Citation Nr: 21069396 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-14 546 DATE: November 18, 2021 ORDER Entitlement to service connection for a respiratory disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's respiratory disorder, to include COPD, began during active service, or is otherwise related to an in-service injury. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, to include COPD, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from December 7, 1977 to December 19, 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office. Most recently, the Veteran's claims were previously remanded by the Board in an April 2020 decision. The Board finds that the RO has substantially complied with the April 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a respiratory disorder The Veteran contends that he was exposed to tear gas and asbestos during his time in the military that either aggravated his asthma or caused his COPD. The Board notes the Veteran was on active-duty service with the Navy from December 7, 1977 to December 19, 1977. 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). 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 diagnosis of COPD, 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. Prior to his enlistment, in September 1977, the Veteran was noted to have bilateral asthmatic rales on his enlistment examination. The Veteran was not on active-duty service until December 1977. A February 2013 private treatment note indicated that the Veteran recalled having significant exposure to tear gas while in the military and the private treatment provider could not exclude a causal relationship between that exposure and his significant airway hyperreactivity; however, the opinion is not probative because the preponderance of the evidence weighs against finding that the Veteran's exposure to tear gas occurred. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). While the Veteran is competent to report that he was exposed to tear gas and/or asbestos during service, his reports are largely not credible due to internal inconsistency and inconsistency with other evidence in the record. There is no evidence in the Veteran's military record that he was exposed to tear gas or asbestos during his service in December 1977. There is no indication that the Veteran ever served on a ship or was otherwise subject to any kind of environmental exposure during his service. The record indicates the Veteran was deemed unsuitable for service on December 20, 1977. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In May 2021, the Veteran underwent an updated VA examination for his respiratory condition. The examiner noted a diagnosis of chronic obstructive pulmonary disease (COPD). The examiner noted the September 1977 diagnosis of bilateral asthmatic rales and a 1999 treatment note indicating acute bronchitis with rule out asthma. The examiner noted the Veteran was first diagnosed with COPD in 2013. The Board also notes that a chest x-ray was negative. The examiner opined that the Veteran's COPD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner noted that the Veteran was diagnosed with asthmatic rales before he entered service in September 1977. The examiner indicated that as there is no continuation of symptoms during service and/or after separation from active service, it is less likely than not that the current COPD diagnosis was incurred in or caused by the complaint of a lung condition during active service. The examiner also opined that it is less likely than not that the Veteran's current COPD was aggravated beyond its natural progression during active service as there was no record of persistent asthma or any related lung treatments during or after service. The examiner also noted there was no current evidence of asthma or asthmatic rales. While the Veteran believes his respiratory disorder, to include COPD, is related to exposure to asbestos or tear gas during his service in December 1977, the Board reiterates that the preponderance of the evidence weighs against findings that any exposure to an environmental irritant or other injury in service occurred. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.