Citation Nr: 18158980 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-50 685 DATE: December 18, 2018 ORDER Entitlement to service connection for a lung disability, to include as a result of any asbestos exposure during service, is denied. FINDING OF FACT The Veteran’s lung disability, diagnosed as COPD, neither began during nor was otherwise caused by his period of military service, to include as a result of exposure to asbestos. CONCLUSION OF LAW The criteria to establish service connection for a lung condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1973 to November 1974. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal, in part, from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. By this rating action, the RO denied service connection for asbestosis. The Board notes that the RO has characterized the claim as entitlement to service connection for asbestosis based on the receipt of new and material evidence. In April 2007 (within a year of issuance of the appealed April 2006 rating action), however, VA received the Veteran’s Notice of Disagreement with the RO’s April 2006 rating action. (See VA Form 21-4138, received by VA in April 2007). Thus, the Board finds that new and material evidence is not required, and the claim for service connection for asbestosis will be reviewed on a de novo basis. The Veteran seeks service connection or a lung disability, to include asbestosis. He alleges that he has a lung disability, to include asbestosis that is the result of having been exposed to asbestos from having to clean boilers, to include one that exploded while stationed aboard the USS BIGELOW (DD 942). The Veteran maintains that he was sent to work in the boiler room as punishment for being absent without leave (AWOL) when the USS BIGELOW (DD 942) was stationed in Mayport, Florida from September to October 1973, after the ship had served in Guantanamo Bay, Cuba. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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. 2009). With regard to asbestos-related disorders, VA has provided guidance on how to adjudicate claims based on exposure to some environmental hazards, as well as specific guidance in adjudicating asbestos-related claims. However, there is no VA regulation that allows service connection on a presumptive basis for disorders resulting from exposure to environmental chemicals. 38 C.F.R. §§ 3.307, 3.309. Rather, service connection based on chemical exposure may be established only if a current disability is shown by the evidence to be related to chemical exposure during service. The Veteran alleges that his current lung disability is the result of having been exposed to asbestos from having to clean boilers, to include one that exploded while he was stationed aboard the USS BIGELOW (DD 942) in Mayport, Florida between September and October 1973, after it had returned from service in Guantanamo Bay, Cuba. He maintains that he did not have any pre-or post-service asbestos exposure, notably during his post-service employment as an ultrasound technician. (See VA Forms 21-4138, Statements in Support of Claim, received by VA in April 2007 and November 2010; and VA Form 21-5216 (b), Veteran’s Supplemental Claim, received by VA in October 2010)). The Veteran’s military personnel records confirm that he served aboard the USS BIGELOW (DD 942) from September 1 to October 29, 1973, and that he had received several non-judicial punishments, none of which were for being AWOL during this period. (Parenthetically, the Board observes that the Veteran was found to have been on unauthorized leave (UA) on several occasions from March to July 1974)). These records also disclose that his primary military occupational specialty (MOS) was a radioman. These records do not show that he that he had served in the boiler room and/or that there was a boiler explosion aboard the USS BIGELOW (DD 942), as the Veteran has alleged. In addition, the Command History of the USS BIGELOW (DD 942) for the calendar year 1973 and logbooks for the period from September to October 1973 show that the ship spent January 1973 in stand down in Mayport, Florida. The deck logs for the period from September and October 1973 show that the USS BIGELOW was in dry dock at Charleston Navy Shipyard, South Carolina, and that it had remained at that port through December 1973. (See USS BIGELOW’S deck logs for September and October 1973 and Command History for 1973, each labeled as “Third Party Correspondence” and received into VBMS in September 2015 and April 2016, respectively). Regardless, in this case, the Board does not ultimately need to reach the question of whether the Veteran was exposed to asbestos during service, as the evidence of record does not link any chronic respiratory disability to asbestos exposure during service. The evidence of record does show that the Veteran has been found to have asbestos-induced pleural plaques, but plaquing is not in and of itself found to constitute a respiratory disability. Rather, the asbestos exposure must be shown to result in a chronic disability such as asbestosis or mesothelioma. Here, the finding of pleural plaques does not establish an asbestos exposure related disease, rather it merely suggests some asbestos exposure in the past. The Veteran does have a chronic respiratory disability, namely COPD, but there is no suggestion that COPD is the result of the Veteran’s military service, to include any exposure therein. The Veteran was not assessed with, nor do his service treatment records show, any complaints of respiratory problems during service. A November 1974 service discharge examination report reflects that the Veteran’s lungs and chest were evaluated as “normal.” A chest x-ray was noted to have been within normal limits. The examining clinician noted that the Veteran had smoked one pack of a cigarettes a day for the previous 10 years. There is one VA opinion that addresses this element and it is squarely against the claim. No medical opinion even suggests that the Veteran’s COPD even may be the result of his military service. Accordingly, the Board finds that the preponderance of the evidence of record shows that the Veteran’s lung disability is not related to service or any exposure therein. While the Veteran is competent to report symptoms of a lung disability, such as difficulty breathing, he is not competent to relate it to asbestos exposure during active service, as that requires medical testing and expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the Veteran is not competent to provide an opinion in this case. Accordingly, the Board finds that the preponderance of the evidence of record is against the claim for service connection for a lung disability, to include asbestosis, and the claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel