Citation Nr: 20022048 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 15-07 387 DATE: March 30, 2020 ORDER Entitlement to service connection for a respiratory condition is denied. Entitlement to service connection for obstructive sleep apnea is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a respiratory condition began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that obstructive sleep apnea began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1987 to February 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified before the undersigned Veterans Law Judge at a hearing. A copy of the transcript is associated with the Veteran’s claims file. In September 2018, the Board remanded these matters for further development. There has been substantial compliance with the directives for the issues adjudicated below. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). As it relates to claimed asbestos exposure, there is no statute specifically addressing service connection for asbestos-related diseases, nor has the VA promulgated any specific regulations or presumptions for these types of cases. 1. Entitlement to service connection for a respiratory condition 2. Entitlement to service connection for obstructive sleep apnea The Veteran seeks service connection for a respiratory condition and obstructive sleep apnea. He asserts that his respiratory condition and sleep apnea are related to asbestos exposure during active service. At his May 2018 hearing, he reported that he worked on the submarines, and that the gasket materials were asbestos. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnoses of chronic obstructive pulmonary disease (COPD), sleep apnea, and right lung granuloma, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Service treatment records include the February 2001 and December 2005 health record verification forms to which “no” was circled for the question as to whether the Veteran was “exposed to asbestos dust.” The Veteran’s Form DD 214 showed several military occupational specialties (MOS); however, none of the Veteran’s MOS’s correspond to a U.S. Navy MOS which VA has found to have at least a minimal probability of exposure. He has not submitted medical evidence showing actual exposure to asbestos. Pursuant to the Board remand, in March 2019 the RO attempted to request information to verify asbestos exposure, but no response from the Veteran was received. To the extent the Veteran now reports exposure to asbestos during service, his current assertion is outweighed by the absence of documentation of such exposure in his personnel records and by his working in positions that VA has not found to have at least a minimal probability of asbestos exposure. As such, the Board finds the evidence of record does not show the Veteran was exposed to asbestos in service. While the Veteran’s claimed exposure to asbestos has not been verified, he also reported exposure to diesel and fumes during active service. The competent and persuasive evidence weighs against a nexus between the Veteran’s current respiratory disabilities and his claimed in-service exposure to fumes. In March 2015, the Veteran underwent a VA examination. The Veteran reported dyspnea with exertion along with chronic cough. He reported that after military service, a small granuloma was noted on x-ray which was being followed. The examiner diagnosed a calcified granuloma. The examiner opined that there was no evidence of active lung condition related to service or exposure during service. In September 2019, the Veteran underwent another VA examination. The Veteran reported exposure to fumes and asbestos during deployment to the Middle East. He reported dyspnea with exertion along with chronic cough. The examiner diagnosed COPD and sleep apnea. The examiner opined that it was less likely as not that the Veteran’s diagnosed COPD was related to service. The examiner explained that the Veteran had a significant smoking history, and that smoking is the primary risk factor for COPD. The examiner explained that there is no evidence that the COPD was caused by or aggravated by the calcified granuloma, since calcified granulomas are caused by prior exposure to respiratory infections and are less likely to cause pulmonary impairment or limitation. The examiner further opined that it was less likely as not that the Veteran’s diagnosed sleep apnea was related to service. The examiner explained the primary risk factor for sleep apnea is obesity. It was noted that the Veteran had obesity at the time of diagnosis of sleep apnea, and was actively recommended weight loss and to stop smoking. While the Veteran reported sleep disturbances in service, the examiner also noted that service treatment records were negative for any concerns related to sleep issues. The Board finds the September 2019 VA opinion persuasive. The examiner's conclusions were unequivocal, supported by a rationale that is consistent with the verifiable facts regarding the Veteran's conditions and based on his medical expertise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) To the extent that the Veteran has otherwise asserted that his COPD and sleep apnea is related to his claimed exposure to fumes or asbestos, the Board finds he is not competent to provide a medical nexus because he does not possess the requisite medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is a layperson and has not presented any competent medical evidence in support of his theory that these conditions are etiologically related to his service and specifically due to certain hazardous exposures therein. His own lay opinion is not competent evidence in this matter.   There is not a reasonable basis to find that the Veteran’s current COPD and sleep apnea was incurred in, or is otherwise related to, his active service. There is no doubt to be resolved; service connection for COPD and sleep apnea is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.