Citation Nr: 1800846 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 13-09 138A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active naval service from June 1973 to June 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In connection with this appeal, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at the RO in August 2017. A transcript of the hearing has been associated with the record. FINDING OF FACT The probative evidence of record does not demonstrate that the Veteran's COPD was related to his military service, to include his in-service exposure to asbestos. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD, to include as due to in-service asbestos exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (b) (2012); 38 C.F.R. § § 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his long-standing history of COPD was caused by his active service. Specifically, the Veteran asserts that he developed COPD as a result of his exposure to asbestos while serving on board a Navy ship as a fireman and boiler technician. The Veteran described working in areas of the ship where he was exposed to asbestos because of the ship's pipes, bulkheads, and machinery, which were all covered with the substance. In the November 2010 rating decision, the RO conceded exposure to asbestos. In the alternative, the Veteran suggests that he developed COPD as a result of a positive purified protein derivative (PPD) test from 1977. The Veteran's service treatment records (STRs) did not show any complaints of, treatment for, or diagnosis of COPD during active service. While the Veteran sought treatment for upper respiratory infections (URIs) while in active service and complained of a productive cough, all URIs were acute and transitory in nature and seemingly resolved without residuals prior to separation. At his June 1977 separation examination, the Veteran denied any tuberculosis, asthma, shortness of breath, chronic cough, or pain and pressure in his chest. Post-service medical records indicated that the Veteran did in fact have a positive PPD test in 1977, which also seemingly resolved without residuals. The Veteran was diagnosed with COPD in January 2008. His private treatment provider noted that emphysematous change was present throughout both lungs, and was more severe in the upper lungs. Mild scarring was noted in the lung bases, but old granulomatous disease with calcified granulomata was found bilaterally. In October 2009, the Veteran's private treatment provider indicated that he had been a smoker for approximately 15 years, smoking one pack per day, and having quit in his late 30s. The treatment provider's impression was that the Veteran had severe COPD, primarily emphysema type, with a bronchospastic component. Later in October 2009, the Veteran saw another private treatment provider who noted that the Veteran's first lung problems occurred in 1977 when he returned from the Navy with tuberculosis, indicated by the appearance of a mild scar and a positive PPD, but that active tuberculosis was never diagnosed. The Veteran was treated with isoniazid for 12 months. No further lung disabilities are noted until 2003, when the Veteran had a pneumothorax, and indicated that his breathing problems began at that time. The same smoking history was noted once more. In October 2010, the Veteran underwent a VA examination. The Veteran stated that he believed his breathing problems originated from his exposure to asbestos during active service. The examiner confirmed the prior diagnosis of COPD, severe, emphysema type and noted that the Veteran's pulmonary function tests (PFTs) were consistent with emphysema type COPD. Additionally, the examiner noted that while the Veteran had a positive PPD test, no tuberculosis was noted. The examiner opined that it was less likely than not that the Veteran's COPD was caused by his active service, or his asbestos exposure, rationalizing that the Veteran's PFTs showed obstruction in the small airways and trapping of air within the lungs, which was typical of emphysema. The examiner went on to say that this type of obstruction was not seen in people with asbestos injury in the lungs, since that was known for causing a scarring process that showed up obviously on chest x-rays after 20 years and caused a constriction of the lung tissues which would give different results than the PFTs previously described. Based on a longitudinal view of the record, the Board finds that service connection for COPD is not warranted as the Veteran has not demonstrated a causal relationship between the conceded in-service asbestos exposure and COPD. In arriving at that finding, the Board finds that the October 2010 VA medical opinion is highly probative. A medical opinion will be considered probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Lastly, a medical examiner is presumed competent in the absence of evidence to the contrary. Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009). In this case, it is clear that the examiner fully reviewed the Veteran's medical history and records and provided fully articulated opinions supported by reasoned analysis. Moreover, the opinion did not use speculative language but, rather, provided the degree of certainty required for medical nexus evidence. The examiner addressed the Veteran's history of smoking, his history of a positive PPD test, and the Veteran's assertions. However, instead of speculating that the Veteran's COPD was due to his many years of smoking, the examiner supported his opinion with medical X-ray evidence demonstrating that the Veteran's symptomatology was consistent with COPD with tobacco use and not asbestos exposure. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Furthermore, the examiner's findings are seemingly consistent with medical evidence provided by the Veteran himself, wherein his private treatment providers diagnosed his COPD as emphysema type, indicating a connection to tobacco use. Therefore, the Board finds the examiner's conclusions as to whether or not the Veteran's COPD developed from asbestos exposure in service highly probative. The Board acknowledges the Veteran's contentions regarding his development of tuberculosis, and the statement from his mother stating that he had tuberculosis upon discharge. While, the Board finds that the Veteran is competent to speak to the symptoms of COPD or tuberculosis that he experienced, he is not competent to provide medical conclusions to complex medical questions, such as the etiology of a respiratory disease, or diagnose himself with such. Jandreau v. Nicholson, 482 F.3d 1376 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). Because the evidence does not indicate that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning his COPD or tuberculosis, he is not competent to comment on the etiology of his respiratory disability. Given the complexity of the medical issues at hand, the medical evidence of record is given significant weight in regard to the nexus between the Veteran's COPD and his military service. Simply, the medical evidence of record does not support the Veteran's contentions. Thus, the VA medical opinion outweighs the lay statements from the Veteran regarding etiology of this condition. Based upon the above, the Board concludes that most competent and credible evidence of record weighs against a finding that the Veteran's COPD was related to his military service, to include in-service exposure to asbestos. 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, the claim must be denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for COPD is denied. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs