Citation Nr: A21017285 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 210930-188358 DATE: October 26, 2021 ORDER Service connection for lung problems, diagnosed as chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's lung problems, diagnosed as COPD, began during active service, or are otherwise related to an in-service injury or disease, to include as due to asbestos exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for lung problems, diagnosed as COPD, to include as due to asbestos exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1961 to May 1965. By way of background, service connection for a chronic lung disorder was initially denied by the Agency of Original Jurisdiction (AOJ) in a September 2006 rating decision. The Veteran submitted a claim of service connection for COPD in March 2020. In July 2020, the AOJ issued a rating decision that confirmed and continued the denial of service connection for lung problems due to asbestos exposure, also claimed as COPD. In October 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the July 2020 rating decision. In February 2021, the AOJ issued a decision that identified a duty to assist error, essentially finding that new and relevant evidence had been received. This is a favorable finding by the AOJ, and the Board will proceed to the address the claim on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). In May 2021, the AOJ issued the supplemental claim decision on appeal, which denied the claim based on the evidence of record at the time of that decision. In the September 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2021 rating decision on appeal. 38 C.F.R. § 20.301. Entitlement to service connection for lung problems, diagnosed as COPD, to include as due to asbestos exposure The Veteran contends that service connection should be established for COPD, which he believes is the result of exposure to asbestos that he had while serving in the United States Navy. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). 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. Review of the Veteran's service treatment records (STRs) shows no complaint or manifestation of a respiratory disorder. On examination for separation from service in April 1965, and on examination for service in the reserves in April 1967, the Veteran did not report a medical history of shortness of breath or other respiratory disorder. Clinical evaluation of the lungs on those examinations was also normal. VA outpatient treatment records show that in February 2003, the Veteran had diffuse rhonchi on examination of the lungs. Subsequent records, however, including treatment reports from 2006, showed the lungs to be clear. Treatment records in January 2015 clearly include a diagnosis of COPD. Thus, VA treatment records show the Veteran was not diagnosed with any chronic respiratory disorder, including COPD, until many years after his separation from service. While the Veteran is competent to report having experienced symptoms of a respiratory disorder since service, he is not competent as a layperson to provide a diagnosis in this case or determine that these symptoms were manifestations of a chronic respiratory disorder, including COPD. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). To address the question of whether the Veteran had a current lung disorder related to his in-service asbestos exposure, an examination was conducted by VA in March 2021. At that time, the diagnosis was COPD. Following examination, the VA examiner opined that the Veteran's COPD was not at least as likely as not related to an in-service injury, event, or disease, including asbestosis exposure during service. The rationale was that asbestosis exposure did not directly cause COPD, but "can increase a person's risk of developing the condition." The examiner explained that COPD might weaken the lungs, making a person more susceptible to additional asbestos-related diseases. This rationale was supported by cited documentation regarding asbestos-related diseases. The examiner went on to explain that COPD is a lung disease that usually refers to chronic bronchitis and emphysema and that the main cause of COPD is smoking; although environmental factors such as pollution, chemical fumes, exposure to asbestos or exposure to other toxic workplace dust could trigger the disease. The examiner noted that the Veteran had a history of smoking since he was 16 years old. Therefore, it was less likely than not that the COPD was incurred in or caused by asbestos exposure during service. The examiner's 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). After review of the record, the Board concludes that, while the Veteran has a current diagnosis of COPD, and evidence shows that the Veteran was likely exposed to asbestos while on active duty, 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. Although the VA examiner speculated that asbestos exposure may trigger COPD, this does not reach the level of nexus opinion to place the claim in equipoise such that the benefit of the doubt doctrine should be applied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30 (1993). For this reason, the appeal must be denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.