Citation Nr: 21063229 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-48 183 DATE: October 13, 2021 ORDER Service connection for lung disorder, claimed as chronic obstructive pulmonary disease (COPD), to include as the result of asbestos exposure, is denied. Service connection for heart disorder, claimed as coronary artery disease (CAD), to include as the result of asbestos exposure, is denied. FINDINGS OF FACT 1. A lung disorder was not shown in service or for many years thereafter, and is unrelated to service or to exposure to asbestos. 2. A heart disorder was not shown in service or for many years thereafter, and is unrelated to service or to exposure to asbestos. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lung disorder, claimed as COPD, to include as the result of asbestos exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a heart disorder, claimed as CAD, to include as the result of asbestos exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty April 1982 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) from a January 2015 rating decision issued by the Department of Veteran Affairs (VA), Regional Office (RO). This appeal was remanded by the Board in December 2019 for further development and is now ready for adjudication. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/ Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). With regard to the Veteran's claims regarding exposure to asbestos, the VA Adjudication Procedure Manual, M21-1 (M21-1), provides guidance on how to adjudicate claims based on exposure to some environmental hazards, as well as specific guidance in adjudicating asbestos-related claims. M21-1, Part VII.iii.7.A.1.a (July 29, 2021). However, there is no VA regulation that allows service connection on a presumptive basis for disorders resulting from exposure to environmental chemicals. 38 C.F.R. §§ 3.307, 3.309. Rather, service connection based on chemical exposure may be established only if a current disability is shown by the evidence to be related to chemical exposure during service. 1. Service connection for lung disease, claimed as chronic obstructive pulmonary disease (COPD) 2. Service connection for heart disease, claimed as coronary artery disease The Veteran is claiming entitlement to service connection for a lung and heart disorders, which he asserts are COPD and CAD, as a result of his exposure to asbestos while serving as a heating systems technician. After a review of the evidence, the Board finds that service connection for his lung and heart disorders, to include as the result of exposure to asbestos, is not warranted. In this case, the Board is willing to concede that the Veteran was exposed to asbestos while serving as his service treatment records reflect such. However, there is no indication in the Veteran's service treatment records that he experienced respiratory or cardiovascular symptoms in service. Indeed, several pulmonary function tests and chest examinations were all normal. Further, the service treatment records do not reflect complaints of, treatment for, or a diagnosis related to a heart or lung disorder condition and/or asbestosis while in service. The post-service evidence does not reflect symptoms related to a lung condition until approximately 2009 and a heart disorder until approximately 2014. This was many years after service, and therefore, inconsistent with experiencing symptoms since service or either disorder developing within a year of leaving service. As part of this claim, the Board recognizes the Veteran's statements regarding his history of symptoms. In this regard, while the Veteran is not competent diagnose a disorder such as a CAD or COPD, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. As an initial matter, the Board cannot ignore that there is a significant gap in time between when he left service and when he filed his claim for benefits. Moreover, when he originally submitted a claim for benefits in April 2014, he did not mention a cardiovascular disorder at that time. It would seem intuitive that, had he been experiencing symptoms at that time, he would have claimed entitlement to service connection at this time. Instead, he included this disorder on his subsequent September 2014 claim. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, as for the Veteran's specific assertions that he has a lung and heart condition that are related to exposure to asbestos, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty, despite his contentions to the contrary. Specifically, the Board places significant value on the opinion of the VA examiner who evaluated the Veteran in January 2020. After a thorough review of the evidence, the VA examiner reported that based upon the radiological findings as detailed above, the Veteran had COPD and did not have asbestosis. Further, the examiner opined that the Veteran's COPD was less likely than not related to active service or exposure to asbestos as the service treatment records showed no significant findings that the condition manifested in service and is most likely related to smoking and alcohol abuse. The examiner provided the same opinion and rationale for the Veteran's heart disorder. The Board affords the results of this opinion and the underlying examinations to be highly probative. Indeed, in addition to the lack of symptoms for many years, and the Board independently notes that his chest X-ray at the November 2020 examination was normal. The Board also notes that, according to the VA examination, the Veteran refused to undergo a post-bronchodilator pulmonary function test, which calls into question his cooperation with the examination. The Board acknowledges receipt of the medical literature the Veteran provided in support of the appeal. Although the medical article discusses the possible connection between asbestos and his disorders, it does not provide a definitive connection between the two disabilities or pertain to the specific facts of the Veteran's case. Furthermore, it is not coupled with a medical opinion. As such, the medical literature is of little probative value. Moreover, while the VA examiner did acknowledge that "some clinical literature" correlates heart disease with asbestos exposure, an increased risk factor does not establish a causal relationship. The Board also acknowledges the Veteran's statements regarding his lung and heart disorders since active service, but also finds that evidence to be less persuasive. A lay person is competent to report observable respiratory and cardiac symptomatology only. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his disorders may be the result of his asbestos exposure or other in-service injury, he is a lay person without appropriate medical training and expertise to provide a medical nexus opinion regarding the etiology of the disorders. The Board concludes that the preponderance of the evidence is against the claim for service connection for the Veteran's lung and heart disorders, and there is no doubt to be otherwise resolved. Therefore, the claim for service connection must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Billinger, Associate Counsel