Citation Nr: 18146658 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 17-11 562 DATE: October 31, 2018 ORDER Service connection for a lung disability, to include asbestosis, chronic obstructive pulmonary disease (COPD), and interstitial lung disease (ILD), is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran had a lung disability, to include asbestosis, COPD, and ILD, due to a disease or injury in service, to include in-service asbestos exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for a lung disability, to include asbestosis, COPD, and ILD, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3,102, 3.303, 3.1010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from June 1965 through July 1968. The appellant is the Veteran’s surviving spouse. In April 2017, the appellant requested to be substituted as the claimant for the purpose of processing the pending claim to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. In the September 2017 supplemental statement of the case, the RO notified the appellant that her status as the substituted claimant had been recognized and approved. Accordingly, the appellant is substituted. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for a lung disability, to include asbestosis, COPD, and ILD. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran was diagnosed with COPD and ILD in 2014. See November 2014 Novant Health Final Report. His personnel records indicate that he served aboard the USS Ashland and his military occupational specialty (MOS) was as machinist mate. There is no specific statutory guidance with regard to asbestos-related claims, nor has VA promulgated any regulations in regard to such claims. However, in May 2016, VA found that the Veteran’s MOS was consistent with exposure to asbestos. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). At issue is therefore whether there is a nexus between the Veteran’s diagnoses and his in-service exposure to asbestos. An October 2016 VA examiner opined that the Veteran’s ILD with overlay of COPD is not at least as likely as not related to an in-service injury, event, or disease, including in-service asbestos exposure. The examiner discussed the uncertainty of the Veteran’s diagnosis due to a heavy cigarette-smoking history of approximately 30 years and concurrent emphysema. He explained that a history of asbestos exposure is expected to be commensurate with the degree of the disease. On occasion, a patient with another ILD, such as idiopathic pulmonary fibrosis (IPF), will have a history of asbestos exposure and there should be rapid progression, with a visible, year-to-year increase in symptoms, progression of radiographic findings, and loss of pulmonary function in the absence of intense asbestos exposure, suggest the diagnosis of IPF rather than asbestosis. The examiner opined that with no characteristic findings of pleural plaques on the CT exam, no biopsy or bronchoalveolar lavage, which show asbestos fibers or bodies, and the fact that the Veteran demonstrated such rapid decline between 2014 and 2016, it is more likely than not that the Veteran has Interstitial Pulmonary Fibrosis than Asbestosis. Therefore, it is less likely as not that the Veteran has asbestosis related to asbestos exposure in the Navy. The examiner’s opinion is probative, because it is based on an accurate medical history, medical literature, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). An August 2017 VA examiner opined that the Veteran’s lung disability is not at least as likely as not related to an in-service injury, event, or disease, including in-service asbestos exposure. The examiner explained that there is usually a 15 to 20-year latency period that occurs between the initial exposure and the first radiological or clinical evidence of disease. However, there was no evidence of a diagnosis of pulmonary fibrosis or asbestosis until approximately 45 years after separation. There was no indication of any diagnosis during the above-mentioned latency period. The examiner’s opinion is probative, because it is based on an accurate medical history, medical literature, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran’s treatment records are silent regarding any complaints of the respiratory system. He indicated in his report of medical examination at separation that his lungs and chest were normal. See June 1968 Report of Medical Examination. No defects or diagnoses were noted. Id. These medical records are highly probative both as to the Veteran’s subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran’s then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); see also LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). While the appellant believes that the Veteran’s terminal disorder was related to an in-service injury, event, or disease, including his in-service asbestos exposure, she is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board has considered a May 2017 letter from a doctor stating that it is most likely as not that the development of the Veteran’s ILD and pulmonary fibrosis is linked to his exposure to asbestos in the Navy. However, the physician provides a summary conclusion, and does not state which records were reviewed, and does not give an account of the Veteran’s medical history nor of any amount of asbestos exposure. Therefore, the Board affords this letter no probative value. Consequently, the Board gives more probative weight to the VA examiners. There is no objective medical evidence establishing a nexus between the Veteran’s lung disability and his active service. Therefore, the preponderance of the evidence is against a finding of a nexus and service connection on a direct basis is not warranted. (Continued on the next page)   Although the Veteran had a disability, the preponderance of the evidence weighs against a finding that the Veteran’s lung disability was causally related to his service. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. McLendon, Associate Counsel