Citation Nr: 22010331 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 16-57 319 DATE: February 23, 2022 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) including as related to exposure to asbestos is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that COPD began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from August 1954 to August 1958 and in the United States Navy from August 1959 to March 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case has been before the Board twice before. In January 2020 this issue was remanded to the agency of original jurisdiction (AOJ) for additional development to include a search for medical records from Walter Reed. It was then sent back to the Board in May 2020 and was again remanded for additional development to include a search for additional records pertaining to the Veteran's time in the Air Force. This case has now been returned to the Board for further appellate action. The Veteran had requested a Board hearing with his November 2016 Form 9. A hearing was scheduled for May 2019. However, the record indicates that the Veteran failed to appear. As the Veteran failed to appear for such a hearing without explanation, his request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.702(d) (2020). Service Connection - COPD The Veteran contends that his COPD was caused by exposure to asbestos while in service. Specifically, the Veteran reported that his service duties included working with arresting gear. Service records confirmed that the Veteran's military occupational specialty (MOS) was store clerk, which has a minimal probability of exposure to asbestos. Further, there was no indication that the Veteran was ever exposed to asbestos or had any complaints, treatment, or diagnosis for a respiratory disability. Post-service medical records from Walter Reed Army Medical Center (WRAMC) showed that the Veteran presented with an acute form of bronchitis in January 2006. A review of a November 2005 chest-X-ray revealed hyperinflation. A WRAMC physician stated that the Veteran likely had some level of COPD given his smoking history. He was later diagnosed with COPD in March 2011. The Board notes that 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). Furthermore, there is no indication from the record that the claimed disability was present to a compensable degree within a year of his separation from active service. Therefore, presumptive service connection is not warranted in this case. 38 C.F.R. § 3.309(a). The Board notes that the Veteran has not expressed any relationship to service other than his exposure to asbestos. Additionally, post-service medical records do not suggest that there is a relationship between the Veteran's COPD and service. In fact, a WRAMC physician suggested that the Veteran's COPD was likely a result of his smoking history. While the Veteran is competent to report observable symptoms of a respiratory disability or COPD, he is not competent to provide an opinion linking the disability to his active service, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, exposure to asbestos has not been established. The Veteran has not contended nor does the evidence show that his COPD was otherwise related to service, and COPD was not present to a compensable degree within one year of the Veteran's separation from active service. (Continued on the next page) Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to service-connection for COPD is not warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021). D. Ware Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.