Citation Nr: 21030726 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-35 776A DATE: May 19, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), on the basis of substitution, is denied. FINDING OF FACT The probative evidence of record does not demonstrate that the Veteran's COPD was related to his military service, to include in-service exposure to asbestos. CONCLUSION OF LAW The criteria for service connection for COPD, to include as due to in-service asbestos exposure, on the basis of substitution, have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1943 to February 1946. He died in February 2015. The appellant is the Veteran's surviving spouse and has been properly substituted as the appellant. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2020, at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). COPD The Veteran and now appellant generally assert that the Veteran's COPD was related to his period of active service. Specifically, the appellant contends that his COPD was a result of in-service exposure to asbestos, hexavalent chromium, lead, and/or second-hand smoke. Presumptive service connection for COPD is not available for Veterans exposed to asbestos. However, the fact that presumptive service connection is not available for a disability does not preclude the appellant from proving that all elements of service connection have nevertheless been met. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). First, the Board finds that the Veteran's VA treatment records and the December 2012 VA examination indicated that he had a diagnosis of COPD. Second, the Board finds that there was an in-service event, injury, or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). With regard to asbestos exposure, the Board notes that there are no statutes specifically dealing with asbestos and service connection for asbestos-related diseases, and VA has not promulgated any specific regulations. However, VA has provided guidance for considering asbestos compensation claims. VA has acknowledged a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. However, the pertinent guidelines of service connection in asbestos-related cases are not substantive rules, and there is no presumption that a Veteran was exposed to asbestos in service. See Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); see also VAOPGCPREC 04-2000. When considering VA compensation claims, rating boards have the responsibility to ascertain whether or not service records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to determine whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. With respect to the second element of service connection, the Veteran's Military Occupational Specialty (MOS) of coxswain had a minimal risk of exposure to asbestos. Thus, the Veteran likely had minimal exposure to asbestos in service based on his military occupational specialty (MOS) as a coxswain. Asbestos exposure may nevertheless be conceded if the totality of the evidence supports a finding of in-service asbestos exposure. Any evidence that is probative may serve to establish asbestos exposure. The Veteran stated in the September 2012 statement in support of claim that his sleeping bunk was the top bunk in the bow area and the asbestos wrapped pipes ran directly above his bunk, only six or so inches above his face. He indicated that he would often grab hold of the pipes for support and that his blanket was often covered with asbestos particles. The Board therefore finds that the Veteran's service is consistent with asbestos exposure. However, the Board finds that, considering the exposure information and the latency period noted above, a relationship between the Veteran's asbestos exposure and his COPD has not been established. The Veteran's service treatment records reveal no complaint, treatment, or diagnosis of a respiratory condition during active duty service. In fact, in the February 1946 separation examination clinical evaluation revealed that his lungs and chest were normal. The Veteran's post-service medical records are silent for any respiratory conditions until March 2011, well over 60 years following service discharge. In a September 2020 medical opinion, the examiner opined that the Veteran's COPD was less likely than not due to his in-service exposure to asbestos and chemicals. In support of this conclusion, the examiner noted that the primary cause of COPD was tobacco smoking and that tobacco smoking accounted for 90 percent of COPD risk. The examiner stated that cigarette smoking induces macrophages to release neutrophil chemotactic factors and elastases, which lead to tissue destruction. The examiner noted that the Veteran's history was positive for 20 years of tobacco abuse. The examiner indicated that asbestos exposure caused interstitial lung disease, a restrictive form of lung disease and that pleural effusions were not indicative or diagnostic of asbestosis, mesothelioma, or fibrotic/interstitial lung disease. The examiner found that there was no biopsy or cytology evidence to support the diagnosis of asbestos related lung disease and determined that the pack year number of smoking 20 was highly significant and the most likely cause of COPD. The Board finds that the September 2020 VA medical opinion is adequate because the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has also considered the statements of the Veteran and appellant asserting that the Veteran's COPD was related to his military service, to include in-service asbestos exposure and chemical exposure. However, to the extent that the Veteran and appellant are competent to opine on this matter, the Board finds that the specific, reasoned opinion of the VA examiner is of greater probative weight than the Veteran's and appellant's lay assertions in this regard. The examiner reviewed the claims file and the Veteran's own reported history, and she has training, knowledge, and expertise on which she relied to form her opinion. The examiner also provided a rationale for the conclusion reached. Furthermore, the appellant has submitted no nexus evidence, aside from lay statements, that would link the Veteran's exposure to asbestos to his COPD. Although lay persons may be competent to provide opinions as to some readily observable medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific question in this case concerns the medical cause(s) of the Veteran's COPD, which falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, while the appellant may sincerely believe that the Veteran's COPD is related to his active service, such belief cannot constitute probative evidence in favor of the claim. In this case, the Board finds the most probative evidence weighs against the claim. The first complaints and objective evidence of a respiratory condition did occur until approximately 60 years after service. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, the September 2020 VA examiner opined against the claim and provided sufficient rationale and there are no contrary medical opinions. In sum, the Board finds that the preponderance of the probative evidence is against finding that the Veteran's COPD originated in service, to include claimed exposure to asbestos, or is otherwise etiologically related to service. In reaching the above conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). CHRISTOPHER J. O'DONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.