Citation Nr: 20056966 Decision Date: 08/28/20 Archive Date: 08/28/20 DOCKET NO. 16-22 087 DATE: August 28, 2020 ORDER Service connection for congestive heart failure, to include as due to in-service asbestos exposure and as secondary to service-connected bilateral plural effusions, on a substitution basis, is denied. Service connection for pulmonary hypertension, to include as due to in-service asbestos exposure and as secondary to service-connected bilateral plural effusions, on a substitution basis, is denied. Service connection for atrial fibrillation, to include as due to in-service asbestos exposure and as secondary to service-connected bilateral pleural effusions, on a substitution basis, is denied. FINDINGS OF FACT 1. Congestive heart failure was not present in service or for years thereafter, and is not etiologically related to service, to include in-service asbestos exposure, or a service-connected disability. 2. Pulmonary hypertension was not present in service or for years thereafter, and is not etiologically related to service, to include in-service asbestos exposure, or a service-connected disability. 3. Atrial fibrillation was not present in service or for years thereafter, and is not etiologically related to service, to include in-service asbestos exposure, or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for congestive heart failure are not met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 2. The criteria for service connection for pulmonary hypertension are not met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 3. The criteria for service connection for atrial fibrillation are not met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from April 1943 to November 1945. The appellant is his widow. In May 2016, September 2017 and June 2018, this case was remanded for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107 (2012); 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. 1. Service connection for congestive heart failure, to include as due to in-service asbestos exposure and as secondary to service-connected bilateral plural effusions, on a substitution basis 2. Service connection for pulmonary hypertension, to include as due to in-service asbestos exposure and as secondary to service-connected bilateral plural effusions, on a substitution basis 3. Service connection for atrial fibrillation, to include as due to in-service asbestos exposure and as secondary to service-connected bilateral pleural effusions, on a substitution basis The appellant contends that the Veteran had atrial fibrillation, congestive heart failure, and pulmonary hypertension that were related to his in-service asbestos exposure. Alternatively, she contends that his atrial fibrillation and congestive heart failure are related to his service-connected bilateral pleural effusions. Exposure to asbestos aboard ship has been conceded. Service treatment records do not contain evidence of atrial fibrillation, congestive heart failure or pulmonary hypertension during active duty or at discharge. The post-service medical evidence shows treatment for atrial fibrillation, congestive heart failure and pulmonary hypertension many years after discharge. An August 2015 VA respiratory examiner opined that the Veteran’s diagnosed pulmonary hypertension was not related to asbestos exposure in service. The Veteran had a VA cardiac examination also in August 2015, but the examiner did not discuss whether any heart disease was related to asbestos exposure during service. An April 2016 VA examiner opined that the Veteran's ischemic heart disease to include congestive heart failure, pulmonary hypertension, and atrial fibrillation, less likely than not (less than 50 percent) were incurred in or caused by specific asbestos exposure during service since the Veteran had no medical evidence of any asbestos exposure (no pleural plaques in his lung or a diagnosis of asbestosis) and the Veteran's military occupational specialty (MOS) of ship servicemen tailor had minimal asbestos exposure risk, which means it is less likely than not that the Veteran's ischemic heart disease, pulmonary hypertension, or atrial fibrillation developed due to possible asbestos exposure. In a June 2016 statement, the Veteran’s private physician for 25 years noted that the Veteran was exposed to asbestos while serving aboard ship in the Navy and opined that this exposure caused the Veteran to slowly develop ischemic heart disease resulting in complication of myocardial infarctions, cardiomyopathy and congestive heart failure. In support of his opinion, the physician cited to a 2012 medical journal study, which revealed that cardiovascular and ischemic heart disease mortality was significantly higher among British asbestos workers than in the general population, and within the cohort, mortality was associated with indicators of asbestos exposure. According to the physician, the findings provided evidence that occupational exposure to asbestos was associated with cardiovascular disease mortality in that group of workers. The Board notes that the 2012 article referenced by the private physician discusses the effect of asbestos exposure in British asbestos workers, not service members during the time the Veteran was on active duty. Furthermore, the physician did not give any specific information about the Veteran, other than noting that his disorders developed slowly over the years, to show why his in-service asbestos exposure affected his particular development of heart disease. Moreover, the study, while revealing that many of the study subjects who were exposed to asbestos died from heart disease, does not conclude that asbestos exposure caused their heart disease. As such, the Board finds that the April 2016 private physician’s opinion is less probative than the opinions of the VA examiners of record. A March 2017 VA examiner noted that with regard to the Veteran’s conceded asbestos exposure, reports recorded various abnormalities on chest CTs throughout the years, but they were silent for asbestos lung disease of any kind. The examiner opined that while the Veteran’s pleural effusions were likely a result of his in-service asbestos exposure, exposure to asbestos in service and effusions related to asbestos lung disease less likely than not caused the Veteran’s cardiac disease, including coronary artery disease/ischemic heart disease, ischemic cardiomyopathy/heart failure, atrial fibrillation, and pulmonary hypertension. Rather, he found that the commonly occurring cardiac conditions more likely resulted from the usual risk factors, such as age, sex, and hypertension, which were present in this case. In a December 2017 addendum opinion, the same VA examiner noted that the Veteran’s pleural effusions less likely than not permanently worsened his cardiac conditions, both because pleural effusions are more likely to result from these cardiac conditions than to cause or aggravate them, and because their relative contribution to the Veteran’s morbidity was far less than 50 percent. In a May 2018 Brief, the appellant’s representative cited to a medical journal article that discusses the relationship between occupational exposure to asbestos and cardiovascular related disease, in support of the Veteran’s claims. The conclusion was that asbestos exposure significantly increased the risk of cardiovascular-related diseases in exposed workers. The Board notes that this article does not conclude that asbestos exposure causes heart disease. As such, the Board finds that it is not as probative as the VA medical opinions of record. Several VA medical opinions were submitted in December 2019 by a VA physician’s assistant. The examiner opined that there was no relationship between the Veteran’s congestive heart failure, atrial fibrillation and pulmonary hypertension and active duty service, to include asbestos exposure. The examiner noted that while multifactorial, the Veteran’s congestive heart failure, atrial fibrillation and pulmonary hypertension could all better be attributed to his cardiac conditions, to include major risk factors, which include hypertension and dyslipidemia and subsequent development of coronary artery disease (CAD). Furthermore, he noted that any relationship on the basis of asbestos exposure was inadequate and unrelated, given there was no evidence found to support asbestos-related disease. Absent any compelling evidence to support or establish asbestos exposure alone as the etiology of the Veteran’s congestive heart disease, atrial fibrillation or pulmonary hypertension, the examiner concluded they were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner also opined that the Veteran’s congestive heart failure, atrial fibrillation and pulmonary hypertension were less likely than not proximately due to or the result of his service-connected bilateral pleural effusions. The examiner noted that the pleural effusions were more likely the result of the congestive heart failure, rather than the cause. He noted further that there was never any testing to make the determination of an exudative vs. transudative process. Moreover, the examiner noted that records fail to reveal any relationship between the bilateral pleural effusions and the Veteran’s congestive heart failure, and better causes have been well established. The examiner also noted that on the basis of medical records, recent examinations and opinions rendered, the atrial fibrillation had already been established as secondary to the Veteran’s multiple cardiac conditions. He noted further that there was no evidence to support the bilateral pleural effusions as causal of the Veteran’s arrhythmia and pleural effusions was not a generally accepted caused of atrial fibrillation. The examiner concluded that, absent any further evidence to support the Veteran’s pleural effusions as the genesis of his atrial fibrillation on the basis of available evidence and medical concepts, the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. Furthermore, the examiner noted that after review of the records, prior examinations, multiple opinions, and medical concepts, the Veteran's pulmonary hypertension was simply unrelated to his bilateral pleural effusions. He noted further that the Veteran's hypertension was most certainly multifactorial, with the most common etiology being his congestive heart failure. Additionally, he noted that the Veteran’s sleep apnea would also have contributed to his pulmonary hypertension. Furthermore, absent a diagnosed asbestos-related lung disease, he concluded that the pulmonary hypertension was less likely than not proximately due to or the result of the Veteran's service-connected bilateral pleural effusions. Finally, the examiner opined that the Veteran’s congestive heart failure, atrial fibrillation and pulmonary hypertension were not aggravated by his service-connected bilateral pleural effusions. The examiner noted that review of the records, prior examinations and prior medical opinions all failed to reveal any relationship between the bilateral pleural effusions and the Veteran's congestive heart failure, atrial fibrillation or pulmonary hypertension, and the relationship between the congestive heart failure and pleural effusions was most likely inversely related. As such, the examiner concluded that on the basis of records, generally medical concepts and accepted pathophysiology, the claimed congestive heart failure, atrial fibrillation and pulmonary hypertension were less likely than not aggravated beyond their natural progression by the service-connected bilateral pleural effusions. Most recently, a VA opinion by a specialist in pulmonary disease was submitted in January 2020. The VA examiner concluded that the claimed congestive heart failure, atrial fibrillation and pulmonary hypertension less likely than not had their onset in or were etiologically related to the Veteran’s active duty service, to include exposure to asbestos. The examiner also opined that the Veteran’s claimed congestive heart failure, atrial fibrillation and pulmonary hypertension were less likely than not aggravated beyond their natural progression by the service-connected bilateral pleural effusions. The rationale for both opinions was that there was no clinical or radiographic evidence of asbestos lung disease; there was no clinical connection with the Veteran’s cardiac conditions and asbestos exposure; and the noted bilateral pleural effusions were secondary to the cardiac conditions and not pathognomonic of asbestos-related lung disease. The Board notes that the opinion is not perfect, in that the examiner did not discuss whether the Veteran’s claimed congestive heart failure, atrial fibrillation and pulmonary hypertension were caused by the service-connected pleural effusions. However, given the absence of any evidence showing the Veteran’s claimed disabilities are related in any way to his service-connected bilateral pleural effusions, and the other medical opinions of record holding that the disabilities were not caused by the service-connected disability, the Board finds that the January 2020 VA examiner’s opinion is supported, and another examination is not necessary. The Board also notes that neither the November 2019 VA physician’s assistant, nor the January 2020 VA examiner specifically discussed the medical journal article cited by the appellant’s representative in the May 2018 Brief in their opinions. However, the Board has reviewed the article and discussed the findings, as noted above. Furthermore, the November 2019 examiner did discuss the findings of the article, which were discussed by the private physician in his April 2016 letter, and the January 2020 examiner did note that he had reviewed the entire record, including the articles referenced by the appellant’s representative. As such, a remand is not necessary to review these medical journal articles. There is no evidence otherwise linking the current congestive heart failure, atrial fibrillation or pulmonary hypertension to service or a service-connected disability. The Veteran had not specifically reported a continuity of symptomatology beginning in service and there is no other evidence, VA or private, which indicates that the Veteran's congestive heart failure, atrial fibrillation or pulmonary hypertension may be related to his active military service, including exposure to asbestos. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of congestive heart failure, atrial fibrillation or pulmonary hypertension, the Board notes that this passage of time weighs significantly against a finding of direct service connection for these disabilities. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). (Continued on the next page)   The Board acknowledges the appellant’s assertion that the Veteran’s congestive heart failure, atrial fibrillation and pulmonary hypertension were due to events during his active service. The appellant is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability. However, the Board finds that in the present case, the appellant was not competent to provide a nexus between the Veteran’s diagnosed congestive heart failure, atrial fibrillation and pulmonary hypertension and his active service or events therein, as it would require medical expertise to say that the current congestive heart failure, atrial fibrillation and pulmonary hypertension, identified after service, are the result of an in-service disease or injury. The appellant, as a layperson, was not qualified to render an opinion concerning the medical cause of his congestive heart failure, atrial fibrillation or pulmonary hypertension. 38 C.F.R. § 3.159 (a)(1), (2) (2019). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.