Citation Nr: 1636998 Decision Date: 09/21/16 Archive Date: 09/27/16 DOCKET NO. 09-07 131 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to service connection for lung disability, including chronic obstructive pulmonary disorder (COPD) and pulmonary fibrosis, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Maxwell D. Kinman, Attorney WITNESSES AT HEARING ON APPEAL Appellant, the Veteran and his brother-in-law ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to September 1983 with additional service in the U.S. Army Reserve from August 1989 to May 1999. The Veteran died in November 2012. The appellant is the Veteran's surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2008 rating decision in which the RO denied service connection for COPD. In January 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2009. In October 2010, the appellant, the Veteran, and his brother-in-law testified during a Board hearing before a Veterans Law Judge (VLJ) at the RO; the transcript of that hearing is of record. In April 2011, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC denied the claim for service connection for a lung disability, to include COPD (as reflected in a March 2012 supplemental SOC (SSOC)) and returned this matter to the Board for further consideration. In May 2012, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107 (a)(2)(C) (West 2014) and 38 C.F.R. § 20.900 (c) (2015). In June 2012, the Board notified the Veteran that the VLJ who conducted the October 2010 hearing was no longer employed at the Board, and offered him another opportunity for a hearing before a current VLJ who would participate in the decision in his appeal, consistent with 38 C.F.R. §§ 20.707 and 20.717 (2015). In July 2012, however, the Veteran declined a new hearing and indicated his desire for his claim on appeal to be considered on the basis of the current record. In July 2012, the Board again remanded the issue in order to obtain all contemporary records and in order to afford the Veteran a new VA examination which considered both COPD and pulmonary fibrosis. The Veteran died in November 2012. Unaware of his death, the Board issued a decision dated December 7, 2012 that denied service connection for lung disability, to include chronic obstructive pulmonary disorder (COPD) and pulmonary fibrosis, to include as due to asbestos exposure. In August 2013, the Board vacated the December 2012 decision and dismissed the Veteran's appeal because of his death but remanded the substitution claim of the Veteran's wife under the provisions of 38 U.S.C.A. § 5121A (West 2014). After designating the appellant as substitute in a May 2014 rating decision, the RO continued to deny service connection for a lung disability, to include COPD (as reflected in a May 2014 supplemental SOC (SSOC)) and returned this matter to the Board for further consideration. In a September 2014 decision, the Board denied the claim on appeal. The appellant appealed the September 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2015, the Court issued a Memorandum Decision, setting aside the Board's decision, and remanding the claim to the Board for further proceedings consistent with the decision. The Board notes that, while the appellant was previously represented by the American Legion, in January 2016, the appellant granted a power-of-attorney in favor of Maxwell D. Kinman with regard to the claim on appeal. The appellant's current attorney has submitted written argument on her behalf. The Board recognizes this change in representation. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless, electronic claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. As a final preliminary matter, in August 2016 the appellant filed a claim for dependency and indemnity compensation (DIC) or a death pension (via VA Form 21-534). As this matter has not been adjudicated by the AOJ, it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Although the Veteran's and the appellant's assertions as to the Veteran's in-service asbestos exposure and exposure to chemicals and dust associate with motor vehicle repair are deemed credible and consistent with the Veteran's service, he was not diagnosed with asbestosis or other restrictive pulmonary disease, and the most persuasive medical opinions on the question of whether there existed a medical nexus between any current lung disorder and service weigh against the claim. CONCLUSION OF LAW The criteria for service connection for lung disability, including COPD and pulmonary fibrosis, to include as due to asbestos exposure, are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 2014)) 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) (2015). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. §3.159 (b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the Agency of Original Jurisdiction (AOJ) (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a May 2007 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The January 2008 rating decision reflects the initial adjudication of the claim after issuance of this letter. In a January 2009, post-rating letter, the RO provided to the Veteran general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuance of the January 2009 letter, and opportunity for the Veteran to respond, the May 2009 SSOC reflects readjudication of the claims. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service, VA, and private treatment records, Social Security Administration records, and the reports of May 2011 and August 2012 VA respiratory examinations. Also of record and considered in connection with the appeal is the transcript of the Veteran's October 2010 Board hearing, along with various written statements provided by the appellant, the Veteran, his relatives, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required. As for the Board hearing, the Board notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103 (c)(2) requires that the RO Decision Review Officer or Veterans Law Judge (VLJ) who chairs a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the Board finds that there has been substantial compliance with the duties set forth in 38 C.F.R. 3.103 (c)(2), and that the hearing was legally sufficient. Here, during the Board hearing, the VLJ identified the issues then on appeal. Also, information was solicited regarding the Veteran's experiences during active service, his current symptoms and treatment, and whether there were outstanding, pertinent medical records. The VLJ identified additional records of private and VA medical care, possible additional records of Army Reserve medical care, and examinations by the Social Security Administration as relevant to the claim and encouraged the Veteran to seek an opinion from his private physician. Therefore, not only was the issue(s) "explained . . . in terms of the scope of the claim(s) for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Although the VLJ did not explicitly suggest the submission of additional evidence, on subsequent remand, additional pertinent information and evidence was sought and obtained. The Board is also satisfied that the AOJ has complied with its July 2012 remand directives as they pertain to the claim for service connection for a lung disorder. In this regard, as directed by the Board, additional VA treatment records were requested as was sufficient information and authorization to enable the AOJ to obtain additional evidence pertinent to the claim, and the Veteran was afforded a VA respiratory examination in August 2012, with an opinion being provided by the examiner, as requested. Thus, the Board finds that the examiner and AMC substantially complied with the Board's July 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In this appeal, the Veteran asserted that he was exposed to asbestos, chemical and vehicle exhaust fumes, and particle dust associated with his work with motor vehicles during his military service. In support of his claim for service connection, the Veteran has alleged that he frequently worked with brakes and other materials which contained asbestos and harmful chemicals during his active duty service. In an April 2012 statement, the Veteran's brother-in-law noted that he was also an Army mechanic and that there was little or no ventilation or personal protective equipment used during that time in service. Hence, the Veteran asserted that his current lung disability may be attributable to such in-service exposure. The Veteran also asserted that he was treated but not hospitalized on five to six occasions for pneumonia during his active duty service. A review of the Veteran's service records, to include his DD Form 214, reflects that the Veteran was assigned the military occupational specialties (MOS) of light wheeled vehicle power generation mechanic and track vehicle mechanic. He was assigned duties in this occupation for the majority of his active and Reserve service. As such, the Veteran's documented service is consistent with his claimed in-service exposure. In a June 1997 treatment record by a private pulmonologist, the Veteran reported that he worked as a civilian as a machinist using a cutting machine on metals such as stainless steel, bronze, and copper. Initially, the Board points out, that there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA's Adjudication Procedure Manual, M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29.a (Sept. 29, 2006). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-00. VA must analyze the Veteran's claim of entitlement to service connection for asbestos-related disease under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The Adjudication Manual contains guidelines for the development of asbestos exposure cases. They indicate that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). The Adjudication Manual also acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in the manufacture and servicing of friction products, such as clutch facings and brake linings. Also noted is that the latent period varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). The Adjudication Manual provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. See also VAOPGCPREC 4- 2000 (April 13, 2000); Ashford v. Brown, 10 Vet. App. 120, 123-24 (1997) (while holding that a veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). The Board also notes that the pertinent parts of the Manual guidelines on service connection in asbestos-related cases are not substantive rules, and that there is no presumption that a veteran was exposed to asbestos in service. See Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. A Veteran's disability shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service if it resulted from injury or disease attributable to the use of tobacco products by a Veteran during active service. 38 U.S.C.A. § 1103 (a); 38 C.F.R. § 3.300. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim for service connection for a lung disorder, to include as due to asbestos exposure, must be denied. Service treatment records include the Veteran's July 1970 enlistment report of medical examination which noted normal findings in the lungs and chest. Multiple requests for treatment records for the period of the Veteran's active duty were unsuccessful. A February 1983 report of medical examination for discharge noted that the lungs and chest were normal. In the section of the report for the entry of significant or interval history, the examining physician noted only high frequency hearing loss. Records of private medical care later in 1983 are silent for any recurring respiratory symptoms. In August 1989, the Veteran was examined for enlistment in the Army Reserve. He denied any history of chronic or frequent colds, asthma, shortness of breath, or chronic cough. He noted that his only hospitalization was for a tonsillectomy as a child, and he denied any history of illness other than hearing loss. The examiner noted no lung and chest abnormalities. In a January 1994 periodic Reserve physical examination, the Veteran reported symptoms of shortness of breath, pain or pressure in the chest, and chronic cough that was noted by the examiner as "new since three months ago." The examiner noted bilateral wheezing on expiration but found the Veteran qualified for retention in the Reserve. During a September 1998 physical examination, the Veteran continued to report shortness of breath and chronic cough. The examiner noted that the Veteran had severe COPD, used oxygen therapy, and had quit smoking one year earlier. The Veteran was honorably discharged from Reserve service in May 1999. Private treatment records from Peabody Medical Associates include a January 1994 record in which it was noted that the Veteran was a smoker and had new onset emphysema with reactive airway disease. In a private primary care treatment record, a physician in this practice, Dr. A.M., noted in May 1995 that the Veteran was smoking "about a pack of cigarettes a day." He prescribed nicotine patches to assist the Veteran in stopping smoking. In September 1995, the physician noted that the Veteran did not fill the prescription and continued to smoke up to a week earlier when he had a respiratory exacerbation. In October 1995, the physician noted that the Veteran was smoking three quarters of a pack of cigarettes a day. The Veteran reported that he was once hospitalized for pneumonia but there is no mention of occupational exposures during service or in his civilian occupation. In a May 1997 treatment note, Dr. A.M. noted, "He evidently has significant obstructive lung disease, which is presumably emphysema for the most part and related to his smoking, despite his relatively young age." In June 1997, a private pulmonologist, Dr. P.K., noted the Veteran's report of having pneumonia "a few times" but was not hospitalized and provided few details. The pulmonologist noted a past medical history with no serious childhood or adult illnesses. The Veteran reported smoking one pack per day at most up until a week prior to the examination. Other than the report of metal cutting as a machinist, there was no mention of experiences in service or work on vehicles. In a follow up report in July 1997, the pulmonologist diagnosed severe COPD at a relatively young age, the cause of which was uncertain. The pulmonologist discussed several imaging studies and tests and made no mention of asbestos related findings. The Veteran was afforded a VA examination in April 2002 performed by an internal medicine physician. During his examination, the Veteran explained that he had been chronically out of breath since 1997 and was prescribed nasal oxygen for the past two and one half years. The Veteran reported that he smoked ten cigarettes a day from age thirteen until two and a half years prior, when he quit smoking. The physician diagnosed severe chronic obstructive pulmonary disease with hypoxia. The VA examiner did not provide an etiology opinion in the examination report, and there was no report or comment regarding environmental exposures. In November 2005, the Veteran sought emergency treatment at a private hospital. The attending physician noted the Veteran's report that he was still smoking a few cigarettes per day although the physician noted, "...I think he is smoking more than that." During his October 2010 Board hearing, the Veteran explained that during service he was treated for pneumonia and that he worked in the motor pool where he was exposed to exhaust, smoke and fumes, and asbestos. He explained that he came down with pneumonia several times and that he was treated with antibiotics. He further testified that he was treated with oxygen while he served in the Army Reserves. He reported being told that he had the flu while serving in the Reserves but then he was later told that he had advanced COPD. Records of primary care and outpatient treatment at a VA clinic from approximately 2007 to 2012 are of record and show ongoing monitoring of the Veteran's severe COPD. On some occasions, clinicians also referred to the obstructive disease as severe emphysema. There is no mention of occupational exposure. In a November 2010 letter, the attending family nurse practitioner, J.W., noted that the conditions the Veteran worked under during his military service had been known to be contributing factors in the cause of COPD and other lung disease. She noted that exposure to unvented exhaust and heater fumes, exposure to asbestos and other fine dust particles would definitely contribute to developing lung disease. She did not reference any medical materials to support the conclusions, and none of these observations appear in her clinical notes. On one occasion in February 2011, the Veteran was examined by the VA chief of pulmonary disease section, Dr. K.A., who noted the Veteran's report of having quit smoking in 2006 because of his disease. The physician evaluated recent pulmonary function tests and diagnosed severe obstructive defect and emphysema and recommended a consultation for a possible lung transplant. On another occasion in January 2011, a clinician noted the Veteran's reports of smoking at most six to eight cigarettes per day since age nine or ten. In May 2011, the Veteran was afforded a VA examination by an internal medicine physician. During the examination, the Veteran reported that he experienced "a lot of pneumonia" while in service but was told that he only had the flu. He also reported a longstanding history of smoking as well as a history of working during service as a mechanic in the motor pool with poor ventilation. The transcript of the Veteran's hearing, which reflects that the Veteran's testimony that he was exposed to asbestos during service, was associated with the claims file and made available to the VA examiner. The physician cited a number of previous clinical observations and test results. Based upon the Veteran's documented and reported history and findings on examination, the examiner confirmed the COPD diagnosis and found that the Veteran's COPD was less likely than not caused by or a result of the Veteran's workplace exposures during active duty service. The examiner's rationale was that the Veteran began smoking at age 13 and quit only relatively recently. He noted that workplace exposures are associated with chronic bronchitis, but not emphysema, that cigarette smoking was the most strongly associated cause of emphysema, and the Veteran smoked cigarettes for forty years. The physician noted that, given that cigarette smoking was much more highly causally related to emphysema/COPD, it was not possible to find that workplace exposures were the cause of the Veteran's current lung condition. The physician further cited as applicable to this case the article "Chronic Obstructive Pulmonary Disease" by Dr. Gerald W. Staton, Jr., which stated in part "cigarette smoking is the underlying cause of COPD in the vast majority of patients...prolonged exposure to various types of dust such as in coal mining, gold mining, textile manufacturing, and cement and steel industries associated with industrial or occupational bronchitis...[h]owever, in most studies of occupational lung disease, the effects of smoking greatly outweigh the effects of occupational exposures." In an April 2012 handwritten note on a prescription pad, a private internal medicine physician, Dr. K.R.P., noted, "Now [the Veteran] is suffering with severe COPD and pulmonary fibrosis end stage most likely caused by exposure to asbestos and smoking." In an April 2012 statement, the Veteran noted that his May 2011 VA examination lasted only ten minutes and that the examiner failed to failed to prove that thirteen years of working with asbestos and exhaust fumes were not the cause of his condition. He stated that he never smoked more than a pack of cigarettes per day at any time and when he was first diagnosed, his doctor told him he would have to have smoked over five packs of cigarettes a day for his lungs to be in the present condition. In an April 2012 VA treatment note, the Veteran's attending internal medicine physician, Dr. R.S., noted the Veteran and his wife's reports that during service part of his job was to use an air hose to blow asbestos out of brakes on motor vehicles and that towards the end of his military career he used an oxygen tank. The Veteran and his wife reported that the Veteran smoked about 2 cigarettes per day for about thirty years and that he stopped smoking approximately ten years prior. In a later April 2012 treatment note, Dr. R.S. stated that the Veteran's lung disability was more likely as not caused by or a result of his work place and other exposures during military service. He stated that, although the Veteran started smoking at age 13, he never smoked more than six to nine cigarettes a day and he reduced his smoking around 1989 while working in the Reserves while trying to quit and that he stopped smoking altogether around 2002 or 2003. Dr. R.S. additionally noted that the Veteran was treated for pneumonia while on active duty, which also contributed to his current lung problems. The Veteran was afforded a second VA examination in August 2012. Another VA internal medicine physician, Dr. L.B., noted a review of the claims file. Following examination, the VA examiner determined that the Veteran had emphysema which was caused by cigarette smoking. She further noted that it was less likely as not caused by or a result of workplace or other exposures during military service. She explained that the Veteran started cigarette smoking at age thirteen and quit relatively recently. She referred to the same reference article that the May 2011 VA examiner cited and noted that generally, workplace exposures could be associated with chronic bronchitis but not with emphysema. She further noted that cigarette smoking was the most strongly associated definite cause of emphysema and that the Veteran reportedly smoked cigarettes for forty years. Regarding asbestos exposure, the VA examiner noted that there was no diagnosis of asbestosis as related to the Veteran's terminal lung condition. She noted that asbestosis was a restrictive lung disease whereas COPD was an obstructive lung disease and that the Veteran did not have asbestosis or restrictive lung disease. She added that medical literature showed that the characteristic lung function abnormalities in patients with asbestosis included the absence of airflow obstruction by spirometry whereas the Veteran's pulmonary function test showed marked obstruction which was inconsistent with asbestos related disease, she noted that airway obstruction generally reflected exposure to cigarette smoke. She further stated that fibrosis was not a predominant finding in the Veteran's recent CT scan but that fibrosis of the lung tissue can also occur with COPD noting that "many studies have found increased collagen in the lungs of patients with mild COPD indicating that fibrosis exists." The examiner stated that fibrosis would be considered part of the progression of the Veteran's emphysema/COPD. In June 2014, the appellant asserted that the claim for service connection had been denied on the basis of uninformed opinions by doctors who never met the Veteran and whose underlying job is to save VA money. She noted that motor pool working conditions were hazardous until very recently. Although the Veteran was a cigarette smoker, he was exposed to exhaust fumes, chemicals, asbestos, and other environmental irritant and pollutants in grossly large quantities that caused his COPD. She noted that the Veteran had been complaining about trouble breathing and was misdiagnosed by military clinicians as having flu. The Army improperly kept assigning him duties in the motor pool even while he was using oxygen. She noted that VA physicians were not pulmonary specialists and attributed his disease to smoking because of the severity of the disease when the Veteran was actually a light smoker. In contrast, a pulmonary specialist, Dr. K.P, and two primary care specialists, Dr. R.S. and Dr. J.W. all stated that the military environmental exposure was much worse than smoking. The credibility of lay statements may not be refuted solely by the absence of corroborating medical evidence but this is a factor. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). As a preliminary matter, the Board finds that the appellant, the Veteran, and his family member are competent and credible to report on his observed smoking habits, respiratory symptoms, and in the case of the fellow soldier, the working conditions in military motor pools. The Board also notes that the appellant is identified in the records as a nurse's assistant and is considered to have some medical training in terminology and symptom recognition, but not in the diagnosis and etiology of disease. The Board assigns less probative weight on the assertion that the Veteran was a lifelong light smoker as it is inconsistent with his own reports to clinicians starting with the onset of symptoms in 1994-5 when his own clinicians, presumably based on the Veteran's reports, note up to a pack per day smoking that he tapered but did not stop until many years after diagnosis and use of oxygen. As there are no records to the contrary, the Board accepts reports of several episodes of pneumonia but finds that misdiagnosis is not credible because no chronic residual symptoms were reported by the Veteran or noted by examiners in military physical examinations in 1983 and 1989. The Board also accepts the reports that motor pool work was often done without adequate ventilation but also notes that the Veteran was a Reserve volunteer. He was discharged from the Army when found not physically qualified. In analyzing the evidence of record, the Board finds that the preponderance of the evidence indicates that the Veteran's lung disorders, primarily COPD/emphysema, are caused by his long history of smoking, as opposed to exposure to either asbestosis or fumes. The record clearly shows that, prior to his death, the Veteran was diagnosed with severe obstructive respiratory disease, specifically COPD and emphysema, that first manifested after active service in approximately 1994. Although the Veteran's active duty military occupation likely included exposure to asbestos particles during vehicle break repairs, there is no clinical evidence, imaging studies, testing or diagnoses of any form of restrictive respiratory disease including any residuals of exposure to asbestos. Therefore, the first element of service connection is met but is limited to his COPD and emphysema. The record shows that the Veteran worked in military motor pools with inadequate ventilation so that the second element is met. The dispositive issue is whether the Veteran's respiratory disability was caused by this work while on active duty, notwithstanding his similar work in the Army Reserve or as a civilian machinist using metal cutting tools. As discussed above, there are seven competent but conflicting opinions of record which address whether the Veteran's lung disorders are due to his service. The Board finds that all are competent to assess the etiology of the Veteran's disease. All are identified as qualified in internal medicine except for family nurse practitioner J.W. Only two physicians, private Dr. P.K (1997) and VA Dr. K.A. (2011) were identified in the records as pulmonary specialists. The Board rejects the appellant's assertion that probative weight should not be assigned to VA clinicians because they are either uniformed or financially motivated as she provided no evidence to support the allegations. Notably, nurse J.W. and Dr. R.S. offered opinions in support of the claim and are both VA employees. To summarize, in May 1997 Dr. A.M related the Veteran's lung conditions to his history of smoking, and in July 1997 Dr. P.K. stated that the cause of his conditions was uncertain. A November 2010 note from nurse practitioner J.W. stated her belief that the Veteran's exposure to asbestos, dust particles and chemicals used in the motor pool would definitely be a contributing factor to developing lung disease. The Veteran's May 2011 and August 2012 VA examiners opined that the Veteran's lung disorders are less likely than not due to the Veteran's exposure to workplace fumes and chemicals and more likely due to his history of smoking, and Dr. K.R.P. opined in April 2012 that the Veteran's severe COPD and pulmonary fibrosis was most likely caused by exposure to asbestos and smoking. Finally, in April 2012, Dr. R.S. related the Veteran's lung disorders to in-service exposure to dust, fumes and asbestos. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not, however, be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board finds the opinions of the May 2011 and August 2012 VA examiners most probative. Significantly, in their opinions, the VA examiners cite and apply the medical literature in support of their findings and are shown to have reviewed the entirety of the Veteran's claims file. While not dispositive, here, a review of the claims file did allow the VA examiners to make a better informed decision regarding the etiology of the Veteran's conditions. Moreover, and significantly, as shown by the August 2012 VA examiner, the Veteran's lung conditions appear to be inconsistent with asbestosis and asbestosis is simply not shown. However, as cited by the VA examiner, the Veteran's most prevalent conditions, COPD/emphysema, are most commonly associated with smoking, and the Veteran is shown to have a long history of regular smoking for several decades. Regarding the issue of pulmonary fibrosis, the August 2012 VA examiner clearly stated that the condition was related to COPD, as opposed to being a separate disorder. The VA examiners are shown to have considered all claimed in-service exposure, the medical records, the Veteran's own testimony and medical literature pertaining to the most common causes of the Veteran's lung disorders. By contrast, the opinions offered in support of the claim-those by nurse practitioner J.W., Dr. K.R.P, and Dr. R.S-do note suggest that the Veteran's entire medical history as pertaining to the Veteran's lung disorders was reviewed, nor do either J.W. or Dr. K.R.P. provide a detailed rationale for their opinions. Nurse practitioner J.W. did not even address the smoking history. Dr. K.R.P. attributed the Veteran's disease to smoking and asbestos although the Veteran had no clinical indications of restrictive disease or residuals of exposure to asbestos leaving smoking as the only remaining cause in his opinion. Additional private records including the Veteran's attending physician dated from 1995 to 1997 note that the cause of the Veteran's lung disorders was smoking or that the cause was uncertain. The Board notes that, where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). The Board finds however that, when taken as a whole, the medical evidence weighs in favor of a finding that the Veteran's lung disorders were more likely due to smoking than due to his in-service exposure to asbestos, fumes and dust. The Board further notes that, while the opinion of Dr. R.S. is supported by stated rationale, his conclusions appear to be based in part on the Veteran's own reports of his smoking history which is noted consistent with the evidence of record. Significantly, it is noted that, on one occasion in April 2012, the Veteran reported that he smoked about two cigarettes a day for 30 year; later in the month , he reported that he smoked between six and nine cigarettes a day and had quit ten years prior, around 2002. The evidence of record includes, however, multiple reports that the Veteran often smoked about a half a pack to a pack of cigarettes a day for several decades, and the earliest treatment notes suggest he smoked even more than that. Further, November 2005 treatment records from Rome Memorial Hospital indicate that the Veteran was still smoking a few cigarettes a day, and the Veteran's physician stated his belief that the Veteran was in fact smoking more than he claimed, indicating that the Veteran may have quit smoking at some time prior to 2005, but resumed smoking thereafter. Inasmuch as Dr. R.S.'s opinion relies, at least in part, upon the Veteran's underreporting of his smoking history, the opinion is therefore accorded little, if any, probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229 (1993)) (holding that the Board is not bound to accept medical opinions that are based upon an inaccurate factual premise). See also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). For the reasons expressed, the Board finds that the medical opinions of the May 2011 and August 2012 VA examiners outweigh the less detailed and less supported opinions of the VA nurse practitioner J.W., the Veteran's private physicians and Dr. R.S. Accordingly, the Board finds that the preponderance of the competent, probative evidence weighs against the claim. The Board further finds that lay assertions as to medical relationship or nexus do not provide persuasive support for the claim. The matter of the medical etiology of current lung disability upon which this claim turns is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent to report matters within his or her own personal knowledge, and, in certain situations, to comment on presence of a simple condition, such as one observed or otherwise perceived through the senses, a lay person is not competent to provide evidence as to more complex medical questions. Id; see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As a nurse's assistant, admittedly, the appellant has some medical knowledge. However, neither she, the Veteran, his family members, nor any representative is shown to have, or to have had, the requisite medical training and expertise to competently render a probative (persuasive) opinion on the complex matter at issue in this appeal. Notably, whether any respiratory symptoms the Veteran experienced in service or following service are in any way related to the diagnosed COPD prior to his death requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). As indicated, the most probative medical opinions of record indicate that the Veteran's COPD was not related to service, to include any asbestos or other chemical exposure therein. As a final point, the Board acknowledges that the medical evidence of record suggests that the Veteran's lung disability presented an unusual disability picture. Indeed, the evidence indicates that the Veteran developed a lung disability at a relatively young age. As discussed above, however the Board has found the February 2011 and August 2012 VA examiners' opinions most persuasive on the question of the medical relationship, or nexus, between such disability and any incident of his service. In this regard, both examiners acknowledged and discussed the fact that the Veteran developed a lung disability at a relatively young age. Indeed, the May 2011 VA examiner noted that the Veteran developed his lung disability "a long time ago." The examiner also acknowledged the fact that the Veteran was placed on supplemental oxygen at 44. Likewise, the August 2012 VA examiner acknowledged that the Veteran developed difficulty breathing some 25 years prior and he was diagnosed with COPD 16 years earlier. Despite this, however, both examiners still concluded that the lung disability was not related to service even after considering the fact that the Veteran may have developed his lung disability relatively early in life. For all the foregoing reasons, the Board finds that the claim for service connection for a lung disability, to include COPD, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for a lung disability, including COPD and pulmonary fibrosis, to include as due to asbestos exposure, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs