Citation Nr: 21014423 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 20-10 298 DATE: March 12, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has COPD due to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection COPD have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to September 1993. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board in June 2020. The Veteran’s claim was remanded for additional development. The case is now again before the Board for further appellate action. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. The Veteran contends that he has COPD that is related to an in-service, event, illness, or injury, as he believes he has COPD due to in-service exposure to asbestos, diesel fumes, and air pollution. Turning to the evidence, a review of the Veteran’s service treatment records does not reflect any complaints, findings, or treatment for any conditions related to COPD. A November 1982 service treatment record reported the Veteran had a productive cough for one week with no shortness of breath. He was diagnosed with an upper respiratory infection. A March 1984 service treatment record reported that the Veteran experienced coughing and congestion but had no shortness of breath. He was diagnosed with acute bronchitis. A March 1993 separation report of medical history documented the Veteran’s negative responses to whether he had ever experienced shortness of breath or a chronic cough. Reports of medical history compiled in November 1975 and September 1980 also documented the Veteran’s negative responses to whether he had ever experienced shortness of breath or a chronic cough. A November 2008 private medical record reported the Veteran’s lungs were clear, without wheezes, rales, or rhonchi. The Veteran was provided a VA respiratory conditions examination in June 2018. The examiner diagnosed the Veteran with COPD. The Veteran reported that the onset was in 2008. He indicated the condition had persisted with shortness of breath and dyspnea on exertion. He was able to walk 1/2 mile without having to stop and rest. He does not smoke cigarettes. In March 2019, the Veteran’s representative submitted a notice of disagreement along with an addendum. In the addendum, the Veteran’s representative contended that the Veteran was entitled to service connection for COPD due to exposure to asbestos, diesel fumes, and other air pollution. The addendum referenced several internet articles in support of the Veteran’s claim. The Veteran was provided another VA respiratory conditions examination in August 2020. The Veteran reported that he experienced a gradual onset of worsening shortness of breath in 2008. The examiner reported a diagnosis of COPD in 2008. The examiner opined that the Veteran’s COPD was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner provided the following: A) While asbestos is an established etiology of COPD, the Veteran was demonstrated to have had only minimal degree of exposure during service. B) There is no objective evidence of the Veteran having exposure to diesel fumes which deviates from what would be generally expected; furthermore COPD is a common condition which often occurs without a specific underlying etiology. C) There is no objective evidence of the Veteran having exposure to air pollution which deviates from what would be generally expected; furthermore COPD is a common condition which often occurs without a specific underlying etiology. In November 2020, the RO sent the Veteran a development letter inquiring about the Veteran’s in-service exposure to asbestos, including how and when he was exposed to asbestos. The letter indicated that, if a response was not received within 30 days, a decision on his claim may be made. The Veteran did not provide a response to the developmental letter, so a Supplemental Statement of the Case was issued in January 2021 denying the Veteran’s service connection claim. In March 2021, the Veteran’s representative submitted a VA Form 21-4138, Statement in Support of Claim, written by the Veteran in December 2020, in which the Veteran reported that he was aboard different ships and “I don’t know where I got this asbestos.” As previously described, the Veteran’s service treatment records show no evidence of treatment or diagnosis for chronic obstructive pulmonary disease. A March 1993 separation report of medical history documented the Veteran’s negative responses to whether he had ever experienced shortness of breath or a chronic cough. The Veteran reported that the onset of his COPD was in 2008. A lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates the onset of the Veteran’s COPD to many years after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his claimed respiratory disorder. Consequently, the Board gives more probative weight to the August 2020 examination report and medical opinion. The examiner opined that the Veteran’s COPD was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner explained that the Veteran had a minimal degree of exposure to asbestos during service and there was no objective evidence of the Veteran having been exposed to diesel fumes or air pollution that deviates from what would be generally expected. Moreover, the examiner explained that COPD is a common condition that often occurs without a specific underlying etiology. The Board acknowledges that the Veteran’s representative submitted excerpts and references to internet articles in support of the Veteran’s claim. In this regard, medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, treatise evidence must “not simply provide speculative generic statements not relevant to the [claimant]’s claim.” Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, “standing alone,” must discuss “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.” Id. (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (generic statement about the possibility of a link between chest trauma and restrictive lung disease is too general and inconclusive). In this case, the article excerpts cited by the Veteran’s representative only provide general information as to the possibility that a possible relationship exists between the Veteran’s COPD and in-service exposure to asbestos, diesel fumes, and other air pollution. These excerpts are not accompanied by any corresponding clinical evidence specific to the Veteran and do not suggest that his COPD was related to his service with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. As such, the Board finds this information to not be relevant as to the matter for consideration and, therefore, is not probative to this case. See Wallin, 11 Vet. App. at 514; Sacks, 11 Vet. App. at 317. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for COPD. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran’s claim for COPD must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.