Citation Nr: 18154088 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 13-32 132 DATE: November 29, 2018 ORDER Entitlement to service connection for a respiratory disorder, to include asbestosis, pleural effusion, pleural plaques, chronic obstructive pulmonary disease (COPD), and emphysema, to include as due to asbestos exposure, for purposes of entitlement to accrued benefits is denied. FINDING OF FACT The competent medical evidence does not demonstrate that the Veteran had a disabling respiratory disorder that was attributable to the Veteran’s active service or any incident of service, to include as due to in-service asbestos exposure. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, to include asbestosis, pleural effusion, pleural plaques, COPD, and emphysema, as due to asbestos exposure, for purposes of entitlement to accrued benefits have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1945 to December 1955. He died in February 2014. The appellant is the Veteran’s son. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. The Board previously remanded this matter in January 2018. The Board finds there has been substantial compliance with its January 2018 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) The Board notes that based on the multiple respiratory diagnoses of record, the Board has expanded the claim to include these diagnoses as possibly related to asbestos exposure in service. Entitlement to service connection for a respiratory disorder, to include asbestosis, pleural effusion, pleural plaques, COPD, and emphysema, as due to asbestos exposure, for purposes of entitlement to accrued benefits The Veteran contends that he has a respiratory condition that is attributable to his exposure to asbestos while in service. Specifically, he asserts that he developed asbestosis after service that is due to his exposure to asbestos while carrying out his duties as a boilerplate technician in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of a respiratory condition, specifically pleural effusion, pleural plaques, and emphysema, and evidence reflects that he was exposed to asbestos while in service, the preponderance of the evidence weighs against finding that the Veteran’s respiratory disorder began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). To begin, the Board acknowledges that the Veteran has attested to being exposed to asbestos while carrying out his duties as boilerplate technician in service. His DD-214 form shows that his military occupational specialty was as a boilerplate technician. It is well documented that this occupation necessitated exposure to asbestos. Accordingly, the Board accepts the Veteran’s assertion that he was exposed to asbestos in service. Service treatment records are silent for complaints, treatment, or diagnosis of a respiratory condition. In an August 2012 statement, the Veteran stated that he was a boiler operator during service and was required to perform maintenance on the equipment aboard ship. He said he routinely had to remove asbestos from around the equipment, and was exposed to asbestos 7 days per week for at least 12 hours per day. The Veteran said that he was on board multiple ships during service and worked in the boiler room in all of the ships. He concluded that he was diagnosed with asbestosis in February 2012. In an August 2012 private treatment record, it was noted that the Veteran was a former smoker and smoked 1 pack per day for 50 years. A November 2012 private treatment record showed that the Veteran had asbestos related pleural plaques. There was no evidence of mesothelioma and the Veteran did not have asbestosis which was a fibrotic lung disease. The treating physician said that he was at an increased risk of lung cancer due to combined asbestos and smoking exposure. It was noted that the Veteran worked in a private utility company for 12 years following service; his work included turbine operator and boiler room work. He also worked in the Air Force power plant for 19 years. A March 2013 CT scan was performed and compared to one done in February 2012. The treating physician found that there were multiple partially-calcified pleural plaques consistent with a history of asbestos exposure. There was also an interval increase in right pleural effusion, which was now small to moderate in size. There was no left pleural effusion. The lungs appeared hyperexpanded and there were numerous subpleural blebs within the left upper lobe similar to the previous study. There were no acute infiltrates seen. There was some atelectasis of the right lower lobe. In an August 2013 VA opinion, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the evidence of record showed that the Veteran presented with “asbestos markers” in the form of pleural plaques. There was no evidence that the Veteran suffered from asbestosis. Additionally, the examiner stated that the Veteran also suffered from emphysema and COPD which were more likely than not due to his 40 to 50 years of heavy smoking. The examiner further clarified that the Veteran’s pleural plaque with calcification only constituted “markers” of previous asbestos exposure but did not constitute asbestosis. The examiner stated that it was possible to allocate/apportion the Veteran’s pulmonary conditions to his occupational and non-occupational exposures. For example, the Veteran presented with calcified pleural plaques, which were findings typical of prior asbestos exposure. On the other hand, the Veteran suffered from other pulmonary conditions that were more likely than not due to his chronic and heavy 40 to 50 years smoking history; specifically, his emphysematous findings and COPD were due to chronic heavy smoking. The examiner stated that in-service occupation was that of the equivalent of a boiler technician. The examiner noted the Veteran’s statement that during service, he worked as a boiler technician for 12 years. However, after leaving the service, the Veteran continued to be employed in occupations with high potential for asbestos exposure. Therefore, the Veteran’s pleural markers were most likely due to a combination of in-service and post-service exposure to asbestos with the overwhelming majority of the exposure to asbestos being incurred post-service. The examiner stated that medical records were silent for a diagnosis of asbestosis because the Veteran did not suffer from asbestosis. The current findings were those of only markers of prior asbestos exposure. In an August 2018 VA opinion, the examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner first noted the difference between asbestos exposure and asbestosis. The examiner stated that the spectrum of pleuropulmonary disorders associated with asbestos exposure included the following: asbestosis; pleural disease (benign asbestos effusion, focal and diffuse benign pleural plaques); and malignancies. The examiner stated that asbestosis specifically referred to the pneumoconiosis caused by inhalation of asbestos fibers. The disease was characterized by slowly progressive, diffuse pulmonary fibrosis. The examiner noted that the Veteran served as a boiler technician in the Navy, which was highly probable for asbestos exposure. The examiner reviewed the medical evidence of record and specifically looked at the death certificate which listed COPD and asbestosis exposure as the cause of death. The examiner said that unless an autopsy was done which confirmed pulmonary fibrosis, the examiner felt that the word asbestosis exposure was mistakenly used in place of asbestos exposure. The examiner stated that pleural plaques and diffuse pleural thickening were benign consequences of asbestos exposure. They were markers of past history of asbestos exposure but did not constitute asbestosis. Finally, the examiner looked to medical literature and determined that the Veteran did not meet the criteria for a diagnosis of asbestosis as he never developed interstitial fibrosis. Thus, the examiner concluded that it was less likely than not that the Veteran had a diagnosis of asbestosis incurred in or caused by his duties as a boiler technician during service. The Board finds that the VA examiners’ opinions are the most probative evidence at hand. The Veteran’s assertion that he was exposed to asbestos dust while working as a boilerplate technician in service is fully credible. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Veteran is competent to detail his history of respiratory symptoms. However, there is no evidence in the record which indicates that he possesses the training or credentials to competently conclude that his exposure to asbestos led to the development of a respiratory disorder after service. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). The Board notes that the Veteran submitted medical treatment records showing diagnoses of pleural effusion and pleural plaques that are physical findings that can be indicative of an asbestos-related respiratory condition. Additionally, the Board notes that the Veteran’s private treating physicians and VA examiners noted that these diagnoses were markers of asbestos exposure. However, the evidence of record shows that the Veteran continued to work in occupations following service with high likelihood of exposure. Also, though the August 2013 VA examiner found that the Veteran’s pleural markers were more likely a combination of in-service and post-service asbestos exposure, the examiner concluded that the overwhelming majority of asbestos exposure was post-service. Further, the Veteran’s diagnoses of COPD and emphysema were found to be related to the Veteran’s long history of smoking. Finally, it was determined that the Veteran did not have a diagnosis of asbestosis. Thus, while the Veteran has presented evidence which may suggest that he has an asbestos-related disorder, ultimately his assertion has little probative value due to the lack of a corroborating medical opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (holding that the Board can “weigh the absence of contemporaneous medical evidence against the lay evidence of record”). In summation, the VA examiners’ conclusions that the Veteran does not have asbestosis, that his pleural effusion and pleural plaques are not related to asbestos exposure in service, and that finally his COPD and emphysema is attributable to his history of smoking is far more probative than the Veteran’s contentions that the findings of pleural effusion and pleural plaques indicate that he has an asbestos-related disorder attributable to service. Moreover, there is no objective medical evidence that the Veteran’s COPD and emphysema is related to service, to include as due to asbestos exposure. As the Veteran has submitted no objective medical evidence in support of his claim, and in light of the highly probative VA examiners’ opinions, the preponderance of the evidence is against a determination that any respiratory disorder is attributable to service, to include as due to asbestos exposure. Accordingly, the Board finds that no medical nexus exists between the Veteran’s diagnosed pleural effusion, pleural plaques, COPD, and emphysema, and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). As the preponderance of the evidence is against the Veteran’s claim of service connection for a respiratory disorder, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel