Citation Nr: 19108564 Decision Date: 02/05/19 Archive Date: 02/04/19 DOCKET NO. 15-21 674 DATE: February 5, 2019 ORDER Service connection for asbestos-related pleural (lung) disease is denied. FINDING OF FACT There is no probative medical evidence that indicates the Veteran’s pleural disease was incurred in service. CONCLUSION OF LAW The criteria to establish service connection for pleural disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1953 to October 1957. The Veteran’s case was remanded in December 2016 for evidentiary development. Entitlement to service connection for asbestos-related pleural (lung) disease 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). 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). VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. See VBA’s Adjudication Procedure Manual, M21-1, Part IV, subpart ii, Chapter 1, Section I.3.a-f; see also VAOPGCPREC 04-2000 (Apr. 13, 2000). When considering VA compensation claims, rating boards have the responsibility of ascertaining if military records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to ascertain if there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. See M21-1, Part IV.ii.2.C.2.a-i. Asbestos particles tend to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce plural effusion and fibrosis, pleural plaque, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See id. It should be noted that the pertinent guidelines of service connection in asbestos-related cases are not substantive rules, and 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); see also VAOPGCPREC 04-2000. 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 is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about 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 v. Nicholson, 21 Vet. App. 303 (2007). 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). August 2000 private treatment records indicate x-rays demonstrated mild pleural thickening consistent with asbestos-related disease. Private treatment records indicate the Veteran reported a history of asbestos exposure during his 25-year employment history as a construction worker. The Veteran’s April 1953 report of medical history at induction indicates he denied shortness of breath or pain or pressure in his chest. His clinical respiratory evaluation was normal. Service treatment records do not indicate any complaints, diagnoses or treatments for a respiratory disability in service. On the October 1957 report of medical history at discharge, the Veteran denied shortness of breath and pain or pressure in his chest. A chest x-ray indicated essentially normal heart and lungs. His clinical respiratory evaluation was normal. The Veteran contends he was exposed to asbestos while serving on several naval vessels and that this exposure resulted in his pleural (lung) disease. Per VA regulations, the Agency of Original Jurisdiction (AOJ) attempted to verify whether the Veteran was exposed to asbestos during service. In May 2017, the RO made a formal finding that the Veteran’s military occupational specialty (MOS) as a boatswain’s mate indicated a low probability for asbestos exposure during service. However, the Veteran testified he worked and cleaned areas in the cargo hold with exposed pipes covered in asbestos during service. The Veteran is credible in his report of observing asbestos-covered pipes on a naval vessel, and the evidence is consistent with the places, types, and circumstances of his service. Therefore, exposure to asbestos during service is recognized. See 38 U.S.C. § 1154 (a). However, the extent of the asbestos exposure is unknown. In May 2017, a VA examiner reviewed the Veteran’s claims file and opined that the Veteran’s co-morbid lung and heart conditions were responsible for the Veteran’s continuous need of additional oxygen. The same examiner also opined he could only speculate as to whether the Veteran’s asbestos exposure in service caused the Veteran’s asbestos-related lung disease because the Veteran also had significant asbestos exposure after service. In March 2018, a pulmonologist reviewed the Veteran’s claims file and opined there was a less than 50 percent chance the Veteran’s claimed respiratory condition was related to in-service asbestos exposure because the Veteran spent many years in the construction industry which would have given him a higher rate of exposure to asbestos than during his military service. The examiner also noted that well-accepted pulmonary medical principles did not support the contention that asbestosis caused chronic obstructive pulmonary disease (COPD), and that the Veteran’s medical records indicated there were other medical explanations for the Veteran’s shortness of breath and need for oxygen. Finally, the examiner noted the Veteran’s respiratory disability was not related to any other aspect of the Veteran’s military service because the Veteran did not demonstrate the onset of pulmonary or respiratory disability during service. The preponderance of the evidence is against finding service connection for pleural (lung) disease. There is no probative medical evidence that indicates the Veteran’s current pleural disease disability was incurred in service. The Veteran has continuously asserted throughout the appeal that his current pleural disease is a result of exposure to asbestos during service. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current respiratory disability. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Pleural disease requires specialized training for determinations as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to the Veteran’s exposure to asbestos during service. Since the Veteran’s current pleural (lung) disease was not incurred in service, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel