Citation Nr: 18141385 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-27 200 DATE: October 10, 2018 ORDER Entitlement to service connection for a respiratory disability, diagnosed as chronic obstructive pulmonary disease (COPD), is granted. FINDING OF FACT The Veteran’s COPD is etiologically related to asbestos exposure during active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1979 to March 1983. The Veteran appeals an October 2014 rating decision by the Agency of Original Jurisdiction (AOJ) denying service connection for asbestos exposure. The evidentiary record contains a diagnosis for COPD; hence, the Veteran’s claim is expanded to a respiratory disability, diagnosed as COPD. See Browkowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). In May 2017, the Veteran requested a Board hearing. See May 2017 VA Form 21-4138. Nevertheless, this decision constitutes a full grant of the Veteran’s requested benefit. As such, the Board finds that disposition of this claim without scheduling the Veteran for a hearing is not prejudicial. A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. Nevertheless, the M21-1 (Developing Claims for SC for Asbestos-Related Diseases) does provide guidance. See M21-1, pt. IV, subpt. ii, §1.I.3 (last accessed on October 9, 2018). With respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See Dyment v. West, 13 Vet. App. 141, 145 (1999). The applicable section of the M21-1 notes a Veteran’s probability of asbestos exposure can be classified by military occupational specialty (MOS). If an MOS is listed as minimal, probable, or highly probable asbestos exposure should be conceded for the purposes of scheduling an examination. See M21-1, pt. IV, subpt. ii, § 1.I.3.d (last accessed on October 9, 2018). Importantly, many people with asbestos-related diseases have only recently come to medical attention because the latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. See M21-1, pt. IV, subpt. ii, § 2.C.2.f (last accessed on October 9, 2018). In Overton v. Wilkie, the Court of Appeals for Veterans Claims (Court) held that the Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons and bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision. 2018 U.S. App. Vet. Claims LEXIS 1251, at *13-14 (Sept. 19, 2018). In this particular case, because there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims, and use is beneficial to the Veteran, the Board finds the M21-1 reliable as to the second and third Shedden elements. The first Shedden element is met. The Veteran has COPD. See October 2016 VA examination report; see also November 2014 W.F. treatment record. The second Shedden element is also met. The Veteran’s MOS in service was hull maintenance technician. On a scale from minimal to highly probable asbestos exposure, the Veteran’s MOS is considered highly probable. See M21-1, pt. IV, subpt. ii, § 1.I.3.d (last accessed on October 9, 2018). The Veteran also described work as a hull technician; for the first three months aboard the U.S.S. Proteus, he lived in engineering birthing space where “much of the removal of installation and other items [were] taking place. Living aboard the ship forced me to have direct asbestos exposure 24/7.” See August 2016 Veteran statement. His shipmate, who also has respiratory problems, corroborated the Veteran’s account. See October 2016 D.D. statement. Thus, in this particular case, the second Shedden element is met. As such, the crux of this case centers on whether the Veteran’s COPD was attributable to asbestos exposure in-service. Physician’s Assistant J.C., who has treated the Veteran for years, opined that it is more likely than not that “some component of his COPD is likely caused by asbestos exposure on this ship in navy, which contributes to his chronic breathing issues, along with his history of smoking. He is currently no longer smoking, and doing all he can to take the pulmonologist’s advice to help with his breathing.” See December 2016 J.C. medical opinion. J.C. also stated that the pulmonology department at W.F. “believe[s] that a lot of the COPD issues he has is from where he worked previously in an area with asbestos.” See July 2014 W.F. treatment record. The Veteran has not otherwise discussed working at a job with asbestos exposure post-service. See August 2016 Veteran statement. In contrast, a VA clinician opined that the Veteran’s COPD was less likely than not incurred in or caused by the Veteran’s service. See October 2016 VA medical opinion. She cited that the Veteran had been a tobacco user for at least 30 pack years and attributed his respiratory condition to his long tobacco use history. Further, the clinician found that the Veteran’s symptoms would have manifested sooner than they did. Nevertheless, the VA clinician assumed the Veteran was not exposed to asbestos and did not discuss what effect, if any, such exposure would have on COPD. It is the Board’s duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, as the October 2016 clinician’s opinion assumed no asbestos exposure, the Board finds J.C.’s December 2016 opinion better-supported and accordingly more probative than the October 2016 opinion. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds that, in this particular case, there is medical evidence of record establishing a link between the Veteran’s COPD and asbestos exposure. Accordingly, the Board finds that a grant of service connection is warranted for COPD. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel