Citation Nr: 18154970 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 15-06 846 DATE: December 3, 2018 ORDER Entitlement to service connection for a chronic lung disease, including obstructive lung disease and pulmonary scarring as a result of exposure to asbestos is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a chronic lung disease due to a disease or injury in service, to include exposure to asbestos. CONCLUSION OF LAW The criteria for service connection for a chronic lung disease are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1954 to September 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a January 2018 video conference hearing before the undersigned. A transcript of the hearing has been associated with the claims file. Service Connection Service connection may be granted for a disability due to disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). To substantiate a claim of service connection, there must be evidence of: a current claimed disability; incurrence or aggravation of a disease or injury in service; and a causal link (nexus) between the disease or injury in service and the claimed disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for a chronic lung disease The Veteran contends that service connection is warranted for a chronic lung disease. In support of his claim for service connection, the Veteran has alleged that he frequently worked with and was exposed to materials which contained asbestos and that there was little or no ventilation or adequate personal protective equipment used during his time in service. He also asserted that he worked in and was housed in quarters which contained asbestos. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veteran’s Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). Adjudication Procedure Manual, M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29.a (Sept. 29, 2006). Also, an opinion by VA’s Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-00. VA must analyze the Veteran’s claim of entitlement to service connection for asbestos-related disease under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The Adjudication Manual contains guidelines for the development of asbestos exposure cases. They indicate that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also, noted is that the latent period varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). The Adjudication Manual provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. See VAOPGCPREC 4- 2000 (April 13, 2000); Ashford v. Brown, 10 Vet. App. 120, 123-24 (1997) (holding that a Veteran’s claim had been properly developed and adjudicated, but the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular’s claim-development procedures). The Board also notes that the pertinent parts of the Manual guidelines on service connection in asbestos-related cases are not substantive rules, and that there is no presumption that a Veteran was exposed to asbestos in service. See Dyment v. West, 13 Vet. App. 141 (1999), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. Turning to the evidence of record, the Veteran’s service treatment records are silent as to complaints, treatment, or a diagnosis of a respiratory disorder. Notably, in a Report of Medical Examination, completed at discharge in September 1957, the Veteran checked “No” for lungs. The Veteran’s military occupational specialty was that of a Hospital Corpsman who completed Field Medical Service Training. Current VA guidance shows that the probability of exposure to asbestos for a Hospital Corpsman is minimal. Nevertheless, the Veteran has testified and has reported, during the pendency of the appeal, that he was exposed to asbestos in 1955 while being housed in quarters that contained asbestos. He also contends that in 1955 he was transferred to a hospital and assigned to the plastic cast room, where he was exposed to asbestos after assisting in the application and removal of body casts which created a tremendous amount of dust, which he believed included gypsum dust. He testified that he wore old-fashioned pull-on masks. He also contended that he was exposed to asbestos in 1956 after living, working, and sleeping in buildings which were contaminated with asbestos. A January 2004 private treatment record revealed that the Veteran has significant asthma since age 51, over fifteen years prior, which required resuscitation and intubation on two occasions. In an April 2004 private treatment records, the Veteran was assessed with diffuse inspiratory and expiratory wheezing, severe obstructive and restrictive pulmonary disease with underlying non-steroidal anti-inflammatory drug sensitivity, and a chronic cough. In April 2004, the Veteran was hospitalized for shortness of breath and severe asthma exacerbation. His discharge diagnoses included respiratory arrest which had resolved, exacerbation of COPD, acute bronchitis, and borderline troponin-pulmonary evaluation. Private treatment records, dated in August 2004, October 2004, January 2005, June 2006 and August 2006, reveal that the Veteran had advanced lung disease. Specifically, the records revealed severe COPD with no significant reversibility demonstrated. The record also reveals that the Veteran had never smoked but was exposed to second-hand smoke. A November 2013 private treatment record, authored by Dr. W.A., reveals that the Veteran was diagnosed with COPD with elements of chronic bronchitis and asthma. The physician noted that the Veteran was prone to acute severe exacerbations and that self-injection of corticosteroids had been life-saving. The physician also stated that the Veteran was allergic to aspirin. In an April 2014 private treatment record, Dr. W.A. noted that he had treated the Veteran over the past 20 years. The physician also noted that the Veteran had chronic lung disease, to include chronic obstructive lung disease and pulmonary scarring connected to asbestos exposure in the mid to late 50s. The physician also noted that the Veteran had advancing pulmonary disease and that pulmonary function studies documented vital capacity that was half of normal, along with greatly reduced air flow rates and diffusing capacity for oxygen. In a September 2014 private treatment record, Dr. W.A. noted that the Veteran had advanced lung disease with vital capacity in the range of 50 percent of predicted normal. The physician opined that it was likely that the Veteran’s present lung condition was directly related to a series of exposures over time during his military service, including exposure to asbestos products. An October 2014 private treatment record reveals that a CT scan showed no evidence of lung fibrosis or other interstitial lung disease. In a November 2014 private DBQ, the Veteran was diagnosed with asthma with a COPD overlap, with onset dates of December 2006. In the medical history section of the report, the examiner stated that the Veteran’s asthma was likely from exposure to gypsum dust. A December 2014 treatment record reveals that the Veteran was diagnosed with asthma and COPD. The Veteran treated with corticosteroids and as bronchodilator therapy. A chest x-ray revealed clear lungs with no evidence of asbestosis. The Veteran was afforded a VA respiratory examination in December 2014. The examiner noted diagnoses of asthma and COPD, both with onset dates in the 1990s. The Veteran reported that he first developed respiratory symptoms while working as a medical corpsman in the cast room. The Veteran reported that as such time, he remembered coughing with sputum production when the casts were cut for removal. The Veteran also stated that he was stationed, lived, and worked at CamPen, which had asbestos in them. He reported that he coughed a great deal at this period in his life. The examiner opined that it was less likely than not that the Veteran’s diagnoses of reactive airway disease/COPD and pulmonary scarring was less likely than not caused by or the result of asbestos exposure during service. The rationale provided was that coughing and sputum production are not unusual symptoms when a person is exposed to a dusty environment, including those in which asbestos fibers are present. The examiner also stated that the Veteran’s MOS as a corpsman did not give him unusual exposure to asbestos and that he was not seen or treated for a pulmonary condition or diagnosed with asthma until 30-35 years following service. The examiner stated that there was no evidence on imaging by a private provider or by him of asbestos plaques or interstitial fibrosis, and that the private physician’s opinion did not state that any imaging showed any evidence of the findings of asbestos or that the Veteran carried the diagnosis of restrictive lung disease. The examiner further stated that although the latency period for asbestos on standard imaging can lag 20 years, it had been 57 years since the claimed exposure, by which time one would expect that the hallmark signs of asbestosis (pleural plaques) would show up on imaging. Therefore, the examiner concluded that any possible exposure that the Veteran had to asbestos while on active duty was trivial, that he does not and had never had asbestosis, and that his asthma was not symptomatic during his time on active duty. In a November 2016 private treatment report, a physician noted diagnoses of asthma and COPD. Testing revealed a mild decrease in the diffusion capacity of the lungs. The Veteran was unable to perform confirmatory spirometry and a chest CT showed focal pleural thickening and small nodules, without evidence of fibrosis or interstitial lung disease. Following the hearing, the Board determined that a VHA opinion was appropriate to determine the nature and etiology of the Veteran’s respiratory disorder, in light of the medical evidence of record. In a September 2018 VHA opinion, the expert stated that none of the Veteran’s medical records confirmed a finding of asbestosis, but instead that his treatment plan suggests asthma and COPD being treated. The expert also noted that it was less likely than not that the Veteran’s diagnoses of aspirin sensitive asthma and COPD were due to asbestos exposure. The rationale provided for the opinion was that asbestos exposure occurs upon inhalation of asbestos dust and that there was no suggestion in the available reports that the asbestos in the Veteran’s living quarters was airborne. The expert also acknowledged that there was a suggestion that the Veteran was exposed to gypsum dust, but noted that only a mild, essentially inconsequential, decrease in diffusion capacity of the lung was seen on pulmonary function testing. The expert reported that the Veteran’s decrease in diffusion capacity during the November 2016 VA examination was likely due to exposure to gypsum dust. The expert also noted that there was no evidence of asbestosis or fibrosis on either chest x-ray or CT scan and that radiographic findings would be permanent, not transient. Further, the expert noted that pulmonary function studies suggest obstruction, which is a characteristic of asthma and COPD, and that asbestosis and dust inhalation diseases produce restriction not obstruction. Upon reviewing the Veteran’s medical therapy, the examiner noted that the Veteran was treated for asthma and COPD and that it appeared that such conditions were what accounted for the Veteran’s symptoms, stated medical history. The expert opined that these symptoms were not caused by either asbestosis or gypsum exposure and that the Veteran did not have an asbestosis-related disorder. After careful consideration of the evidence of record, the Board finds that the preponderance of the evidence weighs against a nexus between the Veteran’s lung disorders and his contended in-service exposure to asbestos. The record clearly shows that the Veteran is diagnosed with a respiratory disease. However, it is not persuasively shown by the competent evidence of record that he has a diagnosis of asbestosis or that his current diagnoses are related to a period of military service. The Board acknowledges that several private evaluations found, to a reasonable degree of medical probability, that the Veteran was exposed to asbestos, but no physician has stated that the Veteran had asbestosis. Further, the VHA examiner found that the Veteran did not have asbestosis. The Board also acknowledges the lay assertions that the Veteran has asbestosis. Although he is competent to describe his symptoms, he is not competent to diagnose a pulmonary disorder, such as asbestosis, which requires diagnostic testing as well as medical expertise to identify. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board). Even if the Board presumes that the Veteran was exposed to asbestos during service, the dispositive issue is whether his current respiratory disability was caused by the in-service exposures. Here, the preponderance of the evidence reveals that the Veteran does not have asbestosis or an asbestosis-related disorder and that the Veteran’s currently-diagnosed respiratory disorder is not related to service, to include exposure to asbestos in service. In weighing the medical opinions of record, the Board finds that the December 2014 VA opinion and September 2018 VHA opinion to be most probative. The VA and VHA examiners are shown to have reviewed the entirety of the Veteran’s claims file, to include the private opinions of record. While not dispositive, a review of the claims file did allow the examiners to make better informed decisions than the private physician who provided cursory statements rather than detailed rationales in support of their findings. Significantly, as shown by the September 2018 examiner, the Veteran’s lung conditions appear to be inconsistent with asbestosis. As cited by the VHA examiner, the Veteran’s prevalent conditions, COPD and asthma, suggested obstruction rather than restriction which asbestosis and dust inhalation produce. The VHA examiner is shown to have considered all claimed in-service exposures, the medical records, and the lay evidence. On balance, the Board notes that the private physician’s opinions lack supporting rationale, to include the Veteran’s entire medical history, diagnostic testing, pulmonary function testing, chest x-rays, and the form of treatment received. The Board has also acknowledged the Veteran’s contentions. However, the Board finds that lay assertions as to medical relationship or nexus do not provide persuasive support for the claim. The matter of the medical etiology of current lung disability upon which this claim turns is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau, 492 at 1377. Although a lay person is competent to report matters within his or her own personal knowledge, and, in certain situations, to comment on presence of a simple condition, such as one observed or otherwise perceived through the senses, a lay person is not competent to provide evidence as to more complex medical questions. Id; see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In summary, the Board finds that, when taken as a whole, the evidence weighs against a finding that the Veteran’s lung disorders were due to service, to include in-service exposure to asbestos. The Veteran’s service treatment records are silent as to a lung disorder and the Veteran did not receive a diagnosis until the late 1980s to early 1990s, nearly thirty years following discharge. Further, the most probative evidence of record indicates that the Veteran does not have asbestosis and that his current respiratory disorders are not related to service. (Continued on the next page)   While the Board is sympathetic to the Veteran’s contentions, the Board finds that the preponderance of the evidence is against the claim. As such, for all the foregoing reasons, the Board finds that the claim for service connection for a lung disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel