Citation Nr: 1325291 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-48 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for respiratory/pulmonary disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active service from April 1972 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the claim on appeal. The Veteran had a hearing before the undersigned Veterans Law Judge in October 2012. A transcript of that proceeding has been associated with the claims file. The record reflects that after issuance of the last Supplemental Statement of the Case (SSOC) the Veteran submitted additional relevant evidence to the Board in November 2012. No subsequent SSOC was issued, but this is not necessary because the evidence was accompanied by a waiver of initial review by the agency of original jurisdiction in accordance with 38 C.F.R. § 20.1304 (2012). The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran has respiratory/pulmonary disability as a result of his military service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, his respiratory/pulmonary disability is a result of his military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) In light of the fully favorable decision herein as to the issue of entitlement to service connection for respiratory problems, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. II. Service Connection Claim A. Law and Regulations Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110 , 1131 (West 2002 & Supp. 2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) . To establish a right to compensation for a present disability on a direct basis, 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). B. Analysis In various statements to VA and at his October 2012 Board hearing, the Veteran has asserted that he has current respiratory problems as a result of his exposure to chemicals while on active duty as a cook. Specifically, the Veteran has claimed that as a cook, he had to scrub the floors in the mess hall at least twice a week with muriatic acid. He also recalled being exposed to carbon monoxide while cooking around gasoline stoves while out in the field. Additionally, he remarked that he had to maintain fuel equipment with a graphite paste. He has also submitted statements from his spouse, a cousin, and an aunt which reflect that he did not have respiratory problems prior to entering active duty. The Veteran's service treatment records and personnel records do not indicate any complaints, treatment, or diagnoses of or relating to a respiratory disorder during service. After service, the evidence of record indicates treatment for bronchitis and other respiratory problems from approximately 1985. He was hospitalized with pneumonia in December 2000, and a chest CT scan performed at that time revealed severe chronic obstructive lung disease. In January 2001, the Veteran was referred to a pulmonologist who recorded that the Veteran had smoked for 30 years at a rate of approximately one pack per day. It was further noted that the Veteran previously worked with aluminum oxide as a gunsmith for 12 years, and he had also worked as an asbestos abater. The examiner gave diagnoses of history of hemoptysis in a cigarette smoker, chronic obstructive pulmonary disease with emphysema and asthma, and recent pneumonia. A subsequent bronchoscopy performed in February 2001 showed chronic bronchitis. In support of his claim, the Veteran submitted a June 2010 letter from his treating physician. The psychologist stated that the Veteran was exposed to hazardous chemicals in the form of carbon monoxide, graphite, muriatic acid, and grease fumes while on active duty. He opined that the Veteran's lung condition could have been caused or aggravated by his military service. Subsequently, in November 2012, the Veteran's treating physician opined that it is as likely as not that the Veteran's condition is a result of exposure to chemicals he was exposed to while on active duty. No rationale for the conclusion was provided. In April 2013, the Veteran's claims file was submitted to a VA physician for an etiology opinion regarding the Veteran's respiratory problems. The physician reviewed the Veteran's history of being exposed to muriatic acid, grease vapor, gasoline stoves, and graphite paste while on active duty. Further, the examiner reviewed the Veteran's post-service treatment and 30-40 pack-year smoking history. The VA physician noted that chronic exposure to muriatic acid has been reported to cause chronic bronchitis and recurrent bouts of bronchial infection, and acrolein was a respiratory irritant found in vaporized cooking oils. He also indicated that graphite paste, when aerosolized, was a minor respiratory irritant. The physician stated that the Veteran's cigarette use likely contributed to his respiratory symptoms of chronic bronchitis, acute bronchitis, and other changes; nevertheless, the chemicals to which the Veteran was exposed while on active duty were reported to cause the symptomatology and respiratory difficulties the Veteran experienced. As such, the VA physician opined that the Veteran's "current pulmonary disorders are at least as likely as not to have resulted from his occupational exposures during his Army enlistment." The physician additionally included medical literature that supported his opinion. Thus, a clinical professional has specifically attributed some measure of the Veteran's currently diagnosed pulmonary disorders to his military service. The Board finds the April 2013 VA opinion of significant probative value. While the Board remains concerned that medical records reflect that the Veteran has a 30 to 40 year history of smoking and has previously worked as an asbestos abater, the VA physician clearly considered this post-service history when rendering his opinion. In that regard, he indicated that the Veteran did not appear to manifest pulmonary effects of asbestos exposure, and he also acknowledged that the Veteran's cigarette use likely contributed to his respiratory symptoms. Nevertheless, he concluded that the chemicals that the Veteran was exposed to while on active duty were at least as likely as not the cause of the Veteran's current pulmonary disorders. There is no medical evidence of record to rebut the conclusions of the VA physician in this regard. Thus, the Board concludes the findings of the VA physician, at the very least, place the evidence in equipoise as to whether the Veteran's currently diagnosed respiratory disorders are related to military service. As such, the Veteran is entitled to the benefit of the doubt and service connection may be granted. In short, in light of the April 2013 letter of the VA physician that has attributed the Veteran's respiratory/pulmonary disability to his military service, the Board concludes that service connection is warranted. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for respiratory/pulmonary disability is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs