Citation Nr: 18158545 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 10-44 885 DATE: December 17, 2018 ORDER Entitlement to service connection for a lung disability, to include asbestosis, mesothelioma, and asthma is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has asthma due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSION OF LAW A lung disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 1112, 5107(b) (West 2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). Entitlement to service connection for a lung disability, to include asbestosis and mesothelioma The Veteran contends that his lung disability is the result of his active service. Specifically, he contends that he was exposed to asbestos while helping decommission the USS Chuckawan. Service treatment records are silent for any complaints, treatment, or diagnosis of a lung condition. Further, service personnel records indicate that the Veteran’s military occupation code was that of a chef/cook, not recognized by VA as having a high probability of exposure to asbestos. A June 2009 letter from P. T. Esq. notes that an x-ray report from Dr. B. indicates his belief that the Veteran has lung scarring consistent with asbestosis. In a December 2009 letter, Dr. S.Z., noted that the Veteran worked in Norfolk Naval Shipyard from 1974 until 1995 as a heavy equipment mechanic. Further noted was that the Veteran did a lot of brake work and asbestos was used on the brake pads and he worked in proximity to coworkers who were also handling asbestos brake pads. In addition, he noted that “PA and lateral chest x-rays done on April 9, 2009, were reviewed. These showed increased interstitial pulmonary parenchymal markings bilateral indicative of interstitial pulmonary fibrosis. There was pleural plaque in the left lateral chest wall.” After reviewing the Veteran’s chest x-rays, and opined “to a reasonable degree of medical certainty, [the Veteran] has asbestosis. This is based on his occupational exposure to asbestos, abnormal chest x-rays, and abnormal pulmonary function studies.” In his March 2016 Board hearing, the Veteran’s testified that he was stationed on the USS Chuckawan for at least a year and a half where he chipped paint and removed asbestosis from the “uppers on the ship.” He also noted that he worked at a shipyard for 25 years and that he was just diagnosed with type three mesothelioma. In August 2016, the Veteran attended a VA Respiratory Conditions Disability Benefits Questionnaire (DBQ) examination. The examiner diagnosed asthma and reversible small airways disease. X-ray findings indicated no impression of acute cardiopulmonary disease or evidence of asbestos related disease. The examiner opined that it was less likely than not that the Veteran’s lung disabilities were related to his active service, to include asbestos exposure. Rationale provided was although Dr. Z. Md. wrote that the April 2009 “CHR” revealed parenchymal interstitial markings bilaterally, x-rays at the time of this examination did not show it and per radiology findings, there was no acute cardiopulmonary disease or asbestos related disease and: At this time, it appears there is no evidence of asbestosis and the asthma/reversible airway disease diagnosed in 2016, 43 yrs after separation from service is less likely as not related to the service/asbestos exposure since there was no evidence of mesothelioma, pleural plaque found. In April 2018, as required by the September 2017 Board remand, the Veteran attended a VA Respiratory Conditions DBQ examination. The examiner diagnosed asthma. Upon reviewing the evidence, he noted that: There is a record from the Pulmonary Medical Associates of Northern Virginia from 12/10/09 where he was referred for pulmonary function. They said that his pulmonary function tests showed a restrictive defect with the flow rates within normal limits and a decrease in diffusing capacity. PA and lateral chest x-rays were done they said on 4/9/09 showed interstitial pulmonary parenchymal markings bilaterally indicative of pulmonary fibrosis and a pleural plaque on the left chest wall. It should be noted that this chest x-ray is significantly different from a chest x-ray done in 2016, i.e. they show findings related to pulmonary fibrosis and a pleural plaque back in 2009 however chest x-rays from 8/23/16 do not show any of these changes which would be most unusual as these changes should not "disappear" in a seven-year period of time. Chest x-ray report read by Dr. Breyer from 6/3/09 showed "bilateral interstial fibrosis consistent with asbestosis, left profile chest wall pleural plaque. The finding is consistent with asbestos related pleural disease." Again, this is markedly different from the chest x-ray reading from 2016 which was seven years later and is quite surprising as findings such as this should not disappear within a seven-year period. The examiner opined that it was less likely than not that the Veteran’s asthma incurred in or caused by the claimed in-service injury. The rationale provided was that the Veteran’s asthma did not manifest until many, many years after his service. Hence, it is less likely than not that his asthma is related to his service. Asthma is a reactive airway disease; he would have had asthma symptoms soon after exposure to an inciting agent. Based on the foregoing evidence of record, the Board finds that service connection is not warranted for a lung disability, to include asbestosis, mesothelioma, and asthma. With regard to asbestosis and mesothelioma, the evidence of record is silent for a current diagnosis of either. Indeed, his STRs are silent for any complaints, treatment, or diagnosis of asbestosis and mesothelioma. While the Board notes the evidence from 2009 indicates a diagnosis of asbestosis, this is not confirmed by any subsequent medical evidence of record. Indeed, the April 2018 examiner found it “highly unusual” that current evidence did not support those stated findings. The Veteran is competent to report a contemporaneous medical diagnosis; however, the Board finds that current medical evidence more probative in this regard. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). With regard to asthma, the Board finds that the April 2018 opinion to be highly probative, as it reflects review of all the Veteran’s medical records, to include his service treatment records, private treatment records, and VA treatment records. The Board has considered the Veteran’s lay assertions as to the etiology of his asthma. Although the Veteran is competent to attest to his experiences, he is not competent in these circumstances to opine as to the etiology of his asthma. Importantly, the Veteran has not been shown to have specialized medical knowledge that would be necessary to provide a competent opinion regarding service connection. The Board finds the opinion of the April 2018 examiner to be more probative in this regard. The examiners considered the Veteran’s lay statements, and ultimately concluded that from a medical perspective; it is less likely that his current disability is related to any in-service occurrence. In sum, the evidence deemed most probative by the Board, specifically the April 2018 opinion, demonstrates that the Veteran’s asthma did not manifest in service, or indeed for many years thereafter and was not caused by or otherwise related to his active service. The examiner provided rationale for the opinion proffered and is consistent with the evidence of record. BETHANY L. BUCK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel