Citation Nr: 18151501 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-09 574 DATE: November 20, 2018 ORDER The petition to reopen the claim of service connection for a lung disorder, to include asthmatic bronchitis, restrictive airway disease, right upper lobe nodule, chronic obstructive pulmonary disease secondary to tobacco use and non-small-cell carcinoma of the right upper lobe is granted. Service connection for a lung disorder, to include asthmatic bronchitis, restrictive airway disease, right upper lobe nodule, chronic obstructive pulmonary disease secondary to tobacco use and non-small-cell carcinoma of the right upper lobe is denied. FINDINGS OF FACT 1. In November 2012, the Board denied the claim of service connection for a lung disorder. The Veteran was informed in writing of the adverse determination and his appellate rights at that time. The Veteran did not subsequently appeal. 2. The additional documentation submitted since the November 2012 Board decision is new and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a lung disorder. 3. The Veteran’s lung disorder was not caused by his in-service exposure to asbestos, lead-based paint, diesel fuel, cleaning agents, paint remover and solvents while stationed aboard the USS Moale. CONCLUSIONS OF LAW 1. The November 2012 Board decision denying service connection for a lung disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran’s claim of service connection for a lung disorder has been presented. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to establish entitlement to service connection for a lung disorder have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(d) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1966 to November 1966. The Veteran also served in the U.S. Army Reserve from October 1973 to July 1977, to include active duty for training (ACDUTRA) on February 25, 1976; April 10, 1976 to April 12, 1976; April 19, 1976 to May 2, 1976; September 11, 1976; September 25, 1976 to September 26, 1976; December 17, 1976 to December 19, 1976 and February 7, 1977 to February 11, 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Huntington, West Virginia Regional Office (RO). In July 2018, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claim. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. Reopening Generally, a claim that has been denied in an un-appealed Board decision is final and may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017); Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). In November 2012, the Board denied service connection for a lung disorder because it found that the Veteran’s lung disorder was not caused by his claimed in-service exposure to asbestos and non-skid materials. The Veteran was notified of this decision but did not appeal or submit new and material evidence within one year of the notification of the Board decision. The denial is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b) (2012); 38 C.F.R. §§ 3.104, 3.156(a) (2017). The November 2012 Board decision was based on service treatment records, military personnel records, the Veteran’s statements, a “buddy statement,” VA treatment records, and VA medical opinions. Evidence submitted since the final November 2012 Board decision consists of the Veteran’s written statements, private treatment records, VA treatment records, a private medical opinion and a Board hearing transcript. In his statements, the Veteran reasserted his contention that his lung disorder was caused by his exposure to asbestos, lead-based paint, diesel fuel, cleaning agents, paint remover and solvents while stationed aboard the USS Moale. Private treatment records reflect the Veteran’s diagnoses of right upper lobe nodule, chronic obstructive pulmonary disease (COPD) secondary to tobacco use and non-small-cell carcinoma of the right upper lobe. VA treatment records reflect the Veteran’s diagnosis of restrictive lung disease, treatment and diagnostic testing of his lung disorder. The Board hearing transcript reflects the Veteran’s testimony concerning the circumstances of his in-service exposure aboard the USS Moale, symptoms the Veteran claims to have experienced and the Veteran’s post-service occupations. The medical opinion is a positive etiology opinion indicating that the Veteran’s lung disorder was caused by his in-service exposure to asbestos, lead-based paint, diesel fuel, cleaning agents, paint remover and solvents aboard the USS Moale. For the limited purpose of reopening the Veteran’s underlying claim, the opinion raises a reasonable possibility of substantiating his claim of service connection when considered with the previous evidence of record. Justus v. Principi, 3 Vet. App. 510 (1992) (holding that when determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed). The Board finds that new and material evidence has been received; therefore, the Veteran’s claim of service connection for a lung disorder is reopened. Service connection for a lung disorder Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts that his lung disorder was caused by his daily exposure to asbestos, lead-based paint, diesel fuel, cleaning agents, paint remover and solvents while stationed aboard the USS Moale during his active duty service with the U.S. Navy. Military personnel records (MPRs) indicate that the Veteran served aboard the USS Moale from July 11, 1966 to October 10, 1966 – approximately 3 months. In a July 2010 statement, the Veteran indicated having reported his concerns with exposure and breathing difficulties to the service medical examiner at least three times. A July 1966 service treatment record (STR) reflects the Veteran’s report of experiencing nervousness, trouble eating and sleeping with a subsequent diagnosis of irritable bowel syndrome along with notations relating to the Veteran’s personal difficulties. STRs are otherwise silent for complaints or contemporaneous reports pertaining to breathing difficulties or concerns about exposure to asbestos or other chemicals aboard the USS Moale. The Veteran’s report of separation from the armed forces (DD Form 214) reflects that his duty specialty during his naval active duty service was signalman. The signalman is primarily responsible for visual “ship-to-ship” communications when ships were under radio silence. See https://www.navy.mil/submit/display.asp?story_id=10511 (last visited November 8, 2018). In his statements, the Veteran asserted that he was exposed to asbestos from the steam pipes and heating ducts on the USS Moale. He also asserted exposure to lead-based paint, diesel fuel, paint remover and solvents due to various working conditions aboard the USS Moale. However, he has not submitted any evidence to substantiate this exposure or its amount and his assertion is therefore based on his surmise. The in-service event prong of service connection is not established. The Board is presented with no information as to whether the Veteran was exposed to the substances as he has alleged during his three-month duty with the U.S. Navy. Even if exposure is presumed, the Board cannot ascertain the degree of exposure without resort to speculation to conduct informed medical inquiry. In his July 2010 statement, the Veteran argued that he reported his breathing difficulties to the service medical examiner at separation from the Navy. However, in the Veteran’s November 1966 Navy separation medical examination report, no lung abnormalities were noted by the service medical examiner. In his July 2018 Board hearing, the Veteran testified that he experienced shortness of breath after separation from the Navy. In an August 2005 “buddy” statement, the Veteran’s friend indicated having observed the Veteran experience trouble breathing after separation from the Navy. However, in the Veteran’s October 1973 U.S. Army Reserves pre-entrance medical history report – approximately 7 years after separation from the U.S. Navy – the Veteran answered in the negative to the question of whether he then had, or once had shortness of breath or any other symptoms concerning his lungs. In addition, in his October 1973 U.S. Army Reserves pre-entrance medical examination report, no lung abnormalities were noted. The Army Reserve medical records are highly probative as they bear directly on the Veteran’s credibility in view of their then-contemporaneous accounts. They were generated with a view towards ascertaining the Veteran’s then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); see also LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). In a September 2000 VA treatment record, the Veteran was diagnosed with asthmatic bronchitis. No etiology opinion was provided. In an April 2005 VA treatment record, a chest radiograph performed in March 2005 revealed no acute cardiopulmonary process and no evidence of calcified pleural plaques. In a January 2005 statement, a VA medical doctor indicated that the Veteran “suffers from exposure to asbestos” and that he was “exposed to asbestos while onboard ship.” The VA medical doctor indicated that the Veteran has restrictive lung disease and several associated symptoms. The VA medical doctor indicated having “reviewed the pertinent medical records” and opined that the Veteran’s restrictive lung disease was caused by his exposure to asbestos in service. However, the VA medical doctor’s January 2005 opinion is of low probative value because it is conclusory and does not provide the Board with sufficient analysis to consider and weigh the opinion. Although the Veteran may competently report to the physician what he recalled about his three months of Naval service, there is nothing in the report to indicate that the physician had any information as to the Veteran’s accuracy of recall, or the amount of exposure that may have caused any current disorder. The physician provided no rationale and does not account for the Veteran’s post-service occupations. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (holding that a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion). In June 2005, the Veteran was afforded a VA examination. The Veteran reported exposure to asbestos and other chemicals aboard the USS Moale. However, the Veteran e also reported post-service occupations as a textile plant worker for 9 years, police officer and railroad electrician. It was noted that the Veteran smoked 1 pack of cigarettes per day for 2 years. A chest radiograph revealed normal findings and no indication of asbestos exposure. However, a pulmonary function test revealed a moderate restrictive lung defect. The VA examiner diagnosed the Veteran with restrictive airway disease with no evidence of asbestosis. The examiner opined that the Veteran’s lung disorder was not caused by his exposure to asbestos or other chemicals aboard the USS Moale; rather, the Veteran’s post-service occupational exposure to textile fibers as a textile plant worker and chemicals as an electrician resulted in scar tissue to his lungs which led to restrictive airway disease. The examination report is highly probative – it is factually informed, medically competent and responsive to the Board’s current inquiry. Guerrieri v. Brown, 4 Vet. App. 467 (1993) (the evaluation of medical evidence involves inquiry into, inter alia, the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches). In a September 2005 VA treatment record, the Veteran was diagnosed with restrictive lung disease. The VA medical doctor opined that the Veteran’s diagnosis was “compatible with asbestosis.” This medical opinion is of low probative because it is conclusory and provides no rationale. Stefl, supra. In March 2012, the Veteran was afforded another VA examination. The Veteran was diagnosed with restrictive airway disease. A chest radiograph revealed no acute chest process, clear lungs and no abnormal pleural plaques or pleural effusion. The examiner opined that the Veteran’s lung disorder was not caused by service because the Veteran did not have documented respiratory difficulties until approximately 2003 and the Veteran was exposed to post-service pulmonary hazards for approximately 26 years. In an April 2013 VA treatment record, it was noted that the Veteran smoked 1 pack of cigarettes per day for 4 years. It was also noted that post-service, the Veteran worked as an electrician and on diesel engines. In a May 2013 VA treatment record, the Veteran was diagnosed with COPD and a right upper lobe nodule. Pulmonary function tests revealed a moderate small airway obstruction with minimal restrictive ventilatory defect. No etiology opinion was provided. A December 2013 private treatment record reflects the Veteran’s diagnoses of lung nodules and COPD. No etiology opinion was provided. An October 2014 VA computerized tomography (CT) scan revealed subtle hazy parenchymal density in the right upper lobe. The VA medical doctor indicated that the CT results show a focal area of scarring or fibrosis. No etiology opinion was provided. In May 2017, the Veteran underwent a private right lateral thoracotomy, wedge excision of the right upper lobe nodule, right upper lobectomy and mediastinal lymph node dissection. It was noted that he was a former cigarette smoker of 5 years. The Veteran’s post-operation diagnoses were right upper lobe lung nodule, COPD secondary to tobacco use and non-small-cell carcinoma of the right upper lobe. No etiology opinion was provided. In his July 2018 Board hearing, the Veteran testified to having worked in dust-ridden environments and cleaned out diesel fuel without protective clothing or ventilation while aboard the USS Moale. The Veteran alleged that he experienced trouble eating and sleeping and that it was reported to the service medical examiners. He testified to experiencing shortness of breath and that it continued after separation from the Navy. The above-portion of the Veteran’s testimony is not credible and is of low probative value because, as noted above, STRs show that the Veteran’s in-service symptoms of difficulty eating and sleeping were diagnosed as irritable bowel syndrome, and the Veteran answered in the negative to the question of whether he then had, or once had shortness of breath in his October 1973 U.S. Army Reserves pre-entrance medical history report. The Veteran also testified having smoked cigarettes for 5 years and that he worked in a textile factory for 8 years as a clerk and rarely went to the factory floor. He also testified having worked as an electrician on a railroad fixing diesel engines and electrical panels. In a July 2018 private medical opinion, Boyd Sprenkle, M.D. diagnosed the Veteran with “restrictive lung process.” Dr. Sprenkle indicated having treated the Veteran since March 2017 and that the Veteran was exposed to paint and other chemicals while in the Navy. Dr. Sprenkle also indicated that the Veteran’s symptoms, to include dyspnea, intermittent wheezing and coughing, began 3 months after separation from the Navy and that the chronological history of the Veteran’s symptoms “would certainly be consistent with exposures while he was on active duty.” Dr. Sprenkle’s medical opinion is of low probative value because it is conclusory and does not provide the Board with sufficient analysis to consider and weigh the opinion. It does not account for the Veteran’s post-service occupations and does not discuss the June 2005 and March 2012 VA examinations. Significantly, Dr. Sprenkle’s medical opinion does not discuss the June 2005 VA chest radiograph that revealed normal findings and no indication of asbestos exposure and the March 2012 VA chest radiograph that revealed no acute chest process, clear lungs and no abnormal pleural plaques or pleural effusion. Stefl, supra. The preponderance of the probative evidence is against a finding that the Veteran’s lung disorder was caused by any incident of service. The Veteran is not credible in his assertion of experiencing shortness of breath at separation from the Navy. In addition, two VA examiners opined that the Veteran’s lung disorder was not caused by his in-service exposure. Therefore, service connection is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel