Citation Nr: 18152145 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-47 829 DATE: November 21, 2018 ORDER Entitlement to service connection for asthma and mixed restrictive / obstructive lung disease is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran did not have a current respiratory disorder that had a demonstrable causal linkage to military service, including his diagnosed asthma. 2. There was no indication of asbestosis, by objective testing procedures, or other respiratory condition with a plausible linkage to asbestos exposure at any time during or around the Veteran’s active military service. 3. There was not a confirmed clinical diagnosis of PTSD under the DSM-5 made during the Veteran’s lifetime. Assuming accuracy of the earlier 2011 treatment summary that did include notation of PTSD, there is no verified or verifiable stressor to otherwise support recovery. CONCLUSIONS OF LAW 1. The criteria to establish service connection for asthma and mixed restrictive / obstructive lung disease have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 2. The criteria to establish service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1975 to May 1977. The claims on appeal as addressed herein were initially filed by the Veteran. Subsequently, the Veteran died in 2015. His former spouse became the substituted claimant in this matter. See 38 U.S.C. § 5121A (2012). Service Connection 1. Entitlement to service connection for asthma and mixed restrictive / obstructive lung disease. Neither the appellant nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection is available for current disability resulting from disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. 3.303 (a) (2018). Service connection also may be granted for disease diagnosed after discharge where incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay 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 present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. On the other hand, continuity of symptomatology is required where the condition noted during service is not shown to be chronic or where chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). However, the availability of continuity of symptomatology as a principle to substantiate service connection is limited to those specific diseases denoted as “chronic” under 38 C.F.R. 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). For sake of completeness, the Board cites further to pertinent guidance there is on claims based upon asbestos exposure. The M21-1 is not binding authority on the Board, and the Board cannot rely on it without independent analysis. Overton v. Wilkie, No. 17-0125, 2018 U.S. App. Vet. Claims LEXIS 1251. However, with regard to asbestos-related claims, there are no statutory or regulatory provisions, and no precedential opinions from the VA General Counsel. Therefore, the Board finds it useful to address the guidance and information set forth in the M21-1, as it is relevant to asbestos-related claims. The M21-1 provisions related to asbestos are favorable to veterans because they set forth a non-exhaustive list of examples of situations and diseases that are associated with asbestos exposure. While not establishing a presumption, these provisions make it easier to substantiate a claim for a disability based on exposure to asbestos when compared with the three elements required to substantiate a claim for direct service connection. Consideration of the M21-1 provisions regarding asbestos exposure is favorable even if the claim fails. The Board also notes that it is not relying on the M21-1 to deny the Veteran’s claim. The M21-1 provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service, and further, a diagnosed disability that has been associated with in-service asbestos exposure. Occupational exposure is known as the most common cause of asbestosis, but the condition can have other causes. The following is a non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, Part IV, Subpart ii, Chapter 2, section C, 2. The M21-1 further provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, Part IV, Subpart ii, Chapter 1, section I, 3. The Board does not deny the claim because the Veteran’s MOS is not on this list, which it emphasizes is non-exclusive. Instead, the Board relies on the fact that the record itself does not support a finding of asbestos exposure, and neither the Veteran nor the appellant have provided lay descriptions of how the Veteran believed he was exposed in service. Having thoroughly reviewed the case record, the Board does not find that service connection for a respiratory disorder is warranted. There was not a respiratory disability, or precipitating incident from military service. The Veteran’s Service Treatment Records (STRs) do not disclose any symptoms, findings, or complaints in regard to a respiratory disorder. There were no prodromal symptoms or clearly reported instances of exposure to asbestos, or evidence of an asbestos-related disease. The findings since the Veteran’s separation from military service do not further show any issue, however. There was no sign of respiratory problems for over 30 years post-service, either reported or documented. A November 2004 VA general medical examination denoted primarily cardiovascular issues, but nothing inasmuch as the respiratory system. The Veteran underwent a VA respiratory examination in January 2014. The comprehensive study essentially found no linkage to service for a respiratory condition. The diagnoses were asthma; and mixed restrictive/obstructive lung disease, nonreversible. Medical history was that review of VA Medical Center (VAMC) records showed a concern with asbestos exposure in 2007. Pulmonary Function Tests (PFTs) done in November 2007 showed a diagnosis of restrictive lung disease. This was later called asthma, and mixed restrictive lung disease, nonreversible. A December 2007 CT scan of the chest showed no pleural plaques, minimal benign appearing pleural thickening adjacent to an old rib fracture, and nonspecific linear parenchymal scarring bilateral upper lobes. The Veteran was also noted to have frequent pneumonia, reflux, coronary artery disease and edema, chronic sinusitis, smoking, as well as sleep apnea on CPAP. He had a long history of dyspnea on exertion and wheezing at night. Further notated, per the Veteran, he was not exactly sure what was wrong with his lungs. He had been told he had emphysema. He did state that he got frequent pneumonias and respiratory infections. He especially had dyspnea and wheezing at night and during forest fires, inversions with smog, blooming flowers. He had dyspnea on exertion and often used an electric cart while shopping. In service, he was changed from radioman to deck, and stated that he was grinding paint on deck without a dust mask, and also did spray painting with a paper mask and painting of pipe insulation. Total time in service was just over 2 years. He stated he started smoking at age 31 and quit at about age 47. Post-service occupations had included title examiner, some construction, plumbing. The Veteran had been unemployed since 2004, it was stated, due to heart disease, PTSD and dyspnea. The dyspnea was considered related to lung and heart disease. An opinion was provided that the Veteran’s respiratory condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The stated rationale was as follows: The Veteran’s lung condition, mixed restrictive/obstructive lung disease, is not consistent with asbestosis. The pattern on his HRCT does not show any of the typical features of asbestos related lung disease: pleural plaques (absence of which supports other Interstitial Lung Diseases, not asbestosis); basilar and dorsal fibrosis (his is apical) and linear subpleural densities (his is limited to the area of old rib fracture). His most recent CXR [chest x-ray] is normal, without any evidence of asbestos related disease. PFTs with asbestosis show restriction and an absence of airflow obstruction. His PFTs do show restrictive features, consistent with interstitial disease, and his obstructive features (wheezing, environmental sensitivities) could be due to his smoking and diagnosis of asthma. However, the evidence taken as a totality support that his lung disease and dyspnea symptoms are most likely due to a combination of smoking history, diastolic dysfunction with edema, frequent pneumonias and URIs, and gastric reflux. In addition, …. he had minimal risk of asbestos exposure, making it even less likely he has asbestos-related disease. There is no information provided about the Veteran’s job in service as a painter, and literature review does not identify paints as a source of asbestos. Based upon the foregoing, the competently stated and supported VA medical opinion above strongly weighs against asbestos exposure during service, asbestosis thereafter, or respiratory condition including asthma that happened to be of disability of service origin. The VA examiner attributed the Veteran’s asthma to several nonservice-related factors, up to and including smoking history, hypertension, and gastric reflux. The opinion is well-supported and carries significant probative weight. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (the thoroughness and detail of a medical opinion is a factor in assessing the probative value of the opinion). There is no contrary opinion of record. The Veteran’s own reported history must next be considered, and he had provided a statement in regard with reported exposure to environmental toxins in service. The Veteran by his March 2007 statement averred on this subject, that he was transferred to the U.S.S. Kansas City to work in the deck department. He daily used various pneumatic tools including needle guns, chippers, grinders, deck strippers, etc. (that part offered in support of the separate claim for service connection for hearing loss, based upon a loud noise exposure). He stated further, more than once he was covered from head to toe in diesel fuel. He stated that he was constantly exposed to epoxy deck surfacing and other chemicals. Therefore, for purpose of this claim, it will be considered onward at least a reasonable possibility that the Veteran had some environmental exposure to toxins other than asbestos. The Veteran and the appellant in this case are not competent to provide an opinion that exposure to environmental toxins caused his respiratory condition. Determining whether chemicals caused a disability requires inquiry into biological processes, pathology, and the impact of a substance on the workings of the body. Such internal physical processes are not readily observable and are not within the competence of the Veteran or the appellant in this case, who has not been shown by the evidence of record to have the skills, experience, or medical training needed to provide a competent opinion. Therefore, the lay assertion that exposure to toxins caused the Veteran’s respiratory disabilities is not probative. The preponderance of the evidence weighs against a causal association between respiratory system manifestation, and an incident of service. The most probative evidence record is the January 2014 examination report. The Veteran’s and appellant’s lay opinions are not competent and therefore not probative. VA’s benefit-of-the-doubt doctrine does not apply under these circumstances, and the claim is therefore being denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for PTSD. There are specific additional criteria to establish service connection for PTSD: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2018). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a). 38 C.F.R. § 3.304(f). The requirement of an in-service stressor is established by the Veteran’s testimony alone if he is shown to have engaged in combat with the enemy. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996). If VA determines the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor’s occurrence and no further development or corroborative evidence is required provided that such testimony is found to be “satisfactory,” i.e., credible, and “consistent with the circumstances, conditions, or hardships of service.” See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Apart from the above provisions, 38 C.F.R. § 3.304 (f)(3) eases the requirement that there be objective corroboration of a claimed in-service stressor. If a stressor claimed by a veteran is related to his or her fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressor, provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. The Board’s review of the record indicates that the criteria to establish service connection are not met. There was not a clear diagnosis of PTSD. The most comprehensive clinical evaluation of record for the claimed condition was the January 2014 VA examination for psychiatric disorders, which stated that the Veteran did not have a diagnosis of PTSD that conformed to DSM-5 criteria based on evaluation. The grounds were as follows: the Veteran’s symptoms did not meet diagnostic criteria for PTSD, he had other diagnoses of personality disorder and substance induced mild neurocognitive disorder due to alcohol, and further, the VA examiner perceived that there was excessive “confabulation” of stressors, symptoms, and several other case aspects. The main issue the examiner identified was that averred in-service stressors appeared fabricated given factual inconsistencies, clear inconsistencies time and again with what routinely happened under the Navy regulations, and clear exaggeration in a manner that did not suggest credibility. The examiner also noted that the Veteran had “…longstanding patterns of distortions in his cognitions….” The examiner stated that the Veteran “strongly appears to be confabulating,” and that none of the Veteran’s stressors were “believable.” Thus, the best clinical findings ruled out a PTSD diagnosis. On the other hand, there was another VA practitioner, a clinical counselor, who did diagnose PTSD back in May 2011, and noted this in a March 2014 letter to the Veteran. There was no in-service incident specified in connection with that diagnosis, whereas it was documented in a treatment summary. On the whole the Board considers the January 2014 VA examiner’s clinical assessment to be most persuasive insofar as it followed a detailed interview, clinical assessment with direct application of the PTSD DSM-5 criteria, and a thoroughly longitudinal review of the Veteran’s medical, social and occupational history. Under applicable law, Board has the duty to weigh competing opinions and their bases, and determine which to accept as the most persuasive. See Elkins v. Brown, 5 Vet. App. 474, 478 (1993). Assuming arguendo that the diagnosis of PTSD was still considered to have been demonstrated, given the earlier 2011 finding, there is nonetheless not a corroborated stressor. Based upon available information, essentially, there is nothing to indicate an encounter with hostile or enemy forces, such that there could be waiver of the requirement of stressor corroboration. The corroboration requirement then being necessary, the VA examiner pointed out that the stated stressors were presented in what was a seemingly exaggerated manner, without any existing details for purpose of current or former verification. The Board finds the Veteran’s report of his stressors not credible because he was confabulating, that is, producing fabricated or otherwise distorted memories without the conscious intent to deceive. His descriptions of his perceived stressors are not reliable and not probative. In any event, as indicated, the confirmed diagnosis of PTSD in all reasonable likelihood was not made in this case. The Board is moreover cognizant that the Veteran’s representative requested an examination addendum given the 2011 prior psychological assessment that stated PTSD was a demonstrated diagnosis, but finds that in view of the limited degree of any stressor shown, and the already obtained findings from January 2014 where a VA examiner specifically explained why PTSD was not diagnosed, there are no grounds to obtain another opinion. The Board has further considered whether there have been grounds to consider any other presently diagnosed psychological condition as being causally linked with the Veteran’s service, in addition to or other than PTSD, which was already the subject of the present claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). On the whole there was no diagnosis, psychiatric symptom, or problem during service. The post-service conditions are noncompensable such as personality disorder per 38 C.F.R. § 3.303(c), absent clearly superimposed injurious circumstances. Elsewhere notated was what was apparently due to a pattern of substance abuse. Accordingly, the only issue to consider remains exclusively service connection for PTSD. For these reasons, the preponderance of the evidence is unfavorable, and this claim must be denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel