Citation Nr: 18140999 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 17-23 534 DATE: October 9, 2018 ORDER New and material evidence has not been received and the request to reopen the claim of entitlement to service connection for coronary obstructive pulmonary disease (COPD), to include as due to asbestos exposure, is denied. A disability rating in excess of 10 percent for tinnitus is denied. A rating in excess of 60 percent, for the period prior to July 1, 2018, and a compensable rating for the period beginning July 1, 2018, for bilateral hearing loss, to include whether the reduction from the 60 percent rating to a noncompensable rating was proper, is denied. Service connection for emphysema, to include as due to asbestos exposure, is denied. FINDINGS OF FACT 1. Since the last final, the June 2013 rating decision, no new, material evidence received to reopen a claim for service connection for COPD. 2. A rating in excess of 10 percent is not available for tinnitus under VA law. 3. For the entire appellate period, the Veteran’s bilateral hearing loss has been manifested by a puretone threshold average of no higher than 48 decibels (dB) for the right ear and 71dB for the left ear, with speech discrimination scores, using the Maryland CNC word list, of no lower than 64 percent for the right ear and 20 percent for the left ear. 4. The preponderance of the evidence is against a finding that the Veteran’s emphysema was a result of an event, illness, injury, or due to asbestos exposure in service. CONCLUSIONS OF LAW 1. The criteria for reopening a service connection claim for COPD, based on the new and material evidence standard, have not been met. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The 10 percent disability rating for tinnitus is the maximum rating available under VA law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.87, Diagnostic Code (DC) 6260. 3. The criteria for a rating in excess of 60 percent, for the period prior to July 1, 2018, and a compensable rating, for the period beginning July 1, 2018, for bilateral hearing loss, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.105, 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. 4. The criteria for service connection for emphysema, to include as due to asbestos exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1960 to November 1964. This appeal comes before the Board of Veterans’ Appeals (Board) frorating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In July 2017, the Veteran testified at a personal hearing before a Decision Review Officer at the Boston, Massachusetts RO. An informal conference report on this hearing is of record. New and Material Evidence for Service Connection Claim for COPD VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a). That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last, final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 510 – 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran’s service connection claim for COPD was last denied in a June 2013 rating decision. In this decision, the RO denied the claim because it found that the that evidence did not show that the Veteran’s COPD occurred in or was caused by service. The RO further determined that there was no evidence showing a diagnosis of asbestosis. Since the Veteran did not perfect an appeal of the decision within one year, this rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since this June 2013 rating decision, additional evidence that that has been submitted includes, lay statements from the Veteran, an article to support his claim, as well as a VA examination report for COPD. In August 2013, the Veteran contended that he was in the Coast Guard on active duty from November 1960 to November 1964, and that during that time, he was in a boiler room working with asbestos daily, as a boiler tech, for three years. He additionally indicated that he was shipped for isolation duty in Alaska, in a power plant, where he also worked with asbestos. He explained that since leaving the military, his livelihood has been working in the heating ventilation and air condition field for over fifty-eight years. See August 2013 Statement in Support of Claim. In April 2015, he reiterated that he was diagnosed with moderately severe COPD (and emphysema), and stated that he was a boiler technician in the United States Coast Guard for four years. He additionally indicated that he “sniffed” asbestos, in powder form, by hand, with water to repair asbestos in the boiler room and engine way spaces. He further asserted that his condition is service related. See April 2015 Notice of Disagreement. Additionally, in support his service connection claim for COPD the Veteran submitted an article from a law firm. Specifically, this article summarily indicates that veterans who served between 1940 and 1970 are at a risk for developing asbestos-related illnesses due to a high rate of asbestos exposure. The article further purports that these veterans are at the highest risk of developing lung ailments due to their exposure to asbestos, as a result of the frequent use of asbestos in the construction of navy ships in which many veterans worked in the ships’ boiler rooms and engine rooms, which consisted of tight-fit, poorly ventilated areas where asbestos fibers floated freely and were inhaled. See June 2015 Correspondence. However, even though all three of the aforementioned pieces of evidence are new, as they had not been previously submitted and considered by the RO, none are material because they do not serve as evidence of the unproven element from the June 2013 rating decision, specifically, evidence of an in-service occurrence, injury or illness related to COPD. Rather, the additional evidence, collectively, reiterated the Veteran’s statements that he has a respiratory disorder due to his claimed in-service exposure to asbestos and the general prevalence of asbestos exposure and asbestos-related illnesses in some veterans. This new evidence does not constitute objective evidence that the Veteran was exposed to asbestos during service or that his claimed disorder is related to his military service, to include the claimed in-service hazardous exposure. Moreover, this evidence fails to show that the Veteran was clinically diagnosed with asbestosis. Additionally, evidence submitted since the June 2013 rating decision, also includes an August 2017 VA examination for COPD. In this VA examination report, however, the VA examiner opined that the Veteran’s COPD was less likely than not (less than 50 percent or greater probability) incurred in or caused by asbestos exposure. As the rationale for this opinion, the VA examiner, in pertinent part, summarily explained that the Veteran has a diagnosis of COPD and does not have an asbestos-related disease. Additionally, he explained that the Veteran’s COPD was caused by the long term toxic exposure to tobacco. See August 2017 VA examination for Respiratory Conditions. Although new, this additional evidence is not material because it does not help to substantiate the denied claim by addressing the basis for the June 2013 rating decision, namely the lack of a nexus between the Veteran’s claimed disorder and his military service. Instead, the VA opinion further supports the conclusion that the Veteran’s COPD was neither incurred in or caused by service and that there is no evidence of an asbestos-related disease. Accordingly, the Board finds that none of the additional evidence submitted raise a reasonable possibility of substantiating this issue, and thus, since new and material evidence has not been submitted, the service connection claim for COPD remains closed. Initial Increased Rating for Bilateral Hearing Loss Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Tinnitus The Veteran has been assigned a 10 percent rating for his service-connected tinnitus, effective March 25, 2015, under DC 6260. A rating higher than 10 percent for the Veterans tinnitus may not be assigned as a matter of law. Tinnitus is rated under DC 6260, which provides for a single 10 percent rating, whether or not it affects both ears. 38 C.F.R. § 4.87, Note (2). Furthermore, since a higher rating must be denied as a matter of law, the benefit-of-the-doubt rule does not apply. See Sabonis v. West, 6 Vet. App. 426, 430 (1994); 38 U.S.C. § 5107; 38 C.F.R. 3.102. 2. Hearing Loss Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100. In evaluating hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests using the Maryland CNC word list, in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. See id. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test. The horizontal rows in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See id. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. Id. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row corresponding to the percentage of discrimination and the vertical column corresponding to the puretone decibel loss. Id. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of “V” and the poorer ear has a numeric designation Level of “VII,” the percentage evaluation is 30 percent. See id. When the puretone thresholds at the four specified frequencies 1000, 2000, 3000, and 4000 Hertz (Hz) are 55 decibels (dB) or more the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. See 38 C.F.R. § 4.86(a). When the puretone thresholds are 30dB or less at 1000 Hz and 70dB or more at 2000 Hz, the rating specialist will likewise determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next highest Roman numeral. See 38 C.F.R. § 4.86(b). For his service-connected bilateral hearing loss, the Veteran has been assigned a disability rating of 60 percent for the period prior to July 1, 2018, and a non-compensable, zero percent rating for the period beginning July 1, 2018. Reductions of previous established evaluations are governed by 38 C.F.R. § 3.105. That regulation provides, in pertinent part that: [w]here the reduction in evaluation of a service-connected disability . . . is considered warranted and the lower evaluation would result in a reduction . . . of compensation payments currently being made, a rating proposing the reduction . . . will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced . . . effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Id. Paragraph (i) further provides that VA will inform the beneficiary in the advance written notice of the proposed action that he has the right to a predetermination hearing, provided that the request for such hearing is received by VA within 30 days from the date of the notice. 38 C.F.R. § 3.105(i). If no predetermination hearing is requested, final action will be based solely on the evidence of record. Id. In the present case, the Board finds, first, that the due process requirements for the reduction in question have been satisfied. The Board notes that in a December 2017 rating decision, the RO notified the Veteran that his bilateral hearing loss disability rating would be reduced to zero percent, effective July 1, 2018, served a 60 day notice of reduction of benefits to the Veteran, thereby affording him an opportunity to submit additional evidence, in support of maintaining or increasing his rating disability. The Veteran’s rating was subsequently reduced to zero percent in the April 2018 rating decision. See 38 C.F.R. § 3.105(e). The Board also finds that the provisions of 38 C.F.R. § 3.344 are inapplicable. That regulation, by its terms, applies only to ratings which have continued for long periods at the same level (five years or more). 38 C.F.R. § 3.344(c). Because the 60 percent rating for the Veteran’s bilateral hearing loss was in effect for less than five years, the provisions of 38 C.F.R. § 3.344 do not apply. Turning to the merits of the claim, a January 2017 audiologic examination reflects the following findings on audiological examination. Puretone thresholds for the right ear, in dB, were 35dB at 1000Hz; 40dB at 2000Hz; 40dB at 3000Hz; and 65dB at 4000Hz, with an average of 45dB. Puretone thresholds for the left ear, in dB, were 65dB at 1000Hz; 65dB at 2000Hz; 70dB at 3000Hz; and 85dB at 4000Hz, with an average of 71dB. Speech audiometry revealed speech recognition ability of 64 percent in the right ear and 20 percent in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.85, the puretone threshold average of 45dB and a speech discrimination of 64 percent in the right ear results in Level V for the right ear. Likewise, applying the above results to the Table VI chart, a puretone threshold average of 71dB and a speech discrimination of 20 percent in the left ear results in Level XI for the left ear. Applying these results to the Table VII chart (with the left ear being the “poorer” ear), a Level V for the right ear, combined with a Level XI for the left ear, results in 40 percent rating evaluation. However, under 38 C.F.R. §4.86, when the puretone threshold at each of the four frequencies (1000, 2000, 3000, 4000) is 55dB or more, the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral, shall be determined. Each ear will be evaluated separately. In this regard, and as indicated above, the puretone threshold at each of the four frequencies of 1000, 2000, 3000, and 4000 for the left ear are 65dB, 65dB, 70dB, and 85dB, respectively, with an average puretone threshold of 71dB. Applying these results to the Table VIa chart, with the average puretone threshold of 71dB, results in Level VI for the left ear. Applying these results to the Table VII chart (with the left ear being the “poorer” ear), a Level V for the right ear, combined with a Level VI for the left ear, results in a 20 percent rating evaluation. However, given that Table VI renders a higher rating result than Table VIa, the January 2017 audiologic examination is reflective of a 40 percent rating evaluation. A September 2017 VA examination report reflects that the Veteran was unable to complete testing because his behavioral responses showed poor reliability between puretone, speech detection, and speech recognition testing. Accordingly, no audiometric results were provided. A December 2017 VA examination for hearing loss reflects the following findings on audiological examination. Puretone thresholds for the right ear, in dB, were 30dB at 1000Hz; 25dB at 2000Hz; 40dB at 3000Hz; and 65dB at 4000Hz, with an average of 40dB. Puretone thresholds for the left ear, in dB, were 30dB at 1000Hz; 25dB at 2000Hz; 60dB at 3000Hz; and 70dB at 4000Hz, with an average of 46dB. Speech audiometry revealed speech recognition ability of 82 percent in the right ear and 82 percent in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.85, the puretone threshold average of 40dB and a speech discrimination of 82 percent in the right ear results in Level III for the right ear. Likewise, applying the above results to the Table VI chart, a puretone threshold average of 46dB and a speech discrimination of 82 percent in the left ear results in Level III for the left ear. Applying these results to the Table VII chart (with the left ear being the “poorer” ear), a Level I for the right ear, combined with a Level III for the left ear, results in a zero percent/noncompensable rating evaluation. An April 2018 VA examination for hearing loss reflects the following findings on audiological examination. Puretone thresholds for the right ear, in dB, were 25dB at 1000Hz; 45dB at 2000Hz; 50dB at 3000Hz; and 70dB at 4000Hz, with an average of 48dB. Puretone thresholds for the left ear, in dB, were 35dB at 1000Hz; 55dB at 2000Hz; 60dB at 3000Hz; and 75dB at 4000Hz, with an average of 56dB. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 84 percent in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.85, the puretone threshold average of 48dB and a speech discrimination of 88 percent in the right ear results in Level II for the right ear. Likewise, applying the above results to the Table VI chart, a puretone threshold average of 56dB and a speech discrimination of 84 percent in the left ear results in Level II for the left ear. Applying these results to the Table VII chart (with the left ear being the “poorer” ear), a Level II for the right ear, combined with a Level II for the left ear, results in a zero percent/noncompensable rating evaluation. 1. Period Prior to July 1, 2018 After a review of all pertinent evidence of record, the Board finds that a rating in excess of 60 percent is not warranted for the period prior to July 1, 2018. As reflected above, the evidence of record reflects that the highest disability rating for the Veteran’s bilateral hearing loss is from a January 2017 audiometric examination, which indicates that the Veteran’s bilateral hearing loss disability reflects a 40 percent disability rating. In this regard, the Board finds that a rating higher than the 60 percent that the Veteran has already been assigned for this appellate period is not warranted. 2. Period Beginning July 1, 2018 After a review of all pertinent evidence of record, the Board finds that a compensable rating for this period is not justified. As noted above, the Veteran’s last two audiometric examinations, of record, from December 2017 and April 2018, rendered a zero percent rating for the Veteran’s bilateral hearing loss. Accordingly, in a May 2018 appellate brief, the Veteran asserts that his symptoms have worsened over time, justifying a higher rating; and that the severity of his service-connected bilateral high frequency sensorineural hearing loss has such an abnormal impact on his daily life, that it requires an excess of 60 percent, as his condition does not accurately reflect his true disability. Despite these assertions, however, there are no treatment records, or any evidence, such as lay statements from others or the Veteran himself, for example, which have identified any specific unique factors or special circumstances to warrant or support this asserted abnormal impact. Therefore, absent evidence of unique, special circumstances, a higher, compensable rating for the service-connected bilateral hearing loss, for the period beginning July 1, 2018, is not warranted. The preponderance of the evidence does not show that the Veteran’s bilateral hearing loss warranted a compensable rating from July 1, 2018, forward. As such, the weight of the evidence was against the continued assignment of the prior 60 percent rating, and the reduction in the evaluation for bilateral hearing loss, from 60 percent to noncompensable (zero percent), was proper. The Veteran is also not entitled to an increased rating during any of the periods at issue. Finally, the Board has considered whether separate, additional ratings are available under separate diagnostic codes for the service-connected bilateral hearing loss during both appellate periods. However, the evidence of record does not show that the Veteran has any other related, diseases of the ear, such as, for example, chronic suppurative otitis media, mastoiditis or cholesteatoma (or any combination); otosclerosis; or peripheral vestibular disorders, under DCs 6200, 6201, 6202 and 6204. In this regard, all pertinent disability ratings have been contemplated and/or assigned for the Veteran’s service-connected bilateral hearing loss disability. Therefore, based on the foregoing, the preponderance of the evidence is against an increased rating in excess of 60 percent for the period prior to July 1, 2018, and an increased, compensable rating for the period beginning July 1, 2018, for the Veteran’s service-connected bilateral hearing loss. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, this claim must be denied. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). The Veteran asserts that his diagnosis of emphysema is a result of asbestos exposure. See June 2015 Correspondence/NOD. He further asserts that his emphysema was caused by his experience with working in boiler rooms for 5 to 12 hours a day, mixing by hand, raw asbestos powder in big buckets, with water, no gloves, allowing fumes to be inhaled and applying by hand to boiler, daily. See September 2016 Appeal to Board of Veterans’ Appeal. The medical evidence of record reflects a current diagnosis of emphysema. See e.g. November 2014 VA Opinion on the Presence of a Diagnosis of Mesothelioma (reflecting an impression of emphysema). The Veteran’s service treatment records (STRs) do not reflect any complaints or treatment for any respiratory illnesses that could be potentially related to emphysema or asbestos exposure, although other maladies and complaints are identified. See e.g. March 1964 Narrative Summary (reflecting a diagnosis of tonsillitis, noting that his condition improved, but that he was unfit for duty); see also November 1964 Report of Medical Examination for Separation from Service (reflecting identifying body marks, described as a tattoo of a skull in the left upper arm and a tattoo of a heart in the left lower arm; and an assessment of “post-op pilonidal cystectomy, NCD” (not considered disabling)). The Veteran was afforded a VA examination for respiratory conditions in August 2017. A VA examiner determined that it is less likely than not (less than 50 percent probability) that the Veteran’s emphysema was incurred in or caused by asbestos exposure during service. See August 2017 VA Medical Opinion. As the basis and rationale for his opinion, the VA examiner indicated that the Veteran has had multiple evaluations as a result of his known asbestos exposure. He then explained that a diagnosis of asbestosis requires the demonstration of interstitial fibrosis on imaging. The VA examiner further explained that while the Veteran’s imaging showed pulmonary emphysema, there has been no evidence of pleural plaques. Furthermore, in support of this conclusion, he referenced the Veteran’s medical history by discussing findings from the Veteran’s treatment notes and a medical opinion. Specifically, he explained that a pulmonologist, in a May 2013 treatment note, concluded that the Veteran had a diagnosis of “obstructive disease with COPD from smoking”, and that no evidence of asbestos-related disease was on the computed tomography (CT) examination; that a June 2013 treatment note concluded that there was no evidence to suggest that the Veteran had an asbestos-related respiratory disease; and that a November 2014 opinion on the presence of a diagnosis of mesothelioma also concluded that there was no diagnosis of asbestosis or a related plaque disease. After reviewing all of the pertinent medical evidence of record, the Board finds that the August 2017 VA examination is the most probative evidence of record, which is dispositive of this claim. This opinion provides an adequate, detailed rationale, which provides a clear explanation of why the Veteran’s diagnosis of emphysema is not related to asbestosis. As the VA examiner explained, even though the Veteran has emphysema, he does not have a diagnosis of asbestosis, and he does not have any asbestos-related respiratory disease. Thus, it logically follows that since emphysema is a respiratory disease, the VA examiner has ruled out a diagnosis of asbestos-related emphysema. Moreover, in a September 2017 addendum to the August 2017 VA examination, the same VA examiner clarified that in a July 2012 treatment note, a physician, who diagnosed the Veteran with COPD, cited to a CT report from 2006, which had suggested a pleural plaque, and accordingly, she suggested further imaging. The VA examiner additionally explained that further imaging was conducted, and per a May 2013 note from another physician, the conclusion was “CT chest – extensive bullous emphysema, no signs of asbestos related disease[,] including no pleural plaques”, and that therefore, the note from the July 2012 physician did not change the August 2017 opinion that there is no evidence of any asbestos-related disease. Therefore, in light of the Veteran’s assertions, that he had pleural plaques on his left lungs, despite competent to the extent that he was reporting what a medical professional told him, the Board finds that although asbestos exposure is conceded, there is no medical evidence of asbestos-related emphysema, as the medical evidence of record lacks any findings of pleural plaques in his lungs. Furthermore, while the Board acknowledges that the lack of evidence of an in-service diagnosis, treatment or complaints of symptoms related to a disability is not necessarily dispositive of a claim, the Veteran has not submitted any other evidence, such as, for example, lay statements from fellow service members; medical opinions or statements from attending medical personnel who treated him while he was on active duty; or treatment records from private facilities that reflect a treatment for symptoms, complaints or a diagnosis relating to emphysema from his period of active service. The most competent and probative evidence, specifically the medical opinions of record, fail to establish that the Veteran’s emphysema was incurred or is due to his military service. Thus, the preponderance of the evidence is against the claim and the benefit-of-the-doubt rule, which the Board has considered, is inapplicable. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 3.102 (2017). Accordingly, based on the foregoing reasons and bases, service connection for emphysema, to include as due to asbestos exposure, is denied. DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel