Citation Nr: 18142816 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-05 624 DATE: October 16, 2018 ORDER Entitlement to service connection for pulmonary fibrosis is granted. FINDING OF FACT Pulmonary fibrosis had its onset in service. CONCLUSION OF LAW Pulmonary fibrosis was incurred in active duty. 38 U.S.C. § 1110, (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1963 to June 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the claim folder. During the May 2018 Board hearing, the VLJ clarified the issue on appeal; clarified the concept of service connection claims; identified potential evidentiary defects which included evidence of a nexus between the Veteran’s respiratory disorder and service; clarified the type of evidence that would support the Veteran’s claim; enquired as to the existence of potential outstanding records; and held the record open for 90 days for the submission of additional evidence. Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. The Board acknowledges that the issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for an inferred heart condition as a result of exposure to herbicides has been perfected, but not yet certified to the Board. The Board’s review of the claims file reveals that the agency of original jurisdiction (AOJ) is still taking action on this issue. As such, the Board will not accept jurisdiction over it at this time. Service connection for a respiratory disorder The Veteran contends that he has a respiratory disorder that is related to his service, to include as due to asbestos exposure during his service aboard the USS Intrepid and USS Independence. See, e.g., a statement from the Veteran dated August 2011. Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The Board notes that there are no statutes specifically dealing with asbestos and service connection for asbestos-related diseases, and VA has not promulgated any specific regulations. VA has acknowledged a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. When considering VA compensation claims, rating boards have the responsibility to ascertain whether service records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. The Board notes that the Veteran has not claimed that his disability on appeal is the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). 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. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). With respect to the Veteran’s contention that his respiratory disability is due to in-service exposure to asbestos aboard the USS Intrepid and USS Independence, the Board finds such statements to be credible and consistent with the record. Notably, the Veteran’s service personnel records verify his service aboard the USS Intrepid from March 1966 through April 1967 and the USS Independence in June 1967. His personnel records further document his military occupational specialty (MOS) as aviation structural mechanic which is a duty consistent with exposure to asbestos. Based on the foregoing, the Board finds the Veteran’s contention regarding in-service exposure to asbestos is credible and consistent with the record. As will be discussed below, the Board finds that the most probative evidence of record demonstrates that the Veteran currently has a respiratory disability, specifically pulmonary fibrosis, that is due to his active duty. A probative medical opinion is of record concerning the issue of nexus for the Veteran’s respiratory disability in the form of a June 2018 private opinion by K.P., M.D. Specifically, Dr. K.P. reported that the Veteran has been under his care for many years and that the Veteran has pulmonary fibrosis. Dr. K.P. further noted the Veteran’s in-service exposure to asbestos. Based on review of the Veteran’s medical history, Dr. K.P. opined that the Veteran’s long term pulmonary fibrosis is at least as likely as not caused by the in-service asbestos exposure. His rationale was based on his finding that the Veteran has suffered for many years with shortness of breath, chronic fatigue/weakness, hacking cough, and chest discomfort. Moreover, his shortness of breath became progressively worse to the point where he was on oxygen therapy and the Veteran required a lung transplant in June 2012. In this case, the Board finds that the most probative evidence supports a finding that the Veteran currently has pulmonary fibrosis that had its onset during the Veteran’s service. In this regard, the Board finds the June 2018 private medical opinion of Dr. K.P. to be of great probative value as the opinion was based on a thorough consideration of the Veteran’s medical history. The Board acknowledges that a VA examiner provided a medical opinion in February 2013 which indicated that the Veteran’s pulmonary fibrosis is less likely than not incurred in or caused by service, to include exposure to asbestos. Her rationale was based on her finding that the Veteran’s pulmonary fibrosis is related to his long history of polymyositis. However, the VA examiner did not provide any opinion as to whether the Veteran’s polymyositis is incurred in or aggravated during the Veteran’s service, to include as due to exposure to asbestos. Therefore, even if the Board were to accept that the Veteran’s pulmonary fibrosis is related to polymyositis, the VA opinion is of minimal probative value in evaluation of the Veteran’s claim and the Board further finds that the opinion of Dr. K.P. is of greater probative value as Dr. K.P. noted a review of the Veteran’s medical history (to include development of pulmonary fibrosis and polymyositis) and provided a rationale for his finding of a positive nexus. Accordingly, there is a competent and credible basis to conclude that the Veteran’s current pulmonary fibrosis is caused by active duty. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Therefore, service connection for pulmonary fibrosis is warranted. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel