Citation Nr: 1809751 Decision Date: 02/15/18 Archive Date: 02/27/18 DOCKET NO. 14-26 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a chronic respiratory disorder, to include as secondary to in-service asbestos exposure. 2. Entitlement to service connection for a chronic respiratory disorder, to include as secondary to in-service asbestos exposure. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Navy, with active duty service from November 1952 through November 1956. Thereafter, the Veteran served as a member of the US Coast Guard, with active duty service from April 1959 through May 1963. The Appellant is the Veteran's surviving spouse. This appeal comes to the Board of Veterans' Appeals ("Board") from rating decisions, dated January 2006 and December 2009, issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Winston-Salem, North Carolina (hereinafter Agency of Original Jurisdiction ("AOJ")). In pertinent part, the January 2006 rating decision denied the Veteran's claim for entitlement to service connection for a lung disability, to include as due to asbestos exposure. The Veteran was notified of this decision in correspondence dated January 18, 2006. No appeal was made within a year of the January 2006 rating decision, and thus, the denial became final. Thereafter, in March 2009, the Veteran filed a claim to reopen the January 2006 denial of entitlement to service connection for a chronic respiratory disorder, to include as secondary to in-service asbestos exposure. This request was denied by the AOJ in a December 2009 rating decision, where the AOJ found the Veteran had not submitted new and/or material evidence sufficient to reopen the prior denial. The Veteran timely appealed this decision, and in an April 2013 statement of the case ("SOC"), the AOJ found the Veteran had submitted new and material evidence sufficient to reopen his claim. However, following a review of this evidence, the AOJ continued the Veteran's denial for entitlement to service connection finding there was no evidence of a medical nexus. In June 2013, the Veteran timely submitted a substantive appeal. During the pendency of his appeal, on October 4, 2013, the Veteran died. At the time of his death, the Veteran's claim to reopen the prior denial for entitlement to service connection for a chronic respiratory disability, to include as due to asbestos exposure, was pending and unadjudicated. In October 2013, VA received a timely application from the Veteran's surviving spouse to be substituted as the claimant for VA compensation for a chronic respiratory disorder following the Veteran's death. The request for substitution was granted. As such, VA now recognizes the widow as the claimant and appellant in the pending appeal for entitlement to service connection for a chronic respiratory disability, to include as due to asbestos exposure. See 79 Fed. Reg. 52,982 (Sept. 5, 2014) (VA amended its regulations to allow an eligible survivor to substitute for a deceased claimant in the decedent's pending claim or appeal of a decision on a claim where the deceased claimant died on or after October 10, 2008); see also 38 C.F.R. § 3.1010 (a substitute claimant is entitled to the same rights under VA regulations as if the decedent (in this case, the Veteran) had not died during the pendency of his appeal). Thereafter, in a March 2014 supplemental statement of the case ("SSOC"), the AOJ continued to deny the Appellant's claim for entitlement to service connection for a chronic respiratory disorder, to include as secondary to in-service asbestos exposure. The Appellant testified at an August 2017 Board videoconference hearing, held before the undersigned Veterans Law Judge. A transcript of this hearing has been reviewed and associated with the electronic claims file. Following the Appellant's testimony at the August 2017 hearing, additional medical records and evidence was submitted to the Board. In submitting this additional evidence, neither the Appellant nor her representative requested an initial review by the AOJ. See 38 C.F.R. 20.1304(c). Accordingly the Board finds appellate consideration may proceed without any prejudice to the Appellant. This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS"). Accordingly, any future consideration of this Appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. In a January 2006 Rating Decision, service-connection for a chronic respiratory disorder was denied. The Veteran was notified of this denial, and his appellate rights, but he did not appeal this denial and it became final. 2. Evidence received since the January 2006 Rating Decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service-connection for a chronic respiratory disorder. 3. The Veteran's service personnel records show that during his active duty service with the US Navy, his military occupational specialty ("MOS") was gunners mate, a specialty with a strong likelihood of asbestos exposure. 4. The record evidence shows that, between his service separation and his death, the late Veteran was diagnosed with interstitial lung disease with pleural plaques. 5. The record evidence is in relative equipoise as to whether the late Veteran's in-service exposure to asbestos caused his interstitial lung disease with pleural plaques. CONCLUSIONS OF LAW 1. The January 2006 Rating Decision denying entitlement to service connection for a chronic respiratory disorder is final. 38 U.S.C. § 7104(b) (West 2012); 38 C.F.R. §§ 3.156, 3.160(d), 20.1100, 20.1104 (2017). 2. The evidence submitted subsequent to the January 2006 Rating Decision is new and material, and the issue of entitlement to service-connection for a chronic respiratory disorder, to include as secondary to in-service asbestos exposure, is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. A chronic respiratory disorder, including interstitial lung disease with pleural plaques, was incurred during active duty service as due to in-service asbestos exposure. 38 U.S.C. §§ 1103(a), 1110, 1131, 5103, 5103A, 5107, 5121 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.300(b)(1), 3.303, 3.304, 3.1010 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). With respect to the service connection claim decided herein, with the Veteran's surviving spouse substituting for the late Veteran as the appellant in this current appeal, VA has met all statutory and regulatory notice and duty to assist provisions, or has otherwise demonstrated that there is no prejudice to the Veteran for any notice deficits. The current appeal stems from the late Veteran's application to reopen a previously denied claim for entitlement to service connection for a chronic respiratory disorder, to include as due to asbestos exposure. This request was received by the AOJ in March 2009. In response, the AOJ issued VCAA notice letters, dated April 2009, August 2009, and October 2009, which informed the Veteran of the information and evidence not of record that is necessary to substantiate his claim, the information and evidence that the VA will seek to provide, and the information and evidence the Veteran is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). These letters also informed the late Veteran how disability ratings and effective dates are established. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As complete notice was provided prior to the December 2009 rating decision now on appeal before the Board, no timing of notice deficit exists. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Appellant in obtaining evidence and affording her the opportunity to give testimony before the Board. Of record are the late Veteran's service medical records, post-service private medical records, and all relevant records from identified VA medical centers ("VAMC"), including Ashville VAMC and Salisbury VAMC. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the electronic claims file; the Appellant has not contended otherwise. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. Green v. Derwinski, 1 Vet. App. 121 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2014). The late Veteran was afforded a VA medical examination in February 2013, in which nexus opinions addressing the relationship between his respiratory diagnoses and his military service were obtained. Thereafter, an addendum medical opinion was obtained by the AOJ in October 2013, which similarly addressed the etiology of the late Veteran's respiratory disability. The Board is aware of the evidentiary requirements in developing claims for VA compensation for respiratory disease based on asbestos exposure. As noted in the Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988); VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997); and the Court decisions in Ennis v. Brown, 4 Vet. App. 523, 527 (1993); and McGinty v. Brown, 4 Vet. App. 428, 432 (1993), the M21-1 provides that when considering claims for VA compensation due to asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure in service (M21-1, Part III, par. 5.13(b); M21-1, Part VI, par. 7.21(d)(1)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure; and determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (M21-1, Part VI, par. 7.21(d)(1)). In the present case, the Board finds that the late Veteran's account of exposure to asbestos during active duty is credible for purposes of adjudicating this appeal and concedes that such exposure occurred. Furthermore, the VA opinions of February 2013 and October 2013 specifically address the likelihood of a relationship between the late Veteran's respiratory diagnoses and his conceded asbestos exposure. Thusly, no further development in this regard is warranted. The Board thus concludes that the present state of the evidence of record is adequate for it to fairly adjudicate the appeal and no further development is warranted. The Appellant was afforded the opportunity to appear and testify before the undersigned Veterans Law Judge ("VLJ") at an August 2017 Board videoconference hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claims that was lacking to substantiate the claims for benefits. The VLJ specifically noted the issues as including the issues listed on the title page of this decision. The Appellant was assisted at the hearing by a representative from the North Carolina Division of Veterans Affairs. The representative and the VLJ then asked questions to ascertain whether the Appellant had submitted evidence in support of these claims. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Appellant's hearing constitutes harmless error. Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Appellant and no further action is necessary to meet the requirements of the VCAA. Moreover, the neither the Appellant nor her representative have advanced any procedural arguments in relation to VA's duties to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Lastly, the Board has thoroughly reviewed all the evidence in the electronic claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Appellant or on her behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). General Laws and Regulations Governing Entitlement to Service Connection: In seeking VA disability compensation, a claimant generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Alternatively, VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). However, in Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). i. Claim to Reopen Prior to the Board's determination as to whether the Appellant is entitled to an award of service connection for a chronic respiratory disability, for accrued benefits, the Board must first determine whether new and material evidence has been submitted sufficient to reopen the claim. The Board observes that the late Veteran was previously denied entitlement to service connection for a respiratory disability in a January 2006 rating decision. The AOJ denied the late Veteran's claim as the medical evidence failed to show the occurrence of an in-service disability. The late Veteran filed a request to reopen this previously denied claim in March 2009. Notably, the later Veteran specifically applied for entitlement to service connection for a respiratory disability, to include as due to asbestos exposure during his active duty service. In support of his petition to reopen the prior denial, the late Veteran submitted updated private medical records showing diagnoses of multiple lung disabilities, including radiographic evidence of an asbestos related lung disability. Despite this additional evidence, the AOJ denied the late Veteran's request to reopen the claim for entitlement to service connection in a December 2009 rating decision. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As applied to the instant appeal, the Board finds the evidence submitted since the January 2006 rating decision constitutes "new" evidence, as it was not available at the time of the January 2006 rating decision. Moreover, the Board finds the additional evidence submitted is material, as it raises the possibility that the late Veteran's chronic respiratory disability was caused by his in-service exposure to asbestos. Therefore, based upon the above analysis, the Board finds sufficient evidence to reopen the previously denied claim for entitlement to service-connection for a chronic respiratory disability, to include as due to asbestos exposure. ii. Claim for Service connection As discussed above, the Veteran died in October 2013. At the time of his death, his claim for entitlement to service connection for a chronic respiratory disability, to include as due to asbestos exposure, was still pending. The Appellant is the substituted part to his appeal. 38 U.S.C. § 5121A. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88- 8, Asbestos Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have been included in VA Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chap. 1, Sec. I., Para. 3 (August 7, 2015) (M21-1). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00 (April 13, 2000). The aforementioned provisions of M21-1 have been rescinded and reissued as amended in 2015. See M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, entitled "Service Connection for Disabilities Resulting from Exposure to Environmental Hazards or Service in the Republic of Vietnam (RVN)." VA must analyze the Appellant's claim of under these administrative protocols using the specified criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos -related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 2f. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles 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 the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. With regard to occupational exposure, exposure to asbestos has been shown in insulation, mining, milling, demolition of old buildings, carpentry and construction, and shipyard workers, and others including workers involved in the manufacture and servicing of friction products such as clutch facings and brake linings. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 2a-g. Nonetheless, neither the M21-1 provisions nor the DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) create a presumption of exposure to asbestos. Rather, they are guidelines that serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers, and they direct that the raters develop the record, ascertain whether there is evidence of exposure before, during, or after service, and determine whether the disease is related to the putative exposure. Dyment v. West, 13 Vet. App. 141 (1999); Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-00; 65 Fed. Reg. 33422 (2000). Throughout his lifetime, including during the pendency of this claim, the late Veteran contended that he had a chronic respiratory disability as a result of exposure to asbestos while serving in the United States Navy. Specifically, in statements to the Board, the late Veteran reported that asbestos was a common insulation material for conduits, pipes, bulkheads, and ductwork aboard naval vessels during his military service, as the hazards of asbestos were not commonly recognized at the time. See e.g. April 2012 Statement in Support of Claim. He further noted that, as part of his MOS, he was required to chip off paint containing asbestos and make repairs to pipes under the ship's deck. As part of these duties, the late Veteran described being in the vicinity of deck grinding operations, which stripped away surfaces and liberated clouds of dust, including rust particles and paint and asbestos dust, which he reportedly inhaled and breathed. He contended that such exposure led to his current respiratory disorder. The Veteran's military occupational specialty as a gunner's mate indicates the probability of asbestos exposure in service was minimal, however not unlikely. See M21-1, Part IV, Subpart ii, Chapter 1, I.3.e. For purposes of adjudicating the current appeal, the Board finds that the late Veteran's account of in-service shipboard asbestos exposure is credible and thus factually concedes that such exposure occurred. In addition to the late Veteran's credible lay descriptions, the Board observes that his in-service occupation as "gunners mate" is one of the military occupational specialties with a probable exposure to asbestos. Furthermore, the Board finds no evidence which would indicate the late Veteran was exposed to asbestos following his separation from active duty service. As a civilian, the late Veteran was employed as a corrections officer and also worked in the personnel department of a furniture store. Although the late Veteran's service treatment records show occasional treatment for symptoms of coughs and chest congestion, these were acute in nature and resolved with medical treatment. Namely, a review of the late Veteran's service medical records show he was treated on occasion for symptoms of acute upper respiratory infections. All clinical examinations of the late Veteran throughout his active duty service reported normal findings, including chest x-rays, and thus show no clinical indications of onset of restrictive airway disease, much less a diagnosis of asbestosis. However, as noted above, the latency period for asbestos -related diseases varies from 10 to 45 or more years between first exposure and development of disease. In this regard, the Board notes that a review of the medical records indicates the late Veteran was observed to have signs of an asbestos related lung disability beginning in October 2006. Notably, a chest x-ray taken at this time reported increased markings within the bilateral lower lobes of the late Veteran's lungs. See e.g. Private Medical Records from Dr. J.C. Thereafter, a follow-up chest x-ray in November 2007 observed "infiltrates" along the lower left and lower right lobes. A computerized tomography ("CT") scan of the late Veteran's chest in November 2008, reported the presence of calcified pleural plaques bilaterally, "suggesting prior asbestos exposure." See Ashville VAMC Records. Subsequent radiographic reports of the late Veteran's lungs continue to reflect findings consistent with "prior asbestos exposure." See Ashville VAMC Records, April 2012 CT scan. At this juncture, the Board notes that the late Veteran was exposed to asbestos during his active duty service. The Board further finds that, as noted above, the late Veteran was diagnosed with an asbestos related lung disability, namely interstitial lung disease with pleural plaques. See Ashville VAMC Records, April 2012 CT scan. Thus, the remaining issue is whether the late Veteran's lung disability was caused by his in-service exposure to asbestos. The Board finds the medical opinion evidence supports a finding that the late Veteran's in-service exposure to asbestos caused his interstitial lung disease. Namely, the evidentiary record contains numerous medical opinions from the late Veteran's private physicians which support a nexus between the later Veteran's lung disabilities and his in-service exposure to asbestos. For example, a May 2013 medical opinion reports that the late Veteran developed interstitial lung disease as a result of his in-service exposure to asbestos. Additional positive nexus letters were submitted in September 2010, May 2013, and June 2013. The Board is aware the record contains an unfavorable nexus opinion from a February 2013 VA examination. Following a review of the claims folder and a physical examination of the late Veteran, the examiner opined the late Veteran's lung disabilities were not caused by his in-service exposure to asbestos. Continuing, the examiner explained the evidence suggested the late Veteran's lung disabilities were a result of his rheumatoid arthritis. In support of this contention, the examiner cited to the medical evidence which showed the late Veteran had a diagnosis for rheumatoid arthritis and was told by his treating physician in May 2010 that the "progressive interstitial fibrosis," shown on his chest x-rays, were "likely" related to his connective tissue disease (i.e. rheumatoid arthritis). Additionally, the examiner cited to medical literature to further support his opinion that the late Veteran's lung disabilities were not related to any prior asbestos exposure. Overall, the Board finds this February 2013 medical opinion to be of limited probative value. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In this instance, the February 2013 examiner was aware of the Veteran's medical history, but did appear to take into consideration the full medical history in articulating his opinion. Specifically, the Board observes that the late Veteran was diagnosed with interstitial lung disease prior to his diagnosis for rheumatoid arthritis. Additionally, the medical evidence is unclear as to whether this subsequent diagnosis for rheumatoid arthritis played any significant role in the damage to the late Veteran's lungs. For example, in May 2013, the late Veteran's pulmonologist reported the radiographic evidence, including CT scans, showed calcified pleural plaques related to asbestosis and asbestos exposure. Continuing, the pulmonologist reported that the late Veteran did not have arthritis symptoms, and rather, the symptoms of joint discomfort were related to his pulmonary vascular disease. Furthermore, the Board finds the February 2013 examiner's citation to medical literature in support of his negative nexus opinion to be unpersuasive. The literature cited by the examiner states that "approximately 30 to 40 percent of patients with [rheumatoid arthritis] demonstrate either radiographic or pulmonary function abnormalities indicative of interstitial fibrosis or restrictive lung disease." Thus, this citation finds that less than 50 percent of patients with rheumatoid arthritis will experience symptoms of restrictive lung disease. Moreover, the Board finds that using this citation as support for the examiner's conclusion overlooks medical findings which show clear diagnostic findings of a lung disability caused by asbestos exposure. For example, the April 2012 CT scan reported a pattern of interstitial lung disease peripherally with some "honeycomb formation," which is a diagnostic feature of an asbestos related lung disability. Finally, the Board observes that the evidentiary record contains a June 2013 medical opinion from the late Veteran's private physician which notes that signs of asbestos associated lung disease were observed prior to the late Veteran's diagnosis for rheumatoid arthritis. As such, based on this June 2013 medical opinion, the Board finds the February 2013 examiner's conclusions to be factually flawed and entitled to limited probative value. As to the late Veteran's history of smoking, the Board finds that this does not preclude an award of entitlement to service connection. VA regulations prohibit service connection for any disability related to chronic tobacco use (smoking) for claims received by VA after June 9, 1998, which is the case here. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300; Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, 112 Stat. 685, 865-66 (1998). However, service connection is not prohibited if the disability can be service-connected on some basis other than a Veteran's use of tobacco products during service, or if the disability became manifest during service. See 38 U.S.C. § 1103(a); 38 C.F.R. § 3.300(b)(1). In the instant appeal, the evidence demonstrates that the late Veteran's lung disability was the result of his in-service exposure to asbestos. Therefore, 38 C.F.R. § 3.300(b)(1) applies, and the Appellant is not precluded from establishing service connection, even though the late Veteran had a significant history of in-service and post-service smoking. In conclusion, and with consideration of the above analysis, the Board finds in favor of the Appellant's claim for entitlement to service connection for a chronic respiratory disorder, to include as secondary to in-service asbestos exposure, accrued benefit and substitution purposes. The late Veteran was exposed to asbestos during his active duty service and after his separation, developed an asbestos lung disability, specifically interstitial lung disease with pleural plaques. There is medical evidence both in support of and against the contentions regarding an etiological relationship between the late Veteran's lung disability and his active duty service. However, the most probative evidence establishes that the late Veteran's lung disability was a result of his in-service exposure to asbestos. As such, the Appellant's claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a chronic respiratory disability, to include as due to asbestos exposure, is reopened. Entitlement to service connection for a chronic respiratory disability, as due to in-service exposure to asbestos, for accrued benefit and substitution purposes, is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs