Citation Nr: 1802327	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  16-19 242A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to service connection for a pulmonary disability, to include asbestosis.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M.D., Associate Counsel







INTRODUCTION

The Veteran served on active duty from June 1960 to April 1964. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in New Orleans, Louisiana. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The preponderance of evidence fails to show a diagnosis of asbestosis with a link to the Veteran's asbestos exposure during military service.  Rather, the Veteran's current lung disease, diagnosed as COPD, has been linked to his history of smoking.  


CONCLUSION OF LAW

The criteria for service connection for a pulmonary disability, to include asbestosis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

VA has a duty to notify a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017). VA satisfied the duty to notify in this appeal and neither the Veteran nor his representative have asserted any error. 

VA also has a duty to assist a claimant in the development of a claim. That duty includes assisting in obtaining service treatment records and pertinent post-service treatment records and providing an examination or obtaining an opinion when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

In April 2015 and January 2016, the Veteran was provided a VA examination and a VA addendum opinion regarding his claim of service connection asbestosis; as discussed in greater detail below, the Board finds these examinations to be adequate upon which to adjudicate the merits of this appeal. 

Given the above, the Board finds that no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 

II. Service Connection 

The Veteran claims entitlement to service connection for asbestosis. For the following reasons, the Board finds that service connection is not established.

Service connection means that a Veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a).

With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. 

The Veteran contends that he has asbestosis that developed due to asbestos exposure in service. He served onboard the submarine USS Trigger, SS-564. The Veteran's DD-Form 214 reveals that the Veteran's military occupation specialty (MOS) was an electrician which the VA Manual reflects has a probable likelihood for asbestos exposure. 

The Veteran was afforded a VA examination in April 2015 for his respiratory condition. The examiner reviewed the Veteran's VA claims file and medical records, and conducted pulmonary function testing. The Veteran was diagnosed with chronic obstructive pulmonary disease (COPD). When describing the Veteran's history of his respiratory condition, the examiner noted that the Veteran started smoking at the age of 18 and quit in July 2014.  

The examiner opined that the Veteran's respiratory impairment was due to COPD, which is caused by smoking, not asbestos exposure. The examiner noted that there was no radiographic evidence of asbestos disease. The examiner stated that if asbestosis were present, one would expect to see pulmonary fibrosis, which would decrease the total lung capacity. Testing, however, revealed the Veteran's total lung capacity is normal at 97% of predicted. 

The examiner expressed that the Veteran has clinical, radiographic, and spirometric evidence to support the diagnosis of COPD from cigarette smoking. The examiner stated that exposure to asbestos does not cause these findings. The examiner noted that the Veteran does not have any evidence of a respiratory impairment that could be attributed to exposure to asbestos in service. 

The Veteran submitted a July 2015 medical opinion from Dr. G.C. The physician expressed that the Veteran has been under her care since 2008. The physician stated that the Veteran was exposed to asbestos during military service and that his pulmonary function is declining. Dr. G. C. opined that the Veteran's condition is most likely due to the history of asbestos exposure and history of smoking.    

The Veteran submitted an article that stated that, "the connection between past service in the Navy and present-day asbestos diseases is indisputable."  The article noted that "products like cables, gaskets, and valves had asbestos. It covered the pipes, pumps, motors, condensers, and compressors that helped run a ship."  It added that, "as ships aged, asbestos became brittle. Any disturbance, especially in the close quarters of ships and submarines, would make the fibers airborne." 

VAMC Alexandria records showed that the Veteran had a computed tomography (CT) of the chest in July 2003, which showed aortic pulmonary window and retrocaval nodes of less than 1.5 centimeters, and localized pleural thickening.

VAMC Shreveport records showed that in August 2003, the Veteran was referred for a pulmonary consult. The physician noted a history of asbestosis. The physician also noted that the Veteran was referred for the consult because the Veteran's CT scan showed a pleural plaque and two enlarged lymph nodes.

The physician noted that the Veteran's CT scan was reviewed and that the Veteran has the adequate latency time for asbestosis. However, the physician noted that due to the poor quality of the Veteran's chest x-ray, it was difficult to establish parenchymal involvement. The physician noted that the CT scan does show bilateral areas of pleural thickening without calcification.  

The Veteran was afforded an addendum VA medical opinion in January 2016 from the same physician as the April 2015 VA examination. The examiner reviewed the Veteran's electronic folder in VBMS and available medical records. The examiner stated that he obtained the letter from Dr. G.C. The examiner noted a CT scan of the thorax in May 2004 that showed resolution of the lymphadenopathy and clear lung fields with a normal scan interpretation. The examiner opined that in light of the additional information provided, he cannot attribute a diagnosis of asbestosis based upon the subjective opinion of Dr. G.C., the CT findings, the pulmonary consultation about the abnormal CT scan, or the normal follow up CT scan. The examiner expressed that resolved adenopathy and a 7.1 millimeter plaque would not cause respiratory symptoms or impairments. In addition, the examiner reported that asbestos exposure does not cause COPD but that cigarette smoking causes COPD.  

The Veteran's representative submitted a link to an article that stated that "people who have asbestosis, a lung disease caused by asbestos may develop COPD as a complication." It also reported that "COPD can be caused by the inhalation of foreign fumes or substances." 

Based on a careful review of all of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for asbestosis. First, the evidence does not show that the Veteran had pulmonary symptoms while in the Navy.  Rather, the first evidence of a pulmonary disability was not until many years after discharge from the Navy.  The Board finds that while the Veteran has a diagnosed lung condition, COPD, it is due to his long history of smoking and does not represent a disease caused by exposure to asbestos. 

The Board acknowledges the opinion by Dr. G.C. However, it is of limited probative value because it did not provide rationale or explanation of an
asbestos-related lung disease.  Moreover, the examiner from the April 2015 and January 2016 VA examinations provided a definitive opinion. Those opinions were based on a review of the Veteran's claims file and accompanied by a detailed rationale based on an accurate history and medical knowledge. The examiner considered and acknowledged the Veteran's lay statements and medical evidence of record in reaching his conclusions. In short, the examiner provided a clear, medically-based conclusion for finding that the Veteran did not have asbestos-related disease and in finding that the current COPD was due to the Veteran's history of tobacco use.  The Board thus finds that the April 2015 and January 2016 VA opinions to be highly probative. 

The treatise articles, while informative, do not show that this Veteran has asbestos-related disease.  As such, they are not afforded probative weight.  

The Board notes that the Veteran is competent to report his symptoms. That said, it is the province of trained medical professionals to ascertain that such symptoms are indicative of asbestos exposure. The Veteran has not been shown to possess the training and credentials needed to render a competent diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C § 5107(b).


ORDER

Entitlement to service connection for a pulmonary disability, to include asbestosis is denied. 




____________________________________________
M. Tenner
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs