Citation Nr: 19116433 Decision Date: 03/06/19 Archive Date: 03/06/19 DOCKET NO. 13-06 741 DATE: March 6, 2019 ORDER Entitlement to service connection for 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. §§ 1110, 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 1973 to March 1975, June 1977 to September 1986, and September 1986 to 1987. The Veteran appeals an April 2012 rating decision by the Agency of Original Jurisdiction (AOJ). In March 2015, the Board remanded the Veteran’s claim to the AOJ for further action consistent with the Board’s remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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. §§ 1110, 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 Veteran has COPD. See October 2011 VA examination report. Additionally, the Veteran’s MOS as a seaman and yeoman is found to have minimal risk for asbestos exposure. See August 2016 JSRRC Letter. The Veteran also described working under asbestos wrapped pipes while aboard military ships. See April 2012 Veteran Statement. Furthermore, the November 1982 reenlistment examination in the service treatment records (STRs) notes abnormal findings on a chest x-ray. The October 2011 VA examiner submitted a positive nexus opinion. The October 2011 examiner opined “asbestos exposure can be a factor in chronic obstructive pulmonary disease development.” In contrast, the January 2012 VA clinician submitted a negative nexus opinion. The January 2012 clinician emphasized the Veteran’s smoking history. Nevertheless, the January 2012 VA clinician seemed to discount the Veteran’s asbestos exposure due to the lack of any asbestosis diagnosis 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 January 2012 clinician’s opinion improperly discounted any effect asbestos exposure has on COPD, the Board finds the October 2011 opinion better-supported and accordingly more probative than the January 2012 opinion. (Continued on the next page) 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 A. Zheng, Associate Counsel