates rather than with causal relationships and which has little probative value for other reasons as explained above, and the other expressly concluding that it could not find a causal relationship based on the data obtained. While the Board cannot demand a level of acceptance in the scientific or medical community greater than what is required under the benefit-of-the-doubt rule, it may still weigh the treatise evidence against other evidence of record and find, as it does here, that one or two studies with tentative and/or hardly on-point findings do not outweigh a more definitive conclusion by a medical professional based on a number of sources deemed by the physician to be more reliable and to represent the "mainstream" views of the medical community. Indeed, there is no evidence in the record that a causal relationship between asbestos exposure in itself (i.e. without the development of asbestosis or fibrosis as a mediating mechanism) and emphysema has found any measure of support in the medical or scientific community. Rather, it appears from the evidence, such as the abstract discussed above and the January 2014 VA opinion, that this is an area of ongoing inquiry that has not led even to a provisional conclusion based on scientifically sound data, as suggested by the abstract's finding that "due to confounding factors [in the study] the causative role of asbestos in emphysema needs further study." The asbestos.com article submitted by the Veteran also states that "[a]sbestos is not directly linked to COPD." As neither the Veteran nor his representative has been shown to have a medical background, they are considered lay persons in the field of medicine, and thus the Board finds the VA physician's conclusions carry more weight than the lay arguments made in support of this claim. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); Madden, 125 F.3d at 1481. The January 2014 VA physician's conclusions as to which studies or sources of medical information are more reliable also carry more weight than the Veteran's lay assessment of the treatise evidence submitted by him. See id. Moreover, whether COPD may be caused by asbestos exposure is a medical or scientific determination that is too complex to be made based on lay observation alone, as indicated, for example, by the abstract regarding the study of Finnish workers, and the January 2014 VA opinion, both of which suggest that this is a matter of ongoing medical or scientific inquiry. Indeed, the study of the Finnish workers relied on diagnostic imaging. Thus, because they are lay persons in the field of medicine, the assertion by the Veteran and his representative that his COPD was caused or aggravated by asbestos exposure is not competent evidence and thus lacks probative value. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007)(observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Finally, the Board has already specifically addressed the merits of the arguments presented by the Veteran, which are mostly based on the treatise evidence discussed above, and explained in substantive terms why the June 2012 and January 2014 VA opinions carry more probative weight than the arguments and evidence submitted in support of the claim. In sum, the preponderance of the evidence weighs against a nexus between the Veteran's COPD/emphysema and in-service asbestos exposure. Thus, service connection is not established on this basis. See Shedden, 381 F.3d at 1166-67. The Veteran has not advanced any other theory of service connection. He has not stated that his COPD/emphysema or a related lung disorder manifested during or soon after active service. The service treatment records do not reflect any such findings, and the June 1956 separation examination report shows that a chest x-ray was negative or normal, and that his lungs and chest were found to be normal on clinical evaluation. COPD/emphysema is not defined as a chronic disease under 38 C.F.R. § 3.309(a) (2014), and thus the chronicity and continuity provisions of 38 C.F.R. § 3.303(b) do not apply. See 38 U.S.C.A. § 1101 (West 2014); Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2012). Moreover, because it is not a chronic disease, it is not eligible for presumptive service connection under 38 U.S.C.A. § 3.307(a) (2014). See 38 U.S.C.A. §§ 1112, 1113 (West 2014). There is no other evidence suggesting that the Veteran's COPD/emphysema manifested in service or is otherwise related to service. To the extent that his COPD/emphysema was caused by tobacco use, service connection is precluded as a matter of law. See 38 U.S.C.A. § 1103 (West 2014); 38 C.F.R. § 3.300 (2014). Accordingly, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a lung disorder, diagnosed as COPD/emphysema, is denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER This claim of entitlement to service connection for a lung disorder is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs