Citation Nr: 1753214	
Decision Date: 11/20/17    Archive Date: 12/01/17

DOCKET NO.  14-10 487	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to service connection for lung disability due to asbestos exposure.


REPRESENTATION

Appellant represented by:	AMVETS


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Roya Bahrami, Counsel


INTRODUCTION

The Veteran had active service from February 1962 to October 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which, in pertinent part, denied service connection for lung disease due to asbestos exposure and left ear hearing loss. The Oakland, California RO has current jurisdiction.

In July 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ), and a copy of the hearing transcript is of record.

In January 2017, the RO granted service connection for bilateral hearing loss and assigned a zero percent (noncompensable) evaluation effective November 4, 2016.  As the Veteran has not yet disagreed with the disability rating or effective date assigned, such issue is not currently on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection.)


FINDING OF FACT

The Veteran's currently diagnosed asbestos-related lung nodule and multiple bilateral calcified pleural plaques are at least as likely as not attributable to service.





CONCLUSION OF LAW

The criteria for service connection are met for lung disability, currently diagnosed as asbestos-related lung nodule and multiple bilateral calcified pleural plaques. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the appeal given the fully favorable nature of the Board's decision.

II.  Service Connection

The Veteran claims that he has a lung condition as a result of exposure to asbestos during his active duty in the Navy.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).

Establishing service connection generally requires evidence of:  (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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 relevant part, 38 U.S.C.A. 1154 (a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  A claimant need demonstrate only an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

At the outset, the Board notes that VA has conceded asbestos exposure. Thus, the issue before the Board is whether any currently diagnosed lung disorder is due to service, including the conceded asbestos exposure.

Turning to the pertinent evidence of record, an October 2008 computed tomography (CT) scan of the abdomen and pelvis revealed some areas of pleural plaque along both sides of the lower chest with a small calcification seen in one pleural plaque on the right side. The reviewing physician indicated that this could be due to some previous asbestos exposure.

An April 2009 CT scan showed a 6 to 7 millimeter (mm) nodule. The Veteran was advised to repeat scan in 3 to 4 months.

A February 2010 private treatment record noted a solitary pulmonary nodule, stable on recent image.

On May 2013 VA respiratory conditions examination, the examining nurse practitioner diagnosed interstitial lung disease and solitary lung nodule. Pulmonary function testing (PFT) revealed that the Veteran's FVC after bronchodilators was 104 percent predicted. The Veteran's DLCO was 107 percent predicted before bronchodilators. The examiner noted that, with the absence of further diagnostic studies, a definitive diagnosis of lung condition is difficult. However, given that the Veteran was likely exposed to asbestos for prolonged periods of time, it is at least as likely as not that the lung nodule noted on the Veteran's CT of chest is related to his service and exposure to asbestos. 

In a May 2013 addendum opinion, a VA physician stated that the nurse practitioner's rationale for his medical opinion is flawed. The Veteran was diagnosed with pulmonary nodule in 2009. There is no follow-up imaging provided, but a February 2010 note mentions solitary pulmonary nodule, stable on recent image. Asbestosis presents as diffuse interstitial disease shown by honeycombing on CT with pleural plaquing on x-ray as well. There is no mention of any of these classic findings on any imaging reports. PFT did not show interstitial lung disease (ILD); ILD would be shown by a decreased FVC which does not respond to bronchodilators. Additionally, with ILD, the DLCO would be reduced. This is not the case with this Veteran; it was normal. There is no evidence of asbestosis.

In a March 2014 letter, the Veteran's private physician stated that, based on the last chest x-ray dated September 2012, the Veteran has changes described as "multiple bilateral calcified pleural plaques," suggesting prior asbestos exposure.

Based on the foregoing, the Board finds that the evidence establishes that it is at least as likely as not that the Veteran's multiple bilateral calcified pleural plaques and lung nodule are related to service, specifically, to asbestos exposure.

The evidence of record demonstrates that the Veteran was diagnosed with a long nodule in 2009 and multiple bilateral calcified pleural plaques in 2012.Thus, the Veteran has a current disability. The Board acknowledges the May 2013 nurse practitioner's diagnosis of interstitial lung disease, however, the Board notes that the examiner later indicated that a definitive diagnosis of lung condition would be difficult without further diagnostic studies, and only provided an opinion pertaining to the diagnosed lung nodule. Additionally, the findings noted in the May 2013 physician's addendum opinion, as well as the March 2014 letter from the Veteran's private physician, do not indicate that the Veteran has a diagnosis of interstitial lung disease. Therefore, the current disability is limited to lung nodule and multiple bilateral calcified pleural plaques at this time.

With regard to nexus, the Board notes that the May 2013 VA examination performed by the nurse practitioner relates the diagnosed lung nodule to the Veteran's asbestos exposure in service. Additionally, the March 2014 letter from the Veteran's private physician relates the multiple bilateral calcified pleural plaques to asbestos exposure. Although the May 2013 addendum by the VA physician contained a negative etiology opinion, such opinion appears to be limited to interstitial lung disease, and not the other diagnoses of record. Thus, taken together, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's lung nodule and multiple bilateral calcified pleural plaques are related to asbestos exposure during service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for lung nodule and multiple bilateral calcified pleural plaques is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for lung nodule and multiple bilateral calcified pleural plaques is granted.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs