Citation Nr: 21026776 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-41 823 DATE: May 4, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had COPD at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1962 to December 1964. The Board sincerely thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board videoconference hearing in June 2020. The Board held the record open for 90 days to allow for the submission on additional evidence. However, no additional evidence was received. The Board remanded the claim in September 2020 for additional development. There has been substantial compliance with the remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for COPD. The Veteran contends that he has COPD due to asbestos exposure during active duty. During the June 2020 hearing and a May 2016 VA Respiratory Conditions examination, the Veteran reported that his private primary care physician diagnosed him with COPD and treated him for this disorder. In October 2020, VA requested that the Veteran complete and submit VA Forms 21-4142 and 21-4142a so that VA could obtain private treatment records, or provide private treatment records himself. The Veteran did not respond to VA's request. Thus, VA has been unable to obtain potentially favorable evidence. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). On an August 2017 VA Form 9, the Veteran stated that the [May 2016] VA examiner stated that he smoked 1 12 packs of cigarettes for more than 30 years and then stated that he smoked 45 packs a year. The examiner did not state that the Veteran stopped smoking in 1983. While on the ship, he was exposed to asbestos at least once every two weeks. He knew and VA knew that the problems with asbestos may show up years [later]. Review of the report of the May 2016 VA Respiratory Conditions examination reveals that all subjective and objective findings necessary for adjudication of the Veteran's claim were observed and recorded, and thus the examination appears complete and adequate. In addition, another VA medical opinion was obtained in January 2021. This opinion, and post-service VA and private treatment records, all discussed below, support the result of the May 2016 VA examination that the Veteran did not have COPD. The August 2017 statement of the case acknowledged that the Veteran's military occupational specialty had a probable likelihood of exposure to asbestos while the veteran was serving on active military duty. 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 the Veteran does not have a current diagnosis of COPD and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). VA CAPRI and private treatment records do not include findings or diagnoses of COPD. A January 2016 Department of Health and Human Services Roentgenographic Interpretation shows abnormalities it describes as miscellaneous abnormalities consisting of post-surgical changes/sternal wire. The report of the May 2016 VA Respiratory Conditions examination provides that the Veteran did not now have or had never been diagnosed with a respiratory condition. In a corresponding May 2016 VA medical opinion, the VA examiner stated that there was no objective evidence of asbestosis or COPD. The Veteran may have been exposed to asbestosis in service but at discharge he had no respiratory symptoms. X-rays of the lungs showed no evidence of fibrosis in the lower lobes which is pathognomic for asbestosis. Current PFT CXR and PFT findings did not indicate COPD or lung disease. There was no significant reduction in total lung capacity. A January 2021 VA medical opinion relates that the examiner reviewed the Veteran's e-folder and sets forth relevant history. Current and/or past COPD was not found. The submitted medical records did not contain documentation of current and/or past COPD. The Veteran complained of chronic cough in 2007, which was assessed to be a lisinopril side effect since the Veteran did not seek further medical treatment for chronic cough. Spirometry in 2007 was negative for COPD changes and was performed when the Veteran was still taking lisinopril. All chest x-rays taken in 2007 and 2008 were negative for COPD. The examiner observed that the Veteran stated that a radiological examination demonstrated a spot on the lungs in 4 different areas, diagnosed in Jackson, Tennessee. The examiner stated that this radiological examination was not available for review at that time. Earlier in the medical opinion, the examiner recited VA treatment records showing that in August 2020 the Veteran requested a letter stating that he had COPD and asbestosis. A September 2020 VA addendum relates that the Veteran stated he had brought documentation in and left it on the physician's desk showing a spot on his lungs in 4 different areas, and was diagnosed in Jackson, Tennessee, in 2016. A VA addendum by a VA physician dated the following day states that the Veteran's records showed no such abnormality. His last CT of the chest was clear. If he had any imaging, he could bring in that solitary report for the physician to review. As of right now, the physician did not have any records to fill out the paperwork that he had COPD and asbestosis. While the Veteran believes that he has a current diagnosis of COPD, as a layperson he is not competent to opine as to this complex medical matter. Specialized medical training and expertise are required. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 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 competent medical evidence discussed above. In light of the above, the Board finds that service connection for COPD is not warranted and must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.