Citation Nr: 18141739 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 09-13 388 DATE: October 11, 2018 ORDER Entitlement to service connection for asbestos-related pleural disease is granted. REMANDED Entitlement to service connection for a left lung tumor, as secondary to asbestosis or ionizing radiation exposure is remanded. FINDING OF FACT The probative medical evidence of record is at least in equipoise that the Veteran has asbestos-related pleural disease. CONCLUSION OF LAW The criteria for service connection for asbestos-related pleural disease have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 1154, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Navy from February 1943 to January 1946 and from January 1951 to April 1952. The Veteran testified at a videoconference hearing in February 2011 before a member of the Board of Veterans’ Appeals; a transcript of the hearing has been associated with the claims file. In April 2011, the Board remanded the appeal to obtain a new VA examination; an exam was conducted in February 2013. The Board remanded the appeal once more in May 2014 for a new opinion; an examination was conducted in November 2014 and an addendum opinion was obtained in September 2016. Unfortunately, the Veteran died in May 2017. The appellant is the Veteran’s daughter and has been accepted as the substitute in his appeal. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts demonstrate that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting service, was aggravated therein. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2018). Establishing service connection generally requires medical or, in certain circumstances, lay 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for asbestosis. The appellant contends that the Veteran had asbestosis due to exposure to asbestos while working on several ships during service. Service treatment records are negative for any treatment or diagnosis for asbestosis or any other asbestos related condition. There were no respiratory defects noted on his separation examination. His MOS during service was signalman, which is considered to have a low chance of exposure to asbestos. However, during the February 2011 hearing, the Veteran testified that asbestos was sprayed on the ship while he was on it. He was also assigned extra duties like chipping and painting decks and bulkheads with lead paint. He also reported that he worked as a brick layer for several years after service and was exposed to asbestos. VA treatment records show various pulmonary function tests conducted over several years, which were considered normal. The Veteran was diagnosed with obstructive sleep apnea in approximately 1995 and was given a continuous positive airway pressure machine (CPAP) as treatment. Later, he was upgraded to a BPAP due to increased symptoms. A May 2011 CT was normal; there was no evidence of any acute cardiopulmonary disease and normal pulmonary functioning tests. There was also some atelectasis or scarring noted, possibly due to the Veteran’s history of heavy smoking. A March 2016 CT of the chest showed lingular atelectasis or scar, a small granuloma in the right, lower lobe that was unchanged since May 2013, as well as scattered pleural plaques bilaterally. A May 1998 chest x-ray conducted by a private physician failed to show any active lung disease. A March 2007 computed tomography (CT) report showed calcified pleural plaque which was an indication of asbestos exposure; the lung fields were considered “unchanged” but a borderline prominent lymph node and scarring were seen. Pulmonary function tests including flow ratio, lung volumes, and diffusion capacity showed only reduced ERV and FRC compatible with obesity. The physician provided a final diagnosis of asbestos-related pleural disease. The Veteran was afforded a VA examination in February 2013 and the examiner noted that he did not have a diagnosis of any respiratory illness, indicating that after review of the claims file, there was nothing to substantiate a respiratory disease. The Veteran underwent various chest x-rays and CTs which were considered normal; he also underwent various pulmonary function tests throughout the appeal period, which were also normal. He was diagnosed with obstructive sleep apnea; however, the examiner noted there was no other respiratory diagnosis. The examiner also reviewed a chest x-ray conducted in April 2012 that was considered normal and a CT from December 2012, which showed platelike atelectasis at the base and a small nodule in the right lung base that remained unchanged since 2008. The examiner noted that there was no basis for the diagnosis of a tumor in the lungs and the Veteran had no other respiratory disease which could be related to asbestos exposure. During the November 2014 examination for respiratory conditions, the Veteran reported breathing problems for many years. Computed tomography (CT) of his chest was conducted as part of the exam and showed minimal calcified pleural plaque on the left, emphysematous changes with scarring at the base, and a small nodule on the right, lower lobe of the lung. The examiner noted that he did not require further followup. The examiner did not provide or note any previous diagnosis of a respiratory condition. An addendum opinion was obtained in September 2016 to reconcile the results of the 2007 private CT chest scan and the 2012 VA CT scan. The opinion noted that the Veteran had completely normal pulmonary function testing. The examiner was unable to comment on the accuracy of the interpretation of the 2007 scan because he did not have access to the films; however, he was able to review the results of a March 2016 scan and noted that the presence of pleural plaques was extremely subtle and the Veteran had a slight amount of scarring in the right midlung field. Ultimately, the examiner opined: “Given the patient has minimal radiographic findings, no pulmonary function abnormalities, and an unclear distribution of exposure between his military in civilian life, I think it is less likely than not that this patient suffers from a service-connected respiratory problem.” Based on the foregoing, the Board finds that service connection for asbestos-related pleural disease is warranted. As noted above service connection requires a current diagnosis, in-service event, injury or disease, and a nexus between the diagnosis and service. Here, it has been conceded that the Veteran was exposed to asbestos both during and after service. Therefore, the case turns on whether the Veteran has a current disability related to that in-service exposure. The Board finds both the February 2013 and November 2014 VA examinations inadequate as neither provided an explanation as to the lack of diagnosis or attempted to address previous findings showing pleural plaques and scarring. The September 2016 opinion indicated that although the Veteran had pleural plaques and scarring in the right lung, he did not have a respiratory condition. However, the March 2007 private findings indicated the calcified pleural plaques were asbestos related. Both opinions were based on a review of CT scans and pulmonary function testing. There is no reason to question the competency of either physician. Both medical opinions/findings are equally credible; thus, both are assigned equal probative weight. Upon review of the aforementioned competing evidence, the Board finds the positive and negative evidence with respect to the Veteran’s lung disability is in relative equipoise. In other words, the Board resolves all reasonable doubt in the Veteran’s favor and finds service connection for his asbestos-related pleural disease is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left lung tumor, as secondary to asbestos or ionizing radiation exposure is remanded. The appellant alleges that the Veteran had a left lung tumor related to exposure to asbestos during service. However, treatment records note the nodule was located in the right lobe and there was no diagnosis of cancer. Moreover, the Veteran underwent several VA respiratory examinations; however, each examiner has failed to address the etiology of his lung nodule. Therefore, on remand, a new opinion discussing the current diagnosis and etiology should be obtained. The matters are REMANDED for the following action: 1. Obtain an addendum opinion as to the etiology of the Veteran’s lung nodule. The examiner is asked to review the entire claims file, including this decision/remand. The examiner is asked to determine the correct diagnosis of any lung tumor or nodule. The examiner must opine as to whether it is at least as likely as not that the lung nodule was related to his military service, to include likely exposure to asbestos or ionizing radiation. A full and complete rationale for all opinions expressed is required. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel