Citation Nr: 1756746 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 09-10 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for pulmonary asbestosis. 2. Entitlement to service connection for a respiratory disorder other than pulmonary asbestosis to include as due to asbestos and/or herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from October 1965 to October 1969, including combat service and his decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In January 2013, the Board remanded the above claims for additional development. FINDINGS OF FACT 1. Pulmonary asbestosis had its onset in service. 2. The preponderance of the evidence of record shows that a respiratory disorder other than pulmonary asbestosis is not related to service. CONCLUSIONS OF LAW 1. Pulmonary asbestosis was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for service connection for a respiratory disorder other than pulmonary asbestosis have not been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for respiratory disorders to include pulmonary asbestosis, chronic bronchitis, and COPD to include as due to asbestos and herbicide exposure. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Regarding asbestos exposure, he believes he was exposed to asbestos while serving on the U.S.S. Lynde McCormick (DDG-8) in the course of his duties as a machinist mate because the ship was old and because he had direct contact with asbestos while repairing pipes and other machinery. As to herbicide exposure, the Veteran claims he was exposed to Agent Orange while serving on the U.S.S. Lynde McCormick while it operated on the Cua Ham Loung River and Mekong River in April 1966 while in the Republic of Vietnam. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disabilities will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). In order to establish service connection for the claimed disabilities there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Vietnam Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As to disease or injury caused by the alleged asbestos exposure, there are no specific statutory or regulatory guidance with regard to these claims but only special guidelines for developing them. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29; Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board is charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). a. Pulmonary Asbestosis. Initially, the Board finds that the Veteran's DD Form 214 and service personnel records verifies his service on the U.S.S. Lynde McCormick (DDG-8) from March 1966 to September 1969 as well as his duty assignment as marine mechanic. Therefore, the Board will concede his in-service asbestos exposure. Moreover, in May 2016 the VA examiner both diagnosed the Veteran with pulmonary asbestosis and opined that it was due to his military service. This medical opinion is not contradicted by any other medical evidence of record. Therefore, the Board finds that the most probative evidence of record shows that the Veteran has pulmonary asbestosis and it is due to a documented in-service injury (i.e., asbestos exposure). See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). Accordingly, the Board finds that the criteria for service connection for pulmonary asbestosis have been met and service connection is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.303. b. All Other Respiratory Disorders As to a current diagnoses of the Veteran's other respiratory disorders, the post-service record shows him being diagnosed with bronchitis, COPD, and emphysema. See Knox Community Hospital treatment records and chest X-ray dated in June 2006; VA treatment records dated in March 2017; VA examinations dated in May 2016 and May 2017. Moreover, the Board finds that the Veteran is competent to report on the objective manifestations of these disorders, such as shortness of breath, because it comes to him via his own senses. See Davidson. However, as to the herbicide exposure presumptions under 38 C.F.R. § 3.309(e) and the presumptions under 38 C.F.R. § 3.309(a),the Board finds that neither presumption is applicable to the current claim despite the Veteran's service in the Republic of Vietnam because neither regulation lists the Veteran's remaining diagnosed respiratory disorders (i.e., bronchitis, COPD, and emphysema) as presumptive disease processes. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board finds that the preponderance of the evidence also shows that the Veteran does not meet the criteria for service connection for his other respiratory disorders. In this regard, the record shows the Veteran served on the U.S.S. Lynde McCormick (DDG-8) from March 1966 to September 1969 as a marine mechanic and his service treatment records documented complaints and treatment for tonsillitis and upper respiratory infections. However, his service treatment records, including the September 1969 separation examination, are otherwise negative for symptoms, treatment, and/or of a diagnosis of a chronic respiratory disorder. See 38 C.F.R. § 3.303(a). In fact, the September 1969 separation examiner opined that the Veteran's lung evaluation was normal and this medical opinion is not contradicted by any other medical evidence of record. Similarly, the record does not show that he had a continued problem with one of these other respiratory disorders in and since service. In fact, as reported above, service treatment records including the September 1969 separation examination are negative for complaints, diagnoses, or treatment for a respiratory disorder. Likewise the post-service records are negative for a history or a diagnosis of one of these other respiratory disorders until 2006 for bronchitis and COPD and 2017 for emphysema. See, e.g., Knox Community Hospital treatment records and chest X-ray dated in June 2006; VA treatment record dated in March 2017. Further, the record is negative for competent and credible medical evidence showing a relationship between the Veteran's other post-service respiratory disorders and service. See 38 C.F.R. § 3.303(d); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In fact, at the post-remand VA examination in May 2016 and the addendum to that examination in June 2016, which were held for the express purpose of ascertaining the origins or etiology of the Veteran's other respiratory disorders the examiner after a review of the record on appeal and an examination of the Veteran opined that his bronchitis and COPD were not due to his military service to include his in-service asbestos exposure. The examiner also specifically attributed all of the Veteran's current respiratory disorders other than pulmonary asbestosis to his long smoking history. These medical opinions are also not contradicted by any other medical evidence of record. As to the Veteran's lay claims, the Board finds the in-service medical records, including the separation examination, as well as the post-service medical records which do not document complaints, diagnoses, or treatment for these other respiratory disorders for until decades after service more credible than his claims. See Owens. The Board also finds that the Veteran is not competent to provide a nexus opinion as to these other respiratory disorders because he does not have the required medical expertise to provide answers to these complex medical questions. See Davidson. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a respiratory disorder other than pulmonary asbestosis and his claim is denied on a direct and presumptive basis. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. ORDER Service connection for pulmonary asbestosis is granted. Service connection for a respiratory disorder other than pulmonary asbestosis is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs