Citation Nr: 21062971 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-36 790 DATE: October 12, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as a result of in-service exposure to asbestos, is denied. FINDING OF FACT The preponderance of the evidence is against the establishment of a nexus between the Veteran's COPD and his service, to include exposure to asbestos. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic obstructive pulmonary disease (COPD) have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1975 to November 1978. In May 2021, the Board remanded this appeal for further evidentiary development. It should be noted that the Veteran's claim for service connection for COPD was initially denied in a June 2013 rating decision by the Agency of Original Jurisdiction (AOJ). The Veteran did not initiate an appeal of that decision, therefore, that decision became final. The February 2015 rating decision, which is the rating decision subject to this appeal, denied the claim due to new and material evidence not being submitted. The AOJ reopened the claim in the June 2016 Statement of the Case (SOC). The regulations and law require that, notwithstanding the AOJ's actions, the Board has the legal duty to determine whether new and material evidence has been presented to reopen a finally disallowed claim of service connection. 38 C.F.R. §3.156(a); See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). However, in the May 2021 Board remand, the Board characterized this issue as one of entitlement to service connection without the need to determine if new and material evidence was submitted. As such, to avoid any prejudice to the Veteran, and to maintain continuity, the Board will adjudicate the claim on the merits. Service connection for COPD The Veteran asserts that he developed COPD due to being exposed to asbestos during service. The evidence of the record establishes that the Veteran has a current diagnosis of COPD. A veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). Regarding an in-service injury or event, the Veteran asserts that, due to his military occupational specialty (MOS) as an automotive mechanic, he worked with different materials that were covered in asbestos. The Veteran's military personnel records confirm his MOS as an automotive mechanic. The Veteran submitted articles from the Department of Occupational Safety and Health Administration (OSHA) and Annals of Occupational Hygiene regarding automotive brakes and clutches containing asbestos. See June 2016 Correspondence. The Board finds that the Veteran's assertions are consistent with the places, types, and circumstances associated with his military duties. See 38 U.S.C. §1154 (a). Therefore, resolving doubt, the Board will find that the in-service event of asbestos exposure has been established. Regarding whether there is a nexus, a July 2021 VA examiner opined that it was less likely than not that the Veteran's COPD was due to his service, to include exposure to asbestos therein. The examiner explained that tobacco abuse has been unequivocally established as the top cause of COPD. The causal relationship between smoking and COPD is well studied and well documented. The examiner further explained that, consistent with this etiology, the Veteran had a well-established history of more than 40 years of tobacco abuse. The examiner continued that, as is the case of the millions of other people who develop COPD, the Veteran's COPD is caused by his long-standing history of smoking, which is not related to service. It was noted that the Veteran continued to smoke, as noted in his VA medical records. Regarding asbestos exposure, the examiner explained that mere exposure to asbestos fibers does not definitively result in COPD or asbestosis. Asbestosis is a long-term inflammation and scarring of the lungs due to asbestos fibers, ultimately leading to interstitial pulmonary fibrosis. In some cases, it may further develop into a mesothelioma, a type of lung cancer. After a thorough consideration of the evidence, the Board finds that the preponderance of the evidence is against a nexus between the Veteran's COPD and his service, to include his conceded in service asbestos exposure. The examiner explained that the Veteran's COPD is due to his long history of smoking, which has been documented in medical literature to be the leading cause of COPD. Additionally, the examiner addressed the assertion of asbestos exposure and explained that this did not result in the development of COPD. It should be noted that the Veteran was not found to have asbestosis, which would be due to asbestos fibers. See June 2016 VA Examination for Respiratory Conditions. The Board finds this opinion to be highly probative, as the July 2021 examiner uses the applicable medical principles to explain the particulars of the Veteran's case, including his assertion of asbestos exposure. The Board has also considered whether the Veteran's tobacco use was due to another service-connected disability. VA's General Counsel has held that neither 38 U.S.C. § 1103(a) nor 38 C.F.R. § 3.300 bars the award of service connection and payment of VA disability compensation for a tobacco-related disability (e.g., emphysema or COPD) that is caused or aggravated by tobacco use due to a primary service-connected disability. See VAOGCPREC 6-2003. When assessing this type of issue, the following questions must be resolved: (1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. Id. Unfortunately, in this current matter, the Veteran is not service connected for any disabilities. Additionally, there is no express basis on which to award service connection for tobacco use itself. See generally 38 C.F.R. Part 4 (VA Schedule for Rating Disabilities) (does not contemplate a separate disability rating for tobacco use). Further, for claims filed after June 9, 1998, as in the instant case, service connection may not be granted on the basis that a disability resulted from disease or injury attributable to the use of tobacco products during active service. 38 U.S.C. § 1103 (a); 38 C.F.R. § 3.300. Regardless, the examiner also opined that the Veteran's tobacco use was not related to his service. The Board acknowledges the Veteran's assertions that his COPD is due to his service. Although lay persons are competent to provide opinions on some medical opinions, determining the etiology of COPD falls outside the realm of common knowledge of a lay person. In this appeal, the Veteran has not demonstrated the medical expertise required for this matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). Furthermore, the examining July 2021 VA clinician has demonstrated that medical expertise and has provide thorough rationale to support the conclusion. Although the Board is sympathetic to the Veteran's claim, the weight of the evidence is against a finding of service connection for COPD. In reaching this decision, the Board has considered the applicability of the benefit of the doubt (CONTINUED ON NEXT PAGE) doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.