Citation Nr: 1815894 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 15-10 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a respiratory disorder to include asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from December 1961 to April 1966. This appeal to the Board of Veterans' Appeals (Board) is from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran likely had exposure to asbestos during his military service. 2. The Veteran less likely than not has a current respiratory disorder to include asbestosis that is related to his military service. CONCLUSION OF LAW The criteria are not met to establish service connection for a pulmonary disorder, to include asbestosis. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The requirements of the Veteran's Claims Assistance Act (VCAA) have been met in this case. See 38 U.S.C. §§ 5103, 5103A (2012). The required notice was provided to the Veteran in the VA 21-526EZ claims form that he submitted in January 2014; his signature on the form certifies that this information was received. The Veteran has not identified any defect in the notice or claimed any prejudice as a result. VA has also fulfilled its duty to assist the Veteran in developing his claim. The Veteran's service treatment records and post-service private medical records have been obtained and associated with the claims file. The Veteran has not identified any other outstanding evidence that could be obtained to substantiate the clam, and the Board is also unaware of any such evidence. The RO arranged for a VA examination and the Board obtained a VHA medical opinion. The Veteran appears to challenge the competency of the VA opinion in his substantive appeal on the basis that it was provided by a nurse practitioner; however, the Board finds that as a medical professional she is qualified through her education, training, and experience to offer an opinion. Cox v. Nicholson, 20 Vet. App. 563 (2007). For other reasons, the Board subsequently obtained an expert opinion in November 2017. Thus, the Board finds that VA has satisfied its duties to notify and assist the Veteran in obtaining evidence pertinent to his claim. II. Analysis As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issue on appeal. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends that he has asbestosis as a result of being exposed to asbestos during service. The Board notes that, with respect to claims involving asbestos exposure, there is no specific statutory or regulatory guidance. VA has, however, acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. See VBA's Adjudication Procedure Manual, M21-1, Part IV, subpart ii, Chapter 1, Section I.3.a-f; see also VAOPGCPREC 04-2000 (Apr. 13, 2000). The Veteran's DD Form 214 indicates he worked as a sonar technician and based on his training this military occupational specialty (MOS) has a high probability of asbestos exposure. See M21-1, Part IV, subpart ii, Chapter 1, section I.3.d. There is no evidence in the Veteran's service treatment records that he had respiratory problems in service. See STR - Medical. In October 2013, the Veteran underwent a private CT scan of the chest. The impressions from that diagnostic test included calcified and noncalcified pulmonary nodules that were probably from granulomatous disease, and calcified and noncalcified pleural plaques in the chest, particularly the mid chest and to a lesser degree the lower lung fields, that "could be consistent with a history of asbestos exposure in the appropriate setting." A Disability Benefits Questionnaire (DBQ) date in January 2014 and completed by the Veteran's private physician contains a diagnosis of asbestosis. The report notes the Veteran's medical history and indicates that an October 2013 CT scan showed calcified/noncalcified lung nodules and pleural plaques consistent with exposure to asbestos in the shipyard. See VA Examination received in January 2014. The Veteran's private physician also provided a statement in which he stated that the Veteran had asbestosis based upon physical examination and tests (i.e., a pulmonary test, two chest X-rays, and a CT scan of the chest) conducted in 2013. The Veteran reported being exposed to asbestos in service, and based on the history the physician opined that the Veteran's inhalation of asbestos fiber occurred while working in service, which led to his diagnosis of asbestosis. See Third Party Correspondence received in January 2014. In November 2014, the Veteran underwent a VA examination that resulted in a different opinion. The clinician diagnosed chronic obstructive pulmonary disease (COPD), and opined the Veteran did not have asbestosis. She explained that the Veteran did not have a restrictive ventilator defect (RVD), which is what asbestosis is, and that the Veteran had an obstructive ventilator defect (OVD) of the COPD/emphysema type. In reaching this conclusion, the clinician noted the findings of the October 2013 CT scan and stated that pleural plaques and thickening shown on chest X-rays and CT scan alone were not proof of asbestosis, as there was no objective evidence of a RVD. Instead, her diagnosis was based on the findings of a pulmonary function test (PFT). In summary, the clinician opined that the claimed asbestosis was less likely due to the Veteran's military service. The clinician instead diagnosed COPD, which she indicated was due to the Veteran's smoking history. She noted he had a 30-year history of smoking 3/4 of a pack of cigarettes per day. He quit smoking cigarettes 12 years earlier and cigars 4 years earlier. See C&P Exam received in November 2014. Thereafter, and in support of the Veteran's claim, his representative referenced an Internet article which purportedly stated that prolonged exposure to asbestos fibers could cause lung tissue scarring and shortness of breath; and that asbestosis symptoms could range from mild to severe, and usually did not appear until many years after continued exposure. The representative also pointed out that the American Thoracic Society (ATS), had previously stated that the "general diagnostic criteria for asbestosis are: evidence of structural pathology consistent with asbestosis, as documented by imaging or histology; evidence of causation by asbestos as documented by the occupational and environmental history, markers of exposure (usually pleural plaques), recovery of asbestos bodies, or other means; [and] exclusion of alternative plausible causes for the findings." The representative further indicated that the ATS had also stated that "[m]ore than 50 percent of people affected with asbestosis develop plaques in the parietal pleura, the space between the chest wall and lungs." See Appellate Brief received in August 2017. To reconcile the foregoing evidence, the Board sought an expert opinion from the Veteran's Health Administration (VHA). The pulmonary specialist who reviewed the file in November 2017 found that the Veteran did not (much less than 50 percent probability) have asbestosis. The physician explained that asbestosis is a specific asbestos-related interstitial lung disease characterized by slowly progressive, diffuse pulmonary fibrosis. On chest CT scan asbestosis appears as peripheral and basilar distributed fibrosis, often in a usual interstitial pneumonia (UIP) pattern, which appears as irregular reticulation, traction bronchiectasis, and honeycombing in the peripheral, posterior, subplueral lung. The physician noted that the Veteran's chest CT scan from October 2013 did not report any interstitial parenchymal changes consistent with pulmonary fibrosis or the UIP pattern. Therefore, it was very unlikely that the Veteran had asbestosis. The physician added that clinicians often mistakenly use the term "asbestosis" to refer to "asbestos-related pleuroparenchymal disease" and that it was not uncommon for chest CT scan-detected calcified pleural plaques in a patient with a history of asbestos exposure to be labeled as evidence of "asbestosis" by clinicians. The physician clarified that this was an erroneous use of the term "asbestosis", and observed that this was best exemplified by this Veteran's case. See Correspondence received in November 2017. The favorable and unfavorable medical opinions are probative because they considered the Veteran's history and were supported by rationale. See Monzingo v Shinseki, 26 Vet. App. 97, 106 (2012). 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. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). In the present case, the Board finds that the unfavorable opinions are more probative on the question of whether the Veteran has asbestosis since they provided a more thorough explanation of their rationale. The VHA opinion, in particular, provides the strongest opinion and explanation as to why the Veteran does not have asbestosis as he considered the findings from the October 2013 CT scan as well as the favorable medical opinion from the Veteran's private physician and explained why the other objective evidence in the claims file did not support the private physician's conclusion that the Veteran had asbestosis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As to whether any diagnosed respiratory disorder is related to asbestos exposure, the pulmonary specialist who provided the November 2017 VHA medical opinion stated that he had reviewed the Veteran's pulmonary function tests (PFTs), chest CT scan, and clinic notes and it was his opinion that it was unlikely (much less than 50 percent probability), that the Veteran had a current respiratory disorder related to asbestos exposure. The physician explained: Typically, asbestos-related respiratory disorders present as a restrictive ventilatory defect (RVD) on PFTs. The appellant does not have a RVD. Findings on chest CT scan that can be associated with a respiratory disorder are pleural effusions, pulmonary fibrosis, and malignancy. The appellant's Chest CT scan does not demonstrate any of these findings. Importantly, the asbestos-related "pleural plaques" seen on the appellant's chest CT scan are very unlikely to cause respiratory impairment. The physician further noted that the Veteran's chest CT scan did demonstrate "emphysematous changes". The physician explained that these chest CT scan findings, combined with the Veteran's PFT results (low diffusion capacity, increased residual volume, low FEV1), were consistent with a diagnosis of smoking-related COPD, which was not an asbestos-associated disease. See Correspondence received in November 2017. The VHA pulmonary specialist's medical opinion is highly probative. See Wray v. Brown, 7 Vet. App. 488, 493 (1995). As to the Veteran's COPD, even if the Veteran smoked during active service VA is prohibited from paying compensation for disabilities attributable to tobacco abuse. Indeed, while for claims filed prior to June 9, 1998, service connection may be granted for a disease that resulted from tobacco use in the line of duty during active military service, it is prohibited for claims filed after that date. See VAOPGCPREC 2-97 (O.G.C. Prec. 2-97). The current claim was filed well after 1998, and thus, the law prohibits an award of compensation on the basis of in-service smoking. In short, there is no evidence of a respiratory disorder during service and a disorder was diagnosed many years after service. The more probative evidence indicates the Veteran does not have asbestosis and his current respiratory disorder is not related to service, to include exposure to asbestos. In light of the above, the preponderance of the evidence is against a finding that the Veteran's respiratory disorder manifested during service or is otherwise etiologically related to service. See Gilbert, supra. Since the evidence is not in equipoise and instead is against the claim, the Veteran's is not afforded the benefit of the doubt. ORDER Service connection for a respiratory disorder to include asbestosis is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs