Citation Nr: 1303045 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 09-32 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a respiratory disability, diagnosed as bronchiectasis and chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from August 1980 to October 1984. This matter is on appeal from a September 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The Veteran was exposed to toxic chemicals in the performance of his active duty service as a metal fabrication specialist. 2. The evidence of record shows that it is at least as likely as not that the Veteran's respiratory disability is not related to his toxic chemical exposure in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disorder, diagnosed as bronchiectasis and COPD, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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, 1131 (West 2002). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In service incurrence of a disability and a nexus to service can be established through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C.A. § 1154(a) (West 2002); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran is seeking entitlement to service connection for a respiratory disability, typically diagnosed as bronchiectasis, which he asserts is due at least in part to exposure to asbestos and other chemicals he inhaled during his active duty service as a metal fabricating specialist. In August 2009, he clarified that his military specialty required him to replace asbestos insulation in buildings, and that he also used asbestos blankets for fire safety purposes when welding. He also noted that would have inhaled other various chemicals typically involved with welding and cutting, although he did not specify which chemicals. In addition to the regulations listed above, the VA Adjudication Procedure Manual, M21-1 (M21-1), provides guidance on how to adjudicate claims based on exposure to some environmental hazards, as well as specific guidance in adjudicating asbestos-related claims. M21-1, Part IV.ii.1.H.32, ii.1.H.29 and ii.2.C.9 (January 23, 2013). However, there is no VA regulation that allows service connection on a presumptive basis for disorders resulting from exposure to asbestos or other environmental chemicals. 38 C.F.R. §§ 3.307, 3.309 (2012). Rather, service connection based on asbestos or other chemical exposure may be established only if a current disability is shown by the evidence to be related to asbestos exposure during service. Based on a review of the pertinent evidence, the Board finds that service connection should be granted. The Veteran's personnel records and service separation form indicate that he was engaged in a specialty that would have likely exposed him to asbestos and other toxic chemicals. For example, a performance evaluation from August 1982 reflects that he spent numerous hours on the fabrication and installation of air conditioning and exhaust systems in various buildings. An evaluation in August 1981 noted his work in the metal processing shop. The Board takes notice of the fact that fabrication and installation of metal parts in various facilities generally involves respiratory hazards, and that is not unusual for personnel to wear required breathing protection while engaged in such activities. Therefore, the Veteran's statements regarding exposure to asbestos and other airborne chemicals are consistent with the facts, places, and circumstances of his service, and exposure is conceded here. Moreover, the competent evidence indicates that the Veteran's bronchiectasis is at least as likely as not attributable to his active duty service to at least some degree. Significantly, the Board places great probative value on an opinion by a private physician in May 2012, who stated that it was more likely than not that the Veteran's respiratory disorder is related to his active duty service. In providing that opinion, the private physician stated that he had treated the Veteran since October 2011, and that he had a thorough understanding of the Veteran's medical history. Moreover, the physician stated that it was based on his personal experience, and knowledge of medical literature, that welding and soldering fumes can cause bronchitis and COPD. Although it is unclear whether the physician specifically reviewed the claims file, there is no reason to find that the Veteran misrepresented the nature of his chemical exposure when examined. The Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wilson v. Derwinski, 2 Vet. App. 614 (1992). In fact, as was shown in statements such as the one in August 2009, he has openly acknowledged participating in post-service occupations where chemical exposure was also likely. Importantly, there are no opinions in the record that rebut the private physician's conclusions. The record also contains other evidence indicating a relationship between chemical inhalation and subsequent respiratory disorders. For example, the Veteran has submitted an article which relates, in a general sense, how exposure to certain chemicals increases the risk of respiratory disorders. Moreover, private treatment notes in January and February 2008 both note the Veteran's history of chemical exposure. While none of that evidence is specific enough to warrant entitlement to service connection, that evidence supports the conclusions of the physician who provided the May 2012 opinion. Moreover, even though the Veteran was likely exposed to chemicals after active duty, the record does not suggest that the amount of exposure was so large as to render his in-service exposure insignificant. Also, while the Veteran has a moderate history of smoking, none of the treating physicians mentioned that as a potential factor in his current disorder. Therefore, based on the entirety of the evidence, the Board determines that it is at least as likely as not that the Veteran's respiratory disability is at least in part attributable to his in-service chemical exposure. Accordingly, service connection is warranted for a respiratory disability, and the appeal is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a respiratory disability, diagnosed as bronchiectasis and COPD, is granted. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs