Citation Nr: A21019554 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 191014-38420 DATE: December 7, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and emphysema, is denied. FINDING OF FACT The preponderance of the evidence is against finding that a respiratory disorder, to include COPD and emphysema, is related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disorder, to include COPD and emphysema, have not been met. 38 U.S.C. §§ 1103, 1131, 5103A; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1980 to January 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal of a September 5, 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted an October 2019 Decision Review Request: Board Appeal (Notice of Disagreement) and elected to appear at a hearing before a Veterans Law Judge. The Veteran appeared at a hearing before the undersigned in August 2021. The Board may only consider the evidence of record at the time of the September 5, 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302 (a). In the September 2019 rating decision, the RO discussed the merits of the claim for entitlement to service connection for a respiratory disorder, and thus implicitly found that new and relevant and evidence was submitted regarding that issue. The Board is bound by this favorable finding and will proceed to adjudicate the issue on the merits. 38 C.F.R. § 3.104 (c). Additionally, the September 2019 rating decision found a current diagnosis of COPD. The Board is also bound by this favorable finding. In November 2021 correspondence, the representative requested a copy of an October 2021 Board hearing transcript. The October 2021 Board hearing concerned the issue of entitlement to service connection for a low back disorder with bilateral lower extremity radiculopathy which will be addressed in a later Board decision. A transcript of the October 2021 Board hearing has not yet been created. The representative will be provided with a copy of the October 2021 Board hearing transcript when it is created. However, as the October 2021 Board hearing is not relevant to the present appeal, the Board will proceed to adjudicate the present claim. The Veteran contends that he has a respiratory disorder, to include COPD and emphysema, which are related to in-service asbestos exposure. Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The service treatment records are silent for complaints or diagnosis of a chronic respiratory disorder, to include COPD or emphysema. On separation examination in March 1984 the Veteran's lungs and chest were found to be normal and the Veteran denied having or having ever had shortness of breath. Military personnel records note service aboard the USS Hull (DD-945) and USS Downes (FF-1070), and the Board concedes asbestos exposure on this basis. The Veteran first submitted a claim for service connection for breathing problems in January 2009. VA treatment records first note a complaint of "chest pain or shortness of breath" in March 2009. On VA examination in June 2009, the Veteran was diagnosed with COPD/emphysema based on chest x-ray. The examiner noted that the Veteran was exposed to asbestos aboard Navy ships, but also noted a history of smoking one pack of cigarettes per day for more than twenty years to the present. The examiner opined that the diagnosed COPD/emphysema was due to smoking, noting that there was "no evidence of asbestos related lung disease." VA treatment records through July 2019 show continuing diagnosis of COPD attributed to smoking but contain no indication of any relationship to asbestos exposure. At the August 2021 Board hearing, the Veteran described exposure to asbestos in service aboard Navy ships with coughing and shortness of breath during that period. The Veteran also stated that he started smoking cigarettes during service. He reported continuing to experience shortness of breath following service, but at the time he thought the symptoms were related to smoking. See August 2021 Transcript p. 5. The available evidence preponderates against finding that COPD was incurred in service or related to an in-service injury or disease. The only competent medical evidence of record as to the etiology of a respiratory disorder is the opinion of the June 2009 VA examiner which is against finding an in-service etiology of COPD/emphysema. The Veteran has not shown that he has the medical training, expertise, or experience to offer a competent opinion that any current respiratory disorder is related to that in-service injury or disease and the etiology of COPD/emphysema is medically complex, having multiple possible etiologies. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board thus attributes greater probative value to the competent opinion of the June 2009 examiner. The Board acknowledges the Veteran's reports that he began smoking in service. With respect to a tobacco-related disability, for claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C. § 1103 (a). Accordingly, service connection cannot be awarded based on a nexus with the Veteran's in-service tobacco use in this case. Notably, the evidence preponderates against finding that any chronic respiratory disorder was diagnosed during the Veteran's period of active-duty service, however, even if COPD or emphysema had its onset during active-duty service, service connection could not be awarded on this basis because the preponderance of the evidence in this case indicates that COPD/emphysema was caused by tobacco use. Therefore, the representative's November 2021 argument that COPD/emphysema had its onset in active-duty service and must therefore be presumed to be service-connected under 38 U.S.C. § 105 is also rejected. The Board acknowledges the representative's June 2021 request for the curriculum vitae of the June 2009 VA examiner. VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence. Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). If the Veteran wishes to challenge the competency of an examiner, the Veteran may request the curriculum vitae and other information about the qualification of a medical examiner. Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019). In this case, as the representative first challenged the competency of the June 2009 VA examiner after the September 2019 rating decision on appeal. Therefore, no pre-decisional duty to assist error results from failure to provide the curriculum vitae in this case, and remand is not warranted on this basis. The Board also acknowledges the representative's November 2021 argument that the June 2009 medical opinion is inadequate in that the "2009 examiner did not provide reasoning as to why [the Veteran's] asbestos [exposure] did not play a role in the development of his respiratory conditions." The June 2009 VA examiner explicitly found "no evidence of asbestos related lung disease" based on review of chest x-rays. The examiner's finding that there was "no evidence of asbestos related lung disease" is adequate to support that asbestos exposure was not a contributing cause of current COPD/emphysema. Furthermore, the Board finds that the June 2009 medical opinion is adequate for review because it was based on a complete review of the claims file at the time, includes consideration of an accurate factual history of the claim and is supported by sound reasoning. Significantly, the examiner reasoned that COPD/emphysema was unrelated to in-service asbestos exposure because there was "no evidence of asbestos related lung disease" following review of chest x-rays, and that the current COPD/emphysema was attributable to the history of smoking. Finally, the Board acknowledges that a January 2017 VA treatment record noted that the Veteran had a claim pending for Social Security Administration (SSA) disability benefits. Not all medical records must be sought, but only those that are relevant to the Veteran's claim. To conclude that all medical records are relevant would render the word relevant word relevant superfluous in the statute governing VA's duty to assist. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The relevant records for the purpose of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 (c)(2) are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim. Here, there was no indication made prior to the decision on appeal that any SSA records are relevant to the Veteran's claim on appeal. The Board finds no pre-decisional duty to assist error based on the generic mention of a claim for SSA benefits. (Continued on the next page) Based on the foregoing, the evidence preponderates against finding that a respiratory disorder, to include COPD and emphysema is related to an in-service injury or disease. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. 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.