Citation Nr: 21022384 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 09-27 670A DATE: April 15, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to nonservice-connected type II diabetes mellitus, is denied. FINDING OF FACT COPD is not shown to be causally related to an in-service injury or disease or to have been caused or aggravated by another service-connected disability. CONCLUSION OF LAW The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1955 to January 1959. The Veteran passed away in December 2016, and the appellant has been substituted on his pending appeal as his surviving spouse. 38 U.S.C. § 101(3); 38 C.F.R. § 3.1010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2008 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded the issue on appeal for additional development in April 2016. However, before the ordered Decision Review Officer (DRO) hearing could be scheduled the Veteran died. As such, the Board finds that the directives have been substantially complied with and the appeal is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In the April 2020 appellate brief the appellant’s representative appears to argue that the Board should take jurisdiction over the issue of entitlement to service connection for type II diabetes mellitus as related to dioxin exposure, stating that the Board must grant service connection for “the residuals of the inextricably intertwined chemical exposure.” However, it is well-established that a claim for benefits must, even if only at a high level of generality, identify the sickness, disease or injury for which benefits are being sought. Sellers v. Wilkie, 965 F.3d 1328, 1337–38 (Fed. Cir. 2020); see Veterans Justice Grp., LLC v. Sec’y of Veterans Affairs, 818 F.3d 1336, 1356 (Fed. Cit. 2016). In this case, during his life the Veteran only filed two claims for compensation, in March 1970 and May 2007. The March 1970 claim listed only a varicocelectomy as the claimed disability, and the May 2007 claim specifically listed “residuals of a left scrotal surgery” and generally indicated that the Veteran had a lung disability resulting from asbestos exposure aboard ship. Neither claim in any way indicates that the Veteran intended to file a claim for service connection for diabetes mellitus specifically or identifies diabetes as a claimed disability at even a high level of generality. Further, the rating decision on appeal did not adjudicate the issue of entitlement to service connection for diabetes mellitus nor was an appeal of that issue perfected to the Board. Sellers, 965 F.3d at 1337–38. There mere fact that the representative is now alleging that diabetes mellitus was also related to asbestos exposure does not confer jurisdiction over that claim on the Board when a claim for service connection for diabetes mellitus was never filed. As the Veteran at no point filed a claim for service connection for diabetes mellitus, nor perfected an appeal of such a claim, the Board does not have jurisdiction over that issue. Veterans Claims Assistance Act of 2000 (VCAA) The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). VA requested records regarding asbestos exposure from the Naval Sea Systems Command (NAVSEA) in September 2014. 38 C.F.R. § 3.159(c)(2). In October 2014 correspondence the Department of the Navy stated that they had no records concerning the Veteran’s ship and asbestos or asbestos exposure, and therefore that further attempts to obtain the records would be futile. Id. In August 2015 correspondence, VA provided notice of the records they attempted to obtain, the efforts made to obtain them, further actions VA was going to take on the claim, and that it was ultimately the claimant’s responsibility to submit the records. 38 C.F.R. § 3.159(e). Thus, VA made adequate attempts to obtain the records, and provided sufficient notice of their inability to do so. 38 C.F.R. § 3.159(c)(2), (e). Neither the appellant, the representative nor the record has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). As such, the Board will proceed to adjudicate the issue on appeal. Service Connection Generally, to establish service connection a Veteran must show: “(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 or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened) by a service-connected disability. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). 1. Entitlement to service connection for COPD. The Veteran was diagnosed with COPD during a September 2015 VA examination. The Board notes that a July 2013 private opinion noted that the Veteran had chronic obstructive airway disease. However, both VA examiners stated that the Veteran had a diagnosis of COPD based on x-ray imaging, and the Veteran’s VA treatment records exclusively characterize the disability as COPD. Further, a July 2016 treatment record from the same physician who authored the July 2013 opinion noted that the Veteran’s chest x-rays supported a diagnosis of COPD. As such, the Board finds that the evidence establishes that the proper diagnosis for the Veteran’s lung disability was COPD. Turning to an in-service injury or disease, service treatment records do not reflect a diagnosis of or treatment for COPD, and the Veteran’s January 1959 separation examination noted that his lungs were normal. Instead, the appellant has argued that the Veteran was exposed to asbestos while serving aboard ship as a boatswain’s mate. Specifically, during his life the Veteran asserted that his bunk was directly under the ceiling of the ship, which was lined with asbestos. Neither the Veteran nor the appellant have otherwise endorsed any duties which required the Veteran to come into contact with asbestos, or explained how the Veteran was aware that there was asbestos in the ceiling above his bunk. However, the Board notes that the military occupational specialty of boatswain’s mate is recognized to have a minimal probability of asbestos exposure, thus indicating exposure was possible as part of the Veteran’s general duties. The appellant’s representative has also argued that it is commonly recognized that asbestos was widely used in the construction of ships during the period when the Veteran served. Based on the foregoing, and in the interest of affording the full benefit of the doubt, in-service asbestos exposure has been shown. However, the preponderance of the evidence is against a finding of a nexus between the Veteran’s COPD and his service, including asbestos exposure. The appellant, as well as the Veteran during his life, has asserted that the Veteran’s COPD was casually related to his asbestos exposure in service. While competent to report the onset and persistence of lay observable symptoms, the assertions concerning a direct causal relationship are not competent as to provide such an opinion requires medical training and knowledge beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As the statements are not competent, they are entitled to no probative weight. VA obtained opinions concerning the etiology of the claimed COPD in September 2015 and September 2020. The September 2015 examiner stated that it was less likely than not that the COPD was causally related to the Veteran’s service. In support of this opinion the examiner stated that the COPD was more likely caused by the Veteran’s history of smoking and further that the evidence of record did not reflect radiographic findings consistent with lung disease attributable to asbestos exposure, specifically citing to radiographic images taken at the time of the September 2015 examination and opinion. The September 2020 VA examiner also stated that the COPD was less likely than not related to the Veteran’s period of service. The examiner first noted that the Veteran was diagnosed with COPD over 50 years after his separation. The examiner further explained that asbestos related disabilities usually result in findings of fibroblast foci, fibrosis of the pleura, pleural plaques, and malignancies such as non-small cell and small cell carcinoma of the lung and malignant mesothelioma. The examiner stated that these findings are distinctly different from those found in individuals with COPD. The examiner then explained that if asbestos was the cause of the Veteran’s lung disability, then after 53 years following exposure the Veteran would have had much more advanced findings consistent with asbestos exposure, which was not the case based on the radiographic evidence of record. Finally, the examiner stated that the Veteran smoked one pack of cigarettes per day for 50 years, and that this was at least as likely as not the actual cause of his COPD. There is no evidence that the above examiner was either not competent or credible. Further, both opinions were supported by well-reasoned rationales which discussed the nature and presentation of COPD and asbestos related disabilities, identified another more likely cause for the COPD, and directly cited to radiographic and medical evidence of record. As such, the Board finds that the opinions are entitled to significant probative weight as to the presence of a nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In support of the claim for service connection, the Veteran submitted September 2008 and July 2013 opinions from private physicians. The September 2008 opinion stated that asbestos exposure may have exacerbated the COPD present in the Veteran. The July 2013 opinion stated that the asbestos exposure can contribute to constrictive lung disease, and diagnosed the Veteran with chronic airway obstruction. However, neither examiner provided a rationale supporting their conclusions that the asbestos exposure may have resulted in or contributed to the Veteran’s COPD, nor did either examiner address the Veteran’s significant smoking history as reflected in his treatment records and discussed by the VA examiners. Id. Further, the use of the words “possible,” “may,” or “can be” make a doctor’s opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127–28 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)). It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). Here, both opinions are speculative in nature as they opined only that asbestos exposure “may” or “can” exacerbate or contribute to the development of COPD or lung disease. Id. In light of the unsupported and speculative nature of both opinions, the Board finds they are entitled to no probative weight. VA and private treatment records reflect that the Veteran was diagnosed with and treated for COPD during his life. However, they contain no opinions linking the COPD to the Veteran’s period of service. An August 2009 VA treatment record reflects that the Veteran was a former smoker, smoking a pack per day for 50 years before quitting in approximately 1997. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran’s COPD was causally related to his active service. As discussed above, the Veteran’s and the appellant’s assertions that the COPD is due to asbestos exposure are not competent, and therefore entitled to no weight. Further, the two private opinions provided speculative, unsupported conclusions and therefore are also entitled to no probative weight. Conversely, the two VA examiners provided clear conclusions that the COPD was not related to the Veteran’s service, including asbestos exposure, and provided supporting rationales that cited to the nature of COPD and the lack of objective imaging results reflecting asbestos associated lung disease. The Board notes that the appellant’s representative has advanced several arguments in support of the current appeal. The representative initially argued that while the VA opinions attribute the COPD to smoking, the Veteran quit smoking in 1997 and COPD was not diagnosed until 2008. The representative further stated that the body generally recovers following the cessation of smoking and that the examiner did not explain “how not smoking causes smoking related disease.” In support of these assertions the representative cited two internet articles discussing the benefits of discontinuing smoking. Thus, in essence the representative appears to be arguing that the Veteran’s COPD could not have been due to smoking because the Veteran stopped smoking in 1997. However, neither of the VA examiners indicated that the Veteran either currently smoked or never stopped smoking, and instead attributed his COPD to his history of smoking. Further, the assertion that the Veteran’s COPD could not have been due to smoking because the Veteran stopped smoking is not supported by the cited articles. Both articles simply note that a cessation of smoking may, over time, reduce an individual’s risk of developing adverse health effects associated with smoking, such as COPD. The articles do not assert or support the premise that stopping smoking means that an individual is no longer at risk to develop smoking-related disabilities. As such, the Board finds these arguments concerning the examiners’ conclusions to be unpersuasive. The representative also argued that asbestos exposure causes both obstructive and restrictive lung disease. In support of this assertion the representative cited to an article which generally stated that obstructive lung disease and restrictive lung disease may be associated with asbestos exposure. However, the cited article does not address the specific facts of the Veteran’s case, nor does it offer a clear conclusion linking COPD to asbestos exposure. Wallin v. West, 11 Vet. App. 509, 514 (1998); see Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Further, the article itself continues on to state that it is uncommon for asbestos exposure to cause clinically significant airway obstruction, and that if clinically significant obstructive impairment is present then another disease process is likely occurring simultaneously. As the cited article does not provide a clear conclusion linking COPD to asbestos exposure, the Board finds this argument to be unpersuasive. As such, the only competent and credible evidence of record concerning a nexus are the VA examinations, which state that the COPD is less likely than not related to service, and instead is due to the Veteran’s significant smoking history. As the preponderance of the evidence is against a finding of a nexus, service connection for COPD on a direct basis is not warranted. 38 C.F.R. §§ 3.102, 3.303. Finally, the Board notes that in the April 2020 appellate brief the appellant’s representative argued that the COPD was potentially caused by type II diabetes mellitus. However, the Veteran was not service-connected for diabetes mellitus during his life nor, as explained in detail in the introduction, is a claim for service connection for diabetes mellitus currently on appeal. As such, service connection for COPD as secondary to type II diabetes mellitus is not warranted. 38 C.F.R. §§ 3.102, 3.310. The preponderance of the evidence weighs against a finding that the Veteran’s COPD was causally related to his service, to include asbestos exposure. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.