Citation Nr: 21076150 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-63 897 DATE: December 22, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from May 1965 to May 1969. 2. COPD was not shown in service, was not causally or etiologically related to service, and was not caused or permanently worsened by a service-connected disability. Service connection for asbestosis has already been established. CONCLUSION OF LAW COPD was not incurred in service, was not due to in-service asbestos exposure, and was not proximately due to or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION In May 2021, the Veteran testified at a May 2021 hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In July 2021, the Board remanded the claim for additional development. The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a like between the current disability and the service-connected disability. COPD is not a chronic disorder under 38 C.F.R. § 3.309(a); as such, presumptive service connection on the basis of continuity of symptomatology is not for application. However, the Veteran has asserted both that COPD was the product of in-service asbestos exposure and that it stemmed from his service-connected asbestosis. Therefore, service connection on the basis of asbestos exposure, as well as secondary service connection, will be considered. Direct service connection will also be discussed. Turning first to direct service connection, the Veteran has been diagnosed with COPD. Specifically, multiple medical treatment notes, most recently in January 2021, and a June 2017 VA examination diagnosed COPD. Accordingly, a current disorder has been shown and the first element of service connection has been met. As to an in-service incurrence, a review of the service treatment records (STRs) reveals that the May 1969 separation examination found that the lungs and chest were clinically normal and noted no defects indicative of COPD. The STRs are otherwise silent for complaints, treatment, or diagnoses of COPD. Nonetheless, the Veteran testified at the May 2021 hearing that while in boot camp, he had to breath black smoke for a period of 5 minutes. He said that he subsequently spat up blood and noticed that his breathing was not as good as it had been prior to the smoke exposure. He recalled that he went to sick bay and was told that he was fine, but asserted that since boot camp, he had regressed constantly. The Veteran is competent to report in-service symptoms and experiences capable of lay observation; accordingly, to the extent that he was exposed to smoke for 5 minutes and noted difficulty breathing as a result, the second element of direct service connection has been met. As to in-service asbestos exposure, the Veteran reported in March and August 2017 statements, as well as May 2021 testimony, that he was exposed to asbestos while in service. He explained that he served on the USS Kearsage as a pipefitter and that asbestos was present throughout the ship. He recounted that he was responsible for installing pipes on the ship and handled asbestos on a daily basis, noting that every pipe had to be wrapped in asbestos. He said that he was denied proper breathing apparatuses by his chief pipefitter, who told him that he did not need it. The Veteran's military personnel records establish that his military occupational specialty included service as a pipefitter. The records also confirm his service on the USS Kearsage. Finally, the Board notes that he has been service connected for asbestosis in part due to his service aboard the USS Kearsage. Therefore, asbestos exposure to some degree is conceded. Turning to nexus, the Veteran has argued that COPD stemmed from service, to include in-service exposure to black smoke and asbestos. To this end, he reported in May 2021 that his breathing declined since his exposure to black smoke in boot camp. He further testified in May 2021 that he received a letter "from Washington D.C. [that stated] that they [were] responsible for the asbestos... ...in [his] lungs." In so doing, the Veteran asserted in an August 2017 statement that he disagreed with an examiner's conclusion that COPD was caused by his history of smoking. While he is competent to describe his symptoms and service history, he is not competent to opine either to the weight to assign to his smoking history or to the relationship between COPD and service. In a February 2017 private treatment note, a clinician reported that the Veteran's lung CT was consistent with pleural or right middle lung scarring that "could be a result of asbestos exposure." However, the Veteran is already service connected for asbestosis and the clinician did not opine as to whether COPD was the product of in-service asbestos exposure. Therefore, the February 2017 private treatment note is assigned lesser probative value. In June 2017, a VA examiner diagnosed COPD and asbestosis and opined that COPD was less likely than not related to service. The examiner noted that the Veteran had a chronic history of cigarette smoking and explained that smoking was the most common etiology for the development of COPD as cigarette smoke caused obstruction in respiratory airways. Subsequently, an August 2021 examiner opined that COPD was less likely than not due to in-service exposure to asbestos or black smoke. Rather, the examiner similarly offered that COPD with emphysema was due to a heavy smoking history. The examiner considered the Veteran's lay statements but found that the pathophysiology of COPD, rather than the in-service exposures, determined their impact. The examiner concluded that there was no evidence that COPD had been aggravated beyond its natural course, explaining that COPD could be progressive, and that the Veteran had developed emphysematous changes. The June 2017 and August 2021 VA examinations, when read together, are adequate because the examiners thoroughly reviewed the claims file and discussed the relevant evidence, to include whether COPD was related to in-service exposure to black smoke and asbestos. As such, the VA examinations are assigned greater probative value and weigh against the claim. Therefore, the medical evidence does not support service connection on a direct basis, to include as due to in-service asbestos exposure. Turning to secondary service connection, the Veteran has been diagnosed with COPD and is service connected for asbestosis; therefore, the first two elements of secondary service connection have been met. However, the medical evidence does not support a nexus between the two. Specifically, an August 2021 examiner opined that it was less likely than not that COPD was proximately due to or the result of service-connected asbestosis, explaining that asbestosis and COPD were separate conditions in effect with different pathophysiological mechanisms. The examiner thoroughly reviewed the claims file and discussed the relevant evidence- to include whether the evidence of record established a nexus between COPD and service-connected asbestosis, considered the Veteran's assertions, and provided a thorough supporting rationale for the conclusion reached. As such, the August 2021 VA medical opinion was adequate and is assigned high probative value. The medical record does not otherwise establish a relationship between COPD and a service-connected disability; accordingly, the medical evidence does not support service connection for COPD as secondary to service-connected asbestosis. In sum, the medical evidence does not establish a nexus between COPD and either service, to include in-service asbestos exposure, or service-connected asbestosis. Therefore, based on the above, the medical evidence weighs against the claim. The Board has considered the Veteran's lay statements and testimony regarding the etiology of his COPD. He is competent to report symptoms because this requires personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of any current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal and by STRs and clinical records obtained and associated with the claims file. Here, the Board attaches greater weight to the clinical findings than to the lay statements. Based on the above, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, 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.