Citation Nr: 20021264 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-56 363 DATE: March 25, 2020 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. REMANDED Entitlement to service connection for an acquired psychiatric condition, to include unspecified depressive disorder with anxious distress is remanded. FINDING OF FACT COPD was not shown in-service or many years thereafter; and the preponderance of the evidence fails to establish that the Veteran’s diagnosed COPD is etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1975 to April 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board Remanded these matters in an April 2019 decision in order to further develop the record and provide the Veteran with a VA examination. Entitlement to service connection for COPD. The Veteran contends his diagnosed COPD was caused by active service. Specifically, he stated that he was exposed to asbestos blankets and pads during service which caused his COPD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). VA treatment records establish a diagnosis for COPD. Shedden element (1) is met. Turning to Shedden element (2), a disease or injury in service, the Veteran’s service treatment records do not document any complaints, symptoms, treatment, or diagnosis of COPD. An April 1976 separation examination shows that the Veteran was found to have no complaints of asthma, shortness of breath, pain or pressure in chest, or chronic cough. A review of medical records indicate that the Veteran was initially diagnosed with mild COPD exacerbation in January 2003, approximately 23 years after discharge. The physician noted that the Veteran was a heavy smoker. In July 2014, the Veteran stated that he was exposed to asbestos blankets and pads used to clean oil and fluid spills while aboard the USS Schenectady. The Veteran is competent to report that he used blankets and pads to clean oil and fluid spills during service. However, he has not provided any information explaining how he came to the conclusion that blankets and pads contained asbestos. In April 2019, the Veteran was requested to submit additional evidence or information in support of his claim of asbestos exposure. No such evidence or information was provided. Accordingly, an in-service disease or injury cannot be presumed. As to evidence of Shedden element (3), a nexus, an October 2019 VA examiner essentially opined that the Veteran’s asthmatic bronchitis which pre-existed service naturally progressed to become severe COPD. A December 2019 VA expert reviewed the clinical evidence in its entirety, and following informed consideration, explained that the Veteran’s smoking history and asthma contributed significantly to the development of COPD. The examiner noted that the most significant risk factor for COPD is long-term cigarette smoking. Medical records note that the Veteran was a heavy smoker for years and has had asthmatic bronchitis from the age of 16 to the present. The examiner found that the Veteran’s asthmatic bronchitis was not aggravated beyond natural progression by active military service. The record does not contain any contradicting opinions. Acknowledgment is given to the Veteran’s COPD having been associated with tobacco use and asthmatic bronchitis. For claims filed after June 9, 1998, the law prohibits service connection of a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a Veteran during active service. 38 U.S.C. § 1103; C.F.R. § 3.300. Further, the Veteran’s asthmatic bronchitis is not service-connected. Neither the Veteran nor his attorney contend otherwise. See 38 C.F.R. § 3.310. Consideration has been given to the Veteran’s contentions that his disability is related to his service. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of respiratory medicine. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran is certainly competent to report that he experiences symptoms of difficult breathing problems, he is not competent to link those complaints to a particular etiology. His assertions are therefore not competent evidence of asbestos exposure or a medical nexus. Accordingly, the Board finds that the claim of entitlement to service connection for COPD must be denied under any theory of entitlement. 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 Veteran’s claim of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). REMAND Entitlement to service connection for an acquired psychiatric condition, to include unspecified depressive disorder with anxious distress is remanded. In November 2016 the Veteran, through his attorney, stated that his acquired psychiatric condition should be service connected. Specifically, he argued that service connection should be granted based upon a theory of secondary service connection to all service-connected disabilities. Currently, the Veteran’s service-connected disabilities include post-operative left middle ear cholesteatoma (30 percent), tinnitus (10 percent), and bilateral hearing loss (0 percent). The Veteran underwent a VA examination in March 2019. The examiner opined that the Veteran’s psychiatric disorder was caused by COPD and a brain abnormality. The March 2019 examiner, however, did not address whether the Veteran’s post-operative left middle ear cholesteatoma, tinnitus, and/or bilateral hearing loss caused and/or aggravated his acquired psychiatric condition. The opinion is inadequate for this reason and an addendum opinion is required. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the March 2019 VA examiner, if possible, or an appropriate clinician regarding the Veteran’s acquired psychiatric disability. (a.) The examiner must opine whether the Veteran’s acquired psychiatric condition, to include unspecified depressive disorder with anxious distress, is due to his service-connected post-operative left middle ear cholesteatoma, tinnitus, and/or bilateral hearing loss. (b.) The examiner must opine whether the Veteran’s acquired psychiatric condition, to include unspecified depressive disorder with anxious distress, is aggravated by his service-connected post-operative left middle ear cholesteatoma, tinnitus, and/or bilateral hearing loss. (Continued on the next page)   2. The examiner must provide supporting rationale for all opinions expressed. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.