Citation Nr: 21000295 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 19-26 204A DATE: January 5, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for pulmonary disease is reopened; to this extent, the claim is granted. Entitlement to service connection for pulmonary disease is denied. FINDINGS OF FACT 1. By a December 2015 rating decision, the Regional Office (RO) denied the Veteran’s claim for service connection for pulmonary disease; he was advised of the RO’s decision, and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO’s December 2015 decision within one year; nor was new and material evidence received within a year. 3. Additional evidence received since the RO’s December 2015 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to unestablished facts necessary to substantiate the claim for service connection for pulmonary disease, and raises a reasonable possibility of substantiating the claim. 4. The preponderance of the evidence is against finding that pulmonary disease began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The December 2015 rating decision to deny service connection for pulmonary disease is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for pulmonary disease. 38 U.S.C. §§ 1131, 5108; 38 C.F.R. §§ 3.303, 3.156. 3. The criteria for entitlement to service connection for pulmonary disease have not been 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 served on active duty from January 1957 to February 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision. The Veteran did not request a Board hearing. In June 2020, the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for pulmonary disease A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The issue of entitlement to service connection for pulmonary disease was originally denied in a December 2015 rating decision because the evidence did not show the Veteran’s diagnosis was linked to his military service. The Veteran did not initiate an appeal of this denial, and it became final. Since the December 2015 rating decision, the Veteran was afforded a VA examination in November 2018, and lay statements, private treatment records, and VA treatment records have been associated with the record. The VA examination provides a medical nexus opinion regarding the Veteran’s pulmonary disease. The lay statements document the Veteran’s in-service exposure to asbestos in the boiler room. The private and VA treatment records show ongoing treatment for chronic obstructive pulmonary disease (COPD). The Board finds new and material evidence has been received and therefore the claim is reopened. 2. Entitlement to service connection for pulmonary disease The Veteran contends that his pulmonary disease is due to working in the engine room and exposure to asbestos. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 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 current diagnosis of COPD, and evidence shows the Veteran was exposed to asbestos during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of COPD began during service or is otherwise related to an in-service injury, event, or disease. Private treatment records show the Veteran was not diagnosed with emphysema until 1972, approximately thirteen years after his separation from service. He was not diagnosed with COPD until October 2013, over five decades after his separation from service. While the Veteran is competent to report having experienced symptoms of coughing over the years, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of emphysema or COPD. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran quit smoking six months prior to an October 2013 private treatment note which shows he was a pack a day smoker for 50 years prior. A May 2015 private treatment record reflects the Veteran is a former smoker with a 60 pack year. An August 2019 private treatment note reflects the Veteran is an active smoker with close to a pack a day. The social history note states the Veteran started smoking at thirteen years old and quit at 76 years old, smoking approximately ten cigarettes per day. Private treatment records from November 2015 to August 2019 show the Veteran received ongoing treatment for COPD. Taken together, the December 2015 and November 2018 VA examiners’ opinions establish that the Veteran’s emphysema and COPD are not at least as likely as not related to an in-service injury, event, or disease, including asbestos exposure. The December 2015 VA examiner opined that the Veteran’s emphysema was not at least as likely as not related to asbestos exposure, while the November 2018 VA examiner opined that the Veteran’s COPD was not at least as likely as not related to asbestos exposure. The combined rationale was that the Veteran’s emphysema is at least as likely as not incurred in or caused by his 58 pack year smoking history. See December 2015 VA examination. The examiner noted the Veteran’s October 2013 private medical record documents the Veteran smokes one pack per day. Id. A November 2014 private medical record documents the Veteran smoked for 58 years. Id. The Veteran’s COPD could not be clearly linked to his history of working as a boiler technician since the diagnosis of pulmonary asbestosis is not established. The examiners’ combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran submitted an October 2015 private medical opinion by R.G., MD. Dr. R.G. opined that the Veteran has COPD that could be consistent with his occupational exposures. He continued that it is extremely difficult to state the exact contribution of the Veteran’s occupational exposures, including exposure to asbestos during service and exposure as a welder after service, to his longer term pulmonary symptoms and limitations when the Veteran’s smoking is taken into consideration. This opinion is inadequate to substantiate the claim because it is not based on a review of the file and is couched in speculative terms. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a doctor’s statement that a veteran’s brain tumor “may well be” connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term “could,” without other rationale or supporting data, is speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (noting that a medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish a causal relationship). Consequently, the Board gives more probative weight to the combined VA examiners’ opinions. The Veteran believes his pulmonary disease is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pulmonary disease. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical opinions. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). An alternative to showing chronicity in service is a showing of continuity of symptoms after discharge. The United States Court of Appeals for the Federal Circuit (Federal Circuit), however, has clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303 (b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). COPD is not a chronic condition under 38 C.F.R. § 3.309. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a pulmonary disease. Therefore, entitlement to service connection for pulmonary disease is not warranted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.