Citation Nr: 1410329 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 07-14 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a respiratory disorder as a result of exposure to asbestos or herbicides (Agent Orange). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active military duty from May 1969 to April 1973. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This matter was previously before the Board in October 2010, at which time it found that new and material evidence had been received to reopen a previously denied claim for service connection for a respiratory disorder and remanded the claim for further evidentiary development. The case was returned to the Board in September 2011 and the Board denied the claim. The Veteran thereafter appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2013 decision, the Court vacated the September 2011 Board decision, and remanded the matter for readjudication. FINDINGS OF FACT 1. The Veteran died in July 2012 of respiratory failure. 2. Resolving all doubt in favor of the Veteran, the Veteran had chronic obstructive pulmonary disease (COPD) related to his exposure to asbestos during his active duty service. CONCLUSION OF LAW Service connection for COPD is established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed, cannot be considered prejudicial to the Veteran or his wife, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. 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.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In vacating the Board's prior denial, the Court found that the "Board's statement of reasons or bases explaining its determination that the December 2010 VA medical examination report is adequate and explaining the probative value it assigned to that report is deficient." Further, the Court explained that the Board did not adequately explain why the private 2006 CT scan was not objective evidence supporting the private physician's opinion that the Veteran suffered from asbestosis related to asbestos exposure during service. The Court also noted that after the Board's decision, the Veteran died and the RO granted the Veteran's wife benefits for the cause of the Veteran's death. The RO noted that the Veteran's death was caused by respiratory failure resulting from COPD, and that a VA medical examiner opined in January 2013 that the Veteran's "military asbestos exposure at least as likely as not caused or substantially contributed to the Veteran's death." Because the rating decision postdated the Board's decision, the Court could not consider it during its review. See Obert v. Brown, 5 Vet. App. 30, 32 (1993). The Court noted that this resulted in a "problematic" result because the rating decision and the VA medical opinion undermine the appealed Board decision. In reviewing the additional evidence, service connection for COPD is warranted. The Veteran died in July 2012 and the death certificate lists the primary cause of death as respiratory failure and the underlying cause as COPD. A VA medical examiner provided the following opinion in January 2013: "[The] Veteran was a chronic smoker and [had] been exposed to asbestos in varying concentrations through his service experience. COPD can be triggered by the inhalation of cigarette smoke, foreign fumes or similar substances. Often, most of these irritants are inhaled at the patient's workplace. Because asbestos was widely used at many military jobsites and equipment, COPD patients may have inhaled these fibers among others that contributed to their condition. Asbestos has not been directly linked to COPD, but asbestos exposure may be one of the factors that contribute to the development of the condition. Lungs that have been weakened by COPD may be much more susceptible to additional lung damage caused by asbestos. Additionally, pre-existing cases of COPD may be exacerbated by asbestos exposure. "Various scientific studies have reported a statistically significant incidence of COPD among those exposed to toxic materials such as asbestos and silica. A Swedish study of 316, 729 male construction workers found the mortality rate from COPD was more than two and a half times higher in participants who had been exposed to airborne toxins, including asbestos, than in patients who had not been exposed to occupational dust. Exposure to inorganic dust even affected participants who had never smoked and were therefore at a considerably low risk of developing COPD. Based on this information it is probable that the Veteran's COPD was worsened by asbestos exposure. In view of this, the military asbestos exposure is at least as likely as not caused or substantially contributed to the Veteran's death." While the previous VA examination reports from September 2006 and December 2010 indicated that the Veteran had no asbestos-related disease, the January 2013 opinion contradicts those earlier opinions. Further, there are private medical opinions and records that also support a finding that the Veteran's lung condition was related to asbestos exposure during service. In the prior denial, the Board gave more probative weight to the VA examination than the private medical opinions. Given the January 2013 VA medical opinion, the evidence weighs in favor of granting service connection. Accordingly, the Board finds that service connection is warranted for COPD. Reasonable doubt is resolved in the Veteran's favor. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Entitlement to service connection for COPD is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs