Citation Nr: 1806038 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-20 041A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and asbestosis from asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Negron, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from May 1964 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Montgomery, Alabama. The Veteran was provided a hearing in July 2017 with the undersigned Judge, and a transcript of the hearing is of record. FINDING OF FACT The probative evidence of record is at least in relative equipoise that the Veteran's respiratory condition, to include asbestosis, is related to or is otherwise attributable to his active service. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, to include asbestosis, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (2012); 38 C.F.R §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service Connection 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 service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The probative value attributed to a medical opinion issued by either VA or private treatment providers to support service connection depends on factors such as thoroughness, degree of detail, and whether there was a complete review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board must consider whether the examining medical provider had a sufficiently clear and well-reasoned rationale, and a basis in supporting objective clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejects medical opinions that do not indicate whether the physicians actually examined the veteran, do not provide the extent of the examination, and do not provide supporting clinical data). The Court has held that a bare conclusion, even when reached by a health care professional, is not probative without an accurate factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.). See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 9 (f). Factual Analysis The Veteran contends that his current respiratory conditions are related to his active service, to include asbestos exposure from working as a boiler technician. As an initial matter, the Board notes that the Veteran's military personnel records and his DD-214 forms confirm he worked as a boiler technician in the U.S. Navy, and this position is one of the professions the VA manual recognizes to have involved exposure to asbestos. Further, the Veteran has been diagnosed with COPD, pleural disease, and asbestosis. As such, the Board finds the current disability element and in-service event element are established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Thus, the issue turns upon whether there is evidence of a nexus between the claimed in-service disease or injury and the present disability. Id. In July 2011, the Veteran provided a private medical examination report. The physician, after review of a March 2011 chest x-ray, diagnosed the Veteran with bilateral interstitial fibrosis consistent with asbestosis and chest wall pleural plaques. The physician further explained that the findings were consistent with asbestos related pleural disease. In November 2011, the Veteran was provided a VA examination. The examiner diagnosed the Veteran with COPD and opined that the Veteran's condition was less likely than not related to his active service. The examiner found there was no evidence of asbestosis or asbestos related pleural disease. The examiner then rationalized that the Veteran's COPD was not related to service and was related to tobacco abuse, as the Veteran was a smoker for 40 years. The examiner further stated that the Veteran had no diagnosis of asbestos-related lung disease, despite the claim in the July 2011 medical report reviewing the March 2011 chest x-ray from the private physician. The Veteran provided another private opinion in July 2012. The physician stated the Veteran had COPD, pleural disease, and asbestosis. The physician then explained that asbestosis cannot develop from smoking and can only come from asbestos exposure. He further explained that the Veteran's COPD was separate from asbestosis, and it was his opinion that the Veteran's position as a boiler technician while in service was more than likely the source of his exposure to asbestos. The Veteran was provided another VA examination in April 2012. The examiner opined that the Veteran does not have a diagnosis of asbestosis. The examiner stated the Veteran has COPD; however, his STRs were silent for respiratory issues, and the Veteran had a longstanding history of tobacco use. The examiner further rationalized that there is a strong cause-effect relationship between smoking and COPD and an uncertain cause-effect relationship between asbestos exposure and COPD. The examiner further stated that outside of the chest x-ray taken in March 2011, there was no other evidence of asbestosis, and the July 2011 report is inconsistent with chest x-rays from the November 2011 examination. The examiner then stated that use of the March 2011 chest x-ray was to be considered improper and unjustified. Lastly, the examiner stated the evidence and literature points to the Veteran's smoking, not asbestos exposure, as the cause of his COPD. The Board also notes that at the time of his initial claim, the Veteran provided private medical records from April 2007 through April 2010 which showed treatment and diagnoses for pleural effusion and COPD. Upon review of the foregoing evidence, the Board concludes that the evidence of record is at least in relative equipoise that the Veteran's respiratory condition is related to his active service. The Board finds the July 2011 medical report and the July 2012 opinion from the private physicians to be of significant probative value in determining that the Veteran's respiratory condition is related to his active service. The Board notes that the probative value of medical opinion evidence is based on the medical experts' personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the physicians showed they had knowledge of the Veteran's background and based their decision on their medical expertise and review of the Veteran's history. Further, the Board notes that the private physicians were pulmonologists. Although the VA examiner opined that the Veteran did not have an asbestos related respiratory condition and the March 2011 x-ray finding was inconsistent and unjustified, the Board notes that the Veteran provided medical opinions from two separate private physicians that both opined the Veteran suffered from asbestos exposure related conditions. Additionally, in his July 2017 hearing, the Veteran testified that he was not a longstanding smoker. The Veteran stated that the examiner must have misheard him and he never stated he smoked for 40 years, but actually stated he smoked for maybe 4 to 5 years while in his early twenties only. The Veteran further testified that once released from service, he did not participate in any activity that exposed him to asbestos. He stated that during his time in the U.S. Navy, he worked in the boiler room wrapping all the pipes. He stated the wraps contained asbestos, and it often got all over him. He stated that he began experiencing symptoms, such as coughing and difficulty breathing, a few years after service. The Board finds that the Veteran's competent lay statements are consistent with the evidence of record. Thus, the Board concludes that the evidence is at least in equipoise for the claim, and the benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Accordingly, service connection is warranted for a respiratory disorder. Therefore, the appeal must be granted. ORDER Entitlement to service connection for a respiratory disorder is granted. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs