Citation Nr: 21024571 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 20-08 748 DATE: April 23, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) due to asbestos exposure is denied. FINDING OF FACT The Veteran’s COPD did not have its onset in service and is not related to any in-service event, injury, or disease, to include asbestos exposure. CONCLUSION OF LAW The criteria for service connection for COPD due to asbestos exposure have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U.S. Navy from April 1964 to April 1966. The Veteran testified at hearing in February 2021 before the undersigned. A transcript is associated with the record. 1. Entitlement to service connection for COPD due to asbestos exposure. The Veteran asserts that his COPD was caused by exposure to asbestos on his ship while he was in service. 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 current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that although the Veteran has a current diagnosis of COPD, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of COPD began during service or is otherwise related to an in-service injury, event, or disease. During the February 2021 hearing, the Veteran testified that he served aboard the USS Bennington, which was known to have asbestos. In other statements submitted in support of his claim, the Veteran described an explosion on his ship that caused the release of asbestos. Afterward, the materials were improperly disposed of and he believes this led to his exposure. As he has a current diagnosis and has reported an in-service event of exposure to asbestos, the appeal turns on whether a medical nexus exists. The record contains conflicting medical opinions regarding whether the Veteran’s COPD is at least as likely as not related to an in-service injury, event, or disease, including exposure to asbestos. The January 2019 VA examiner found that the Veteran’s COPD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the examiner found that there was no documented asbestosis or lung disease in service. The Veteran smoked cigarettes for many years and was diagnosed with COPD while still smoking 15 years ago. As such, the COPD was directly related to his cigarette smoking, he had no asbestosis, and there is no correlation between his COPD and a prior episode of pleurisy/empyema. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A disability benefits questionnaire was completed by a private examiner in January 2019. It confirmed a diagnosis of COPD (and emphysema) and provided testing results regarding his current symptoms and severity. However, there was no opinion as its etiology or onset. The Veteran submitted another private opinion in March 2021 indicating that his COPD was related to an onset or events in service. This opinion is, however, less probative than the VA examiner’s opinion. There is no indication that the private examiner reviewed service treatment records. Moreover, the box for “as least as likely as not caused by or a result of” was checked, but the following blank line was not completed and there was no supporting rationale. The opinion appears to be based on nothing more than a conclusory pre-written statement. Absent a rationale, this opinion is afforded less probative weight than the VA opinion. During the hearing, the Veteran was informed of the requirements of a proper medical nexus and the record was held open for an additional 60 days in order for him to contact his physician. The Board acknowledges that the Veteran’s sincerely believes his COPD is related to in-service exposure to asbestos. However, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the January 2019 VA opinion. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine 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. 55, 55-57. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Price, 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.