Citation Nr: 18143431 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 15-34 670 DATE: October 19, 2018 ORDER Entitlement to service connection for a respiratory condition, to include chronic obstructive pulmonary disease (COPD), asbestosis and restrictive lung disease, is granted. Entitlement to service connection, to include on a secondary basis, for an acquired psychiatric disorder, to include adjustment disorder, depression, panic attacks and anxiety, is granted. FINDINGS OF FACT 1. The diagnosed respiratory condition has been shown to be etiologically related to the Veteran’s active service. 2. The diagnosed psychiatric disorder has been shown to be etiologically related to the Veteran’s service-connected respiratory condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory condition have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to June 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by a Department of Veterans Affairs Regional Office (RO). In October 2016, the Veteran testified at a DRO hearing. A copy of the transcript of that hearing has been associated with the claims file. In an January 2018 decision, the Board denied the Veteran’s service connection claims for respiratory condition and a psychiatric disorder. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2018 Order, the Court vacated the Board’s January 2018 decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). In pertinent part, the JMR found that the Board did not provide adequate reasons and bases for finding the medical treatise submitted by the Veteran irrelevant in light of the fact that the treatise contradicted both VA examiner’s conclusions that unilateral pleural thickening was not indicative of asbestos exposure. The Court further found that the Board did not adequately explain its finding that the positive November 2016 medical opinion by Dr. GP lacked probative value in light of the fact that the opinion included a rationale. The Board notes that the January 2018 decision additionally remanded the issues of entitlement to service connection for lumbar spine, cervical spine and bilateral shoulder disabilities for issuance of a statement of the case (SOC) by the Agency of Original Jurisdiction (AOJ). To date, the AOJ has not issued the requested SOC. The AOJ is clearly aware of the January 2018 Board remand instructions; therefore, those issues are referred for appropriate action. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) 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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Lay evidence presented by a Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Respiratory Condition The Veteran asserts entitlement to service connection for a respiratory condition. Specifically, the Veteran asserts that his military occupational specialty (MOS) required him to install telephone lines and cables which exposed him to asbestos without the use of protective equipment. He asserts that his current respiratory conditions are etiologically related to his in-service asbestos exposure. A review of the evidence of record shows that during service the Veteran worked as a wire system installer. The service treatment records (STRs) show treatment for bronchitis in March 1982 and an upper respiratory infection in December 1984. A June 2011 private medical record shows the Veteran reported having fluid on his lungs in 1990 that had drained. He further reported that at that time constant left sided pressure led to shortness of breath. A March 2011 CT scan was noted to reveal bullous disease mostly affecting the left apex with severe thickening of the left pleura with calcification, possibly related to asbestos exposure or prior infection. A pulmonary function test (PFT) performed in April 2011 was noted to reveal mild restrictive ventilatory limitation with mildly decreased diffusion. The physician noted that smoking had probably been contributing to some of his breathing issues. In a July 2011 statement, the Veteran asserted that he was exposed to asbestos while he was stationed in Germany. In another July 2011 statement, the Veteran asserted that during service he was exposed to asbestos as a result of moving cables while installing a computer system and that the cables were asbestos lined. In August 2011, a private medical record noted diagnoses for restrictive lung disease, asbestosis and pleuritic chest pain. The physician noted extensive left pleural plaques secondary to previous electrician work in the Army. In a September 2011 statement, the Veteran asserted that during service he worked on telephone lines and changed old step switches to new computerized Seamans switches requiring tearing cables from walls and ceilings that were coated in asbestos which created thick clouds of dust. Between 1989 and 1990, the Veteran reported that he started feeling pressure in his left lung which developed fluid that drained out but came back. The Veteran underwent a VA examination in March 2013 during which he was diagnosed with COPD and restrictive lung disease most likely not due to asbestos exposure. The Veteran was also diagnosed with left lung thoracentesis. The Veteran reported that during service he installed and repaired telephone lines and cables. He also reported that in 1989 his left lung developed fluid build-up that required several aspirations. In addition, the Veteran reported that two-years prior he had significant pain along his left lateral ribs and was diagnosed with asbestosis. The examiner further noted the Veteran had an over twenty-year smoking history. An August 2011 VA X-ray study was noted to reveal emphysema and calcified pleural plaquing and volume loss in the left hemithorax which was not found related to asbestos. The examiner opined that the diagnosed lung conditions were “less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.” In support of this opinion the examiner noted the Veteran’s medical history including STRs which assessed the Veteran with bronchitis in March 1982 and which noted the Veteran was sent to the ER to rule-out pericarditis. In this regard, the examiner noted that the STRs were thereafter silent as to any respiratory condition including an August 1984 periodic examination. The examiner also noted the Veteran’s post-service occupational history including teaching automotive technology for seven-years and repairing and installing telephone lines for seventeen-years. The examiner further noted post-service medical records which revealed a severe unilateral restrictive ventilatory defect which made asbestosis less likely and prior hemothorax or empyema the more likely cause of his pleural plaques. The examiner also addressed the Veteran’s diagnosed lung conditions. With regard to his diagnosed COPD, the examiner did note that bronchitis could be a form of COPD, but, as noted above, following the initial assessment for bronchitis no further STR evidenced a diagnosis for that condition. Instead, the examiner noted that per the medical literature, smoking was the main risk factor for the development of COPD. Based on the over twenty-year history of smoking, COPD was found less likely than not caused by active duty service. With regard to the diagnosed restrictive lung disease, the examiner noted the Veteran had a twenty-four-year post-military occupational history with “known risk of asbestos exposure per the medical literature.” The examiner further noted a reported three to four-year in-service history of intermittent asbestos exposure that was not confirmed. Finally, the examiner noted that the medical evidence only showed pleural plaques on the left lung and that plaquing of both lungs would be expected if the condition was due to asbestos exposure. A May 2015 letter from the Veteran’s VA treating physician noted the Veteran was currently being treated for moderately severe restrictive lung disease and that thoracic surgeons were going to evaluate for surgery “of the asbestosis caused pleural plaques.” At an October 2016 DRO hearing, the Veteran testified that he was exposed to asbestos while installing telephone lines. He further stated that he was exposed to constant dust with no respiratory protection including masks. The Veteran further testified that he had breathing problems during and after service and that he went to see a doctor in 1989 after his symptoms worsened. In addition, the Veteran testified that he was only exposed to asbestos during service and that his post-service occupation involved climbing telephone poles. In a November 2016 letter, the Veteran’s VA physician noted that the Veteran was being following for chronic chest wall pain and COPD. The physician noted X-ray evidence of pleural plaques that was “probably from exposure to asbestos.” The Veteran underwent another VA examination in November 2016. The examiner noted diagnoses for COPD and restrictive lung disease. The examiner noted “probably exposure” for asbestos during service with a MOS of electronic technician. The examiner also noted that in 2011 and 2013 there was mention of bronchoscopy with washings with no mention of asbestos fibers. Thereafter, a diagnosis for asbestosis was noted to begin appearing in clinical notes although the examiner noted that that diagnosis was not confirmed by bronchoalveolar lavage fluid or biopsy. The examiner also noted a twenty-nine-year smoking history. A May 2015 chest X-ray study revealed left-sided pleural thickening and calcified plaques. The radiologist noted that the left-sided pleural thickening and calcification might not be due to prior asbestos exposure but might be the result of prior empyema. A September 2014 CT scan was noted to reveal no pathologic hilar or mediastinal adenopathy. Based on the evidence of record, the examiner opined that it was “less likely as not that the current lung condition of pleural plaques and COPD are related to asbestos exposure.” In support of this opinion, the examiner noted no confirmed diagnosis of asbestosis. In addition, the examiner noted that the pleural plaques were only found on the left lung and that one would expect to find pleural plaquing in both lung if related to asbestos exposure. The examiner further noted that asbestosis and pleural plaques were related conditions that occurred some twenty to thirty-years following asbestos exposure, but that the Veteran was symptomatic two-years after separation from service. In this regard, the examiner found that it was at least as likely as not that the left lung pleural plaques were a residual of a prior lung infection in 1989 that had required thoracentesis. The Veteran submitted a November 2016 letter from his private pulmonologist, Dr. GP, who opined that the Veteran had a diagnosis of asbestosis. In this regard, Dr. GP noted that radiographic findings were consistent with asbestos exposure and that the Veteran’s MOS as an electrician was also consistent with asbestosis. In October 2017, the Veteran submitted medical treatises including a treatise titled “Roentgenographic Evidence for Predominant Left-Sided Location of Unilateral Pleural Plaques.” This treatise found that left-sided predominance of unilateral plaque was a consistent and unexplained epidemiologic finding and that unilateral plaques were more common than generally recognized. Finally, in a June 2018 private opinion letter, Dr. EWA opined that “to a reasonable degree of medical certainty” the Veteran’s current respiratory conditions were “caused by exposure to asbestos fibers while service in the military.” Dr. EWA based this opinion on a review of the claims file, medical literature and his experience a medical doctor and a VA examiner. Specifically, Dr. EWA noted that a diagnosis of asbestosis and pleural plaques had been made by multiple physicians beginning in 2011, that a July 2017 VA CT scan revealed left basilar parenchymal scarring indicative of a history of asbestos exposure, and a diagnosis for chronic calcified pleural plaquing on the left side which was noted as a condition commonly resulting from asbestos fiber inhalation. Dr. EWA further noted that either asbestosis or chronic calcified pleural plaques was expected to appear decades after exposure. In this regard, Dr. EWA noted that the dates of exposure (1981-1987) and the later 2011 diagnosis was consistent with the medical literature thus lending support to such a relationship. In addition, Dr. EWA disputed the March 2013 and November 2016 VA examiners’ conclusions that the unilateral nature of the pleural plaques made it less likely the Veteran had asbestosis. Finally, Dr. EWA noted no evidence that the Veteran’s condition met the criteria for empyema which prior VA examiners found as the most likely cause of the current respiratory condition. Based on the above, Dr. EWA stated that it was “as likely as not” that the respiratory conditions resulted from in-service asbestos exposure. After a review of the evidence or record, the Board finds that service connection for a respiratory condition is warranted. In the present case, there is sufficient evidence the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically, the Veteran has been diagnosed with respiratory conditions including COPD and restrictive lung disease. The record also supports the Veteran’s assertion that his MOS during serving was a wire system installer. See DD214. Accordingly, the Veteran clearly has current diagnoses and the remaining question is whether those diagnoses are otherwise related to service. In this regard, the Board finds the June 2018 private medical opinion letter the probative evidence of record. Based on a review of the evidence and the medical literature, Dr. EWA opined it was “as likely as not” that the respiratory conditions resulted from in-service asbestos exposure. Dr. EWA additionally disputed prior VA medical opinions which did not find an etiological link between in-service asbestos exposure and the Veteran’s current respiratory conditions. While the March 2013 and November 2016 VA examiners found that pleural plaque affecting only the Veteran’s left lung weighed against a finding of asbestos exposure, Dr. EWA noted medical literature that had contradicted those findings. The Board further finds that the June 2018 positive nexus opinion is supported by the November 2016 opinion letter by Dr. GP who found the Veteran had a diagnosis of asbestosis based on radiographic evidence and that the Veteran’s MOS was consistent with such exposure. This opinion is additionally supported by the November 2016 letter from the Veteran’s VA physician who noted evidence of pleural plaques on X-ray study that was “probably from exposure to asbestos.” At the very least, the evidence is in relative equipoise with regard to a causal connection between the claimed in-service asbestos exposure and the current respiratory conditions. As such, the evidence of record supports a finding that the diagnosed respiratory conditions are etiologically related to in-service exposure to asbestos. Thus, all three Shedden requirements have been met and service connection for a respiratory condition is warranted. The claim is granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Acquired Psychiatric Disorder The Veteran asserts entitlement to service connection for an acquired psychiatric disorder. Specifically, the Veteran asserts that he has a diagnosed psychiatric disorder that is secondary to his now service-connected respiratory condition. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of nonservice-connected condition. 38 C.F.R. § 3.310(a), (b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The evidence of record includes a March 2013 VA examination in which the Veteran was diagnosed with adjustment disorder with depressed mood. Current symptoms included depressed mood, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, and disturbances of motivation and mood. The Veteran reported extreme difficulty with irritability, crying spells two to three times per day, poor energy and poor motivation due to pain and restricted activities. The examiner opined that the diagnosed psychiatric disorder was “less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s diagnosed respiratory conditions. However, this opinion was solely based on the fact that the Veteran was not currently service connected for a respiratory condition. The examiner went on to opine that the Veteran’s adjustment disorder was caused by the pain, frustration and limitation of his physical capabilities due to his respiratory condition. Accordingly, the evidence of record shows the Veteran has a currently diagnosed psychiatric disorder which a VA examiner determined to be caused by his respiratory disorder. Importantly, there is no medical evidence to the contrary. (Continued on the next page)   Therefore, the evidence of record supports a finding that the diagnosed psychiatric disorder is etiologically related to the Veteran’s service-connected respiratory condition. The claim is granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel