Citation Nr: 21012123 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-40 276 DATE: March 3, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), emphysema and asthma, is denied. FINDINGS OF FACT 1. The Veteran has not been shown to have asbestosis or any other asbestos-related disease. 2. The preponderance of the evidence is against finding that the Veteran’s currently diagnosed lung conditions began during active service, or is otherwise related to an in-service injury, event or disease. CONCLUSION OF LAW The criteria for service connection for COPD, emphysema and asthma are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from May 1974 to May 1994. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2018. A transcript of the hearing has been associated with the record. The Board remanded the claim on appeal in June 2020 for further development of the Veteran’s claim of in-service asbestos exposure and new VA examination. That development is complete in substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for COPD, emphysema and asthma. The Veteran contends that his COPD and emphysema are due to in-service asbestos exposure. In the alternative, his COPD emphysema is due to smoking which he began while in service. See July 2015 Notice of Disagreement, pg. 2. 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 disability and in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Alternatively, for a showing of chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and establish chronicity at the time. 38 C.F.R. §§ 3.303 (b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomology is required only where a condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As to the first element of Shedden, the Veteran’s October 2020 VA examination notes a current diagnosis of COPD, asthma and emphysema. Thus, the Board finds the first element is met. As to the second element of Shedden, the Veteran must show an in-service incurrence of a disease or injury or aggravation of a disease or injury. As a preliminary matter, the Board notes that service connection is precluded for disabilities due the use of tobacco products during service. 38 U.S.C. § 1103; 38 C.F.R. § 3.300 (applying to claims filed after June 9, 1998). In addition, the language of the statute and regulation encompasses addiction to tobacco use during service that result in a later disease from continued use. The Veteran consistently reported a 10- to 15-year cigarette smoking habit. See July 2015 Notice of Disagreement; July 25, 1991 Service Treatment Record (STR) (noting a 14-year history of smoking); August 18, 2020 VA Treatment record (noting smoking 1 to 1.5 pack per day history 10 to 15 years). Service connection for COPD, asthma and emphysema due to smoking is precluded by law. Thus, the Board will move to the asbestos-related exposure theory of entitlement. The Veteran contends that his COPD is due to asbestos exposure while serving at Fort Ord in 1974 and while deployed to Iran in 1979. See July 2015 VA Form 9. Specifically, he indicated that buildings at Fort Ord were known to have asbestos and he was “exposed to the asbestos in those buildings.” See id; see also November 2012 Statement in Support of Claim. He testified that he was in buildings which contained asbestos and two weeks later he had a respiratory illness, or cold. He testified that the respiratory problem “could have been caused by the asbestos.” August 2018 Board Hearing Transcript, pg. 3-4. He testified that he did not work with, or around, asbestos. See id. He also testified that asbestos may have been in the buildings in which he was housed while serving in Iran. Id. In a June 2020 Board decision, this matter was remanded for the Agency of Original Jurisdiction (AOJ) to take action to verify in-service asbestos exposure. In June 2020, as well as November 2019, the AOJ requested that the Veteran provide where, when and how he was exposed to asbestos as well as medical evidence of an asbestos-related disease. See November 2019 and June 2020 Subsequent Development Letters. The Joint Service Records Research Center (JSRRC) confirmed the Veteran’s service at Fort Ord in 1974 and Iran in 1979. See JSRRC Letters dated December 10 and December 31, 2020. The Veteran’s DD 214 shows he served in the Army as an administration specialist and Chaplin assistant. See MOS, DD 214. The AOJ reviewed a list of MOS specialties with probability of exposure to asbestos. See August 2020 Asbestos MOS Handout. The Veteran’s MOS is not listed. The AOJ sent the Veteran an asbestos questionnaire in 2019 and 2020; there is no response from the Veteran in the claims file. In July 2020, the AOJ prepared a formal finding outlining steps taken to assist the Veteran and notified the Veteran of VA’s inability to verify exposure to asbestos in service. Therefore, the Board finds that the Veteran’s exposure to asbestos is not verified. Regarding the Veteran’s statement that he was treated for a respiratory illness, or possible COPD— which could have been caused by asbestos exposure, the Board notes that his STRs show he was treated for upper respiratory illnesses. In 1986, his STR documents treatment for coughing and chills with diagnosis of viral syndrome. See November 25, 1986 STR. In 1998, his STR notes a complaints of chills congestion, runny nose and a cough with a diagnosis of an upper respiratory infection. See November 1988 STR. In 1992, his STR notes complaints of shortness of breath and wheezing with a diagnosis of a cold. See November 30, 1992 STR. The upper respiratory complaints do not correspond with his reported asbestos exposures in 1974 and 1979. See Board Hearing Transcript, pg. 3-4. Upon review, the Board finds no treatment for COPD emphysema, asthma or lung disease while in service. As to the last element for service connection the Veteran must show a causal relationship between the current disability and an in-service disease or injury. There are no medical opinions of record that medically link his COPD, asthma or emphysema to service, to include due to in-service asbestos exposure. Weighing against the Veteran's claim is the January 2020 VA examiner’s medical opinion, which stated that the Veteran’s currently diagnosed conditions, which includes COPD, asthma and emphysema, were less likely than not related to service due to a lack of in-service asbestos exposure, lack of in-service treatment and that it was more likely than not due to long-term smoking. But as the opinion partially relied on a lack of documentation of significant asbestos exposure before development was complete, the Board remanded for an addendum medical opinion. Upon remand, the October 2020 VA examiner reviewed the claim file after development for possible asbestos exposure was complete. The examiner conducted an in-person examination, documented the history of the Veteran’s COPD, asthma and emphysema and considered lay statements. See October 2020 Examiner Opinion, pg. 2. The examiner opined that it was less likely than not that the Veteran’s currently diagnosed lung conditions were service related because it was first diagnosed in 2002, approximately eight years after service and there was no documentation of asbestos exposure. The examiner did not find evidence of asbestos-related lung disease and referred to her prior opinion, which offered an alternative etiology for the Veteran’s COPD, asthma and emphysema—a history of long-term smoking. See id. (citing January 2020 VA Examiner Opinion). The Board recognizes the Veteran’s belief that his COPD is due to exposure to asbestos exposure; however, the Board does not find the Veteran competent to opine as to the etiology of the condition. See Jandreau, 492 F.3d at 1377. The issue is medically complex, as it requires expert medical knowledge. Therefore, in this case, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Id. The Board is cognizant that presumptive service connection can be established where there is evidence of continuity of symptomology of a chronic condition since service. See 38 C.F.R. § 3.309. However, COPD, asthma and emphysema are not a chronic condition under 38 C.F.R. § 3.309. Moreover, the record does not contain lay assertions or reports by the Veteran of breathing trouble during service aside from a flu virus, a cold and upper respiratory infection. Nor does the record contain lay assertions or reports of ongoing symptomatology since service or within a year of service. The record indicates that he was diagnosed with COPD, asthma and emphysema eight years after service. As such, presumptive service connection for COPD, asthma and emphysema based upon continuity of symptomatology since service is not warranted. The Board finds that the most probative evidence of record does not medically link the Veteran's COPD, asthma or emphysema to service, to include due to asbestos exposure. Rather, the 2020 VA examiner medically linked his COPD, asthma and emphysema to a history of smoking. No competent evidence of a relationship between the Veteran's COPD, asthma and emphysema and his period of service is of record. Accordingly, the Board finds the preponderance of the evidence to be against the claim, and service connection must therefore be denied. The benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, 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.