Citation Nr: 1751578 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 10-34 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a lung disorder, to include as due to exposure to asbestos and other environmental hazards. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Carol J. Ponton, Attorney-at-Law ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from December 1967 to June 1974 and from March 1976 to March 1980. He had additional service in the Oklahoma Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This appeal was remanded by the Board in March 2014 and September 2016. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The weight of the probative medical evidence supports a finding that the Veteran's current COPD is etiologically related to his exposure to asbestos and other environmental hazards during service. CONCLUSION OF LAW The criteria for service connection for COPD have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Given the favorable outcome of this decision, no prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, neither chronic obstructive pulmonary disease (COPD) nor restrictive lung disease are "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In the case of conflicting medical opinions, the Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). Other factors affecting the probative value of a medical opinion include thoroughness and degree of detail, and a well-reasoned rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Bloom v. West, 12 Vet. App. 185, 187 (1999). The credibility and weight to be attached to these opinions is within the province of the Board. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection Claim for a Lung Condition - Analysis The Veteran contends that his current lung conditions are related to exposure to asbestos and environmental hazards during service. Specifically, he contends that his respiratory problems began during service and have gotten progressively worse since service. As an initial matter, the Board finds that the Veteran has currently diagnosed lung conditions, including COPD, restrictive lung disease, and bronchiectasis. See April 2014 VA examination report and April 2009 private chest CT report. Next, the Board finds that the Veteran was exposed to asbestos and other environmental hazards during service. He stated that he was exposed to asbestos, beryllium dust, fungicide, aviation fuel and exhaust, and fire extinguisher chemicals during service. His military occupational specialty was missile mechanic. He stated that he worked for several years in an aircraft hangar with aircraft always running and emitting fumes just outside the door of the hanger. He stated that the fumes were inescapable throughout the base. He also stated that the doors to the hander were coated with asbestos that continually flaked off and he had to sweep up the asbestos daily. He also reported that a fire extinguisher discharged directly in his face during service, an incident that is reflected in his service treatment records. The Board finds that the Veteran's reported environmental and asbestos exposures are credible and consistent with the details of his service. The Veteran was afforded a VA examination in April 2014. The VA examiner, a primary care physician, opined that the Veteran's lung disorder was less likely than not incurred in or caused by service. The VA examiner explained that the Veteran's most recent CT and pulmonary function tests (PFTs) were not consistent with that of asbestos-related lung disease. He had current diagnoses of COPD and mild restrictive lung disease, and the examiner noted that the most common cause of COPD is cigarette smoking, of which the Veteran has a history. The examiner stated that the Veteran has some mild restrictive lung disease which could be consistent with asbestos exposure, but the examiner opined that his serial CT scans did not show fibrosis or plaques, making it less likely to be related to asbestos exposure. Finally, the examiner stated that the Veteran's service treatment records do not indicate a history of symptoms, evaluation, or treatment for a lung condition, thereby making it less likely than not that his lung condition began on active duty. For these reasons, the examiner concluded that it is less likely than not that the Veteran's current lung conditions are due to active service, to include asbestos exposure. The VA examiner's opinion is probative as it was based on a thorough examination, included a detailed description of the Veteran's exposure to asbestos during service, and provided a detailed rationale to support the opinion. The April 2014 VA examiner provided an addendum opinion in December 2016. The examiner opined that it is less likely than not that the Veteran's exposure to jet fuel and exhaust, missile fuel, diesel fuel exhaust, fire extinguisher chemicals, asbestos, and beryllium during service caused his diagnosed bronchiectasis. The examiner explained that induction of bronchiectasis requires both an infectious insult and impaired drainage, airway obstruction, or a defect in host defense, causing damage in the airways. The examiner listed the etiologies that can induce or contribute to the pathophysiologic process that result in bronchiectasis, and stated that the Veteran does not have any of these etiologies on an ongoing or recurrent basis prior to 2009 or since that time. The examiner noted that the Veteran's service treatment records do not indicate that he had an infectious insult during service and the bronchiectasis was not noted until 2009, almost three decades after his discharge from service. The VA examiner opined that the April 2009 diagnosis of bronchiectasis was likely not a clinical diagnosis, but instead was used as a descriptive term for an acute lung infection in 2009 that later resolved and did not recur, as subsequent CT scans showed improvement and resolution of the signs of the acute infection. The examiner stated further that scans before and after 2009 did not show signs of infection, which is inconsistent with bronchiectasis as it is a chronic and very symptomatic lung condition. For these reasons, the examiner concluded that it is less likely than not that the bronchiectasis noted on the April 2009 CT report is related to active service. In October 2017, the Veteran submitted a private medical opinion from Dr. V.C., an occupational/environmental physician. Dr. V.C.'s curriculum vitae indicates that she is an expert on the medical effects of military environmental and toxic exposures. Dr. V.C. described the Veteran's numerous exposures to asbestos and other chemicals during service. She noted that the Veteran was treated during service for chemical burns to both eyes, numerous sinus infections, and "upper respiratory infections. She also noted that the Veteran's enlistment examination noted that he had asthma as a child and had to quit a job prior to enlistment due to sensitivity to chemicals being sprayed and fumes in the work area. Dr. V.C. opined that restrictive PFTs, like the Veteran's, are indicative of interstitial lung disease regardless of chest x-ray and CT scan results. She stated that chest x-rays cannot definitive detect interstitial fibrosis. Instead, high resolution CT scanning is the most useful imaging technique for determining interstitial lung disease. Dr. V.C. stated that the Veteran's numerous CT scans were not high resolution CT scans. She further cited studies that she stated indicated that asbestosis causes a restrictive defect and can also cause obstructive disease especially after a long latent period. Dr. V.C. further noted that while smoking causes approximately 80 percent of all cases of COPD, 15 percent of the cases are attributable to workplace exposures. She stated that coal, cadmium, silica and biomass are all well-established occupational causes of COPD, and more routine workplace exposures such as to vapors, gases, dusts, and fumes are also supported in evidence from numerous studies. Finally, Dr. V.C. stated that a study indicated that for individuals who had quit smoking between 10 and 19 years prior to the study, the risk of developing COPD or other respiratory symptoms was not significant. Therefore, Dr. V.C. opined that given that the Veteran had quit smoking almost 35 years prior to the diagnosis of COPD, three times longer than the subjects in the study, it is highly unlikely that his COPD is related to his remote, short history of smoking. For these reasons, Dr. V.C. concluded that it is at least as likely as not that the Veteran's COPD was caused by multiple exposures, including asbestos and other mineral dusts, vapors, gases, and fumes during service. Dr. V.C.'s opinion is highly probative as it included a detailed description of the Veteran's exposure to asbestos and other environmental hazards during service, gave a detailed history of the Veteran's treatment for respiratory conditions, and provided a detailed rationale to support the opinion, with citations to numerous relevant studies and scholarly articles. The probative value of this opinion is further increased by Dr. V.C.'s particular expertise in the field of military environmental and toxic exposures. See Sklar v. Brown, 5 Vet. App. 140, 146 (1993) (holding that professional credentials and experience of opinion providers are properly considered in assigning probative value). After a review of all the evidence of record, both lay and medical, the Board finds that the weight of the evidence supports a finding that the Veteran's current COPD is etiologically related to service. While the April 2014 and December 2016 VA medical opinions were adequate and probative, their probative value is outweighed by that of the October 2017 private medical opinion from an expert as to the medical effects of military environmental and toxic exposures. As explained above, the Veteran's current COPD meets all three elements for service connection, as there was an in-service injury, there is a current diagnosis of COPD, and there is a nexus between the current diagnosis and in-service injury. The Board finds that the weight of the probative medical evidence is in favor of a finding that the Veteran's current COPD is etiologically related to service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection for COPD have been met. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. ORDER Service connection for COPD is granted. REMAND Herein, the Board grants service connection for COPD. The RO's implementation of this new award of service connection may impact the remaining issue on appeal, entitlement to a TDIU. For this reason, a remand is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all updated VA treatment records of the Veteran and associate them with the record. 2. Implement the Board's award of service connection for COPD. 3. Thereafter, readjudicate the TDIU claim remaining on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs