Citation Nr: 21002938 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 13-25 320 DATE: January 19, 2021 ORDER Entitlement to service connection for a respiratory condition, to include as secondary to exposure to herbicides or asbestos, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s respiratory condition began during active service or is otherwise related to an in-service event, injury, or disease, to include as secondary to exposure to herbicides or asbestos. CONCLUSION OF LAW The criteria for an entitlement to service connection for a respiratory condition, to include as secondary to exposure to herbicides or asbestos, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1965 to December 1968. The Veteran testified before the undersigned Veterans Law Judge during a July 2017 Board hearing. A transcript has been associated with the claims file. Having review the records, the Board finds there has been substantial compliance with the previous Board remand, as an adequate VA examination/medical opinion has been obtained. Stegall v. West, 11 Vet. App. 268 (1998). Initially, as briefly addressed in the previous Board remand, while the regional office originally adjudicated a claim for a throat condition, as stated during his July 2017 Board hearing, the Veteran really meant a respiratory condition in general. Therefore, the Board has recharacterized the claim as entitlement to service connection for a respiratory condition, to include as secondary to exposure to herbicides or asbestos. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist or with the conduct of his Board hearing. 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). Thus, the Board need not discuss any potential issues in this regard. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a present 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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Recently, the RO conceded the Veteran’s herbicide exposure based on his service within 12-nautical miles of the Vietnam coast (as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23) for purposes of determining whether the Veteran had “service in the Republic of Vietnam” for purposes of 38 U.S.C. § 1116(f). See May 2020 VA Memorandum. However, the Board finds that a causal relationship or nexus cannot be presumed based on the Veteran’s presumed in-service herbicide (Agent Orange) exposure because none of the Veteran’s respiratory conditions is listed as a disease presumptively related to herbicide agent exposure (none of the diagnosed conditions pertain to respiratory cancers). 38 C.F.R. § 3.309(e). The condition may still be directly related to service per Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran contends that his respiratory condition is due to exposure to asbestos and/or herbicides while on active duty service in Vietnam. The Veteran testified that while he worked as a welder at a shipyard post-service, his work did not expose him to any asbestos as he only worked on the brand new ships. It is not in question that the Veteran has a current respiratory condition, as he has been diagnosed with various conditions, to include chronic obstructive pulmonary disease (COPD), pleural effusion, and restrictive lung disease. The Veteran’s service treatment records document a single complaint of sore throat in February 1965, but he was not provided with any diagnosis at that time. His records are otherwise silent for any complaints, treatments, or diagnosis relating to any respiratory conditions, and during his December 1968 separation examination, he was found to have all clinically normal conditions. It appears that the Veteran first sought treatment for his respiratory condition in the 1990s, almost 20 years after separating from service, during which time he reported onset of chest pain two weeks earlier. His 1990 x-ray reports also show clear chest/lung (see, i.e., February 1999 x-ray, June 1990s x-ray, October 1990 x-ray findings)—all of which tend to weigh heavily against a finding that he had any continuous respiratory symptoms since service. Moreover, it appears that it was decades later after separating from service (in early 2000s/2010s) that the Veteran was first diagnosed with various respiratory conditions (see October 2020 VA examination, diagnosed with COPD in 2006; see December 2011 VA treatment records, showing diagnosis of pleural effusion). Turning to the medical etiology opinion of record, although the Veteran first underwent a VA examination in 2018, the Board initially acknowledges that the examiner, in part, attributed the Veteran’s current respiratory condition to his post-service welder job. However, in light of the Veteran’s statement made during the Board hearing that his post-service welder job did not expose him to any asbestos, the Board will disregard and not assign any probative value to that portion of the opinion. However, at least for the portion of the opinion in which the examiner attributed his condition to another alternative factor – his long history of excessive smoking – this is an accurate factual history as it is substantiated by VA treatment records (see May 1999 VA treatment records noting that he began smoking at the age of 10; see also May 2015 VA treatment records noting that the Veteran gave up smoking eight years ago). Therefore, the Board assigns high probative value to at least that portion of the opinion, as such finding is based on the concrete facts and after review of all pertinent records, to include his post-service treatment records. In October 2020, another VA examiner furnished a negative nexus opinion, even after acknowledging the Veteran’s contentions that he was extensively exposed to asbestos in service. In doing so, the examiner first stated that the Veteran’s post-service treatment records do not show any evidence of asbestos or herbicide related respiratory disabilities, pointing out that if significant asbestos exposure did occur as the Veteran suggests, then a diagnosis of asbestosis can be made if x-rays show either pleural plaques or mesothelioma—and noted that the Veteran’s 2011 and 2018 x-rays failed to show evidence of asbestosis. In other words, even accepting, for the purposes of argument, that he had asbestos exposure, there are no clinical manifestations of asbestos-related lung diseases, and the examiner concluded, “it is not possible that asbestos exposure during service caused his current COPD condition or pleural effusion condition.” The examiner also indicated that the current medical literature only shows a mere statistical association between agent orange exposure and COPD, rather than an actual causal/clinical relationship between the two, also emphasizing that there is no current study that definitely shows such medical nexus. It was further noted that it is not currently accepted in the general medical community that Agent Orange can cause COPD. The examiner provided alternative etiologies for the Veteran’s diagnosed conditions—ie. tobacco smoking, hypertension—and indicated that the Veteran has an extensive tobacco smoking history and that he was noted to potentially have pulmonary hypertension. The Board gives high probative value to this opinion, considering that this was provided after extensive review of all pertinent records, to include his lay statements/reports and post-service treatment records, substantiated by concrete factual findings, and the examiner provided alternative etiology. The Board is cognizant of the two private positive medical nexus opinions of record: May 2013 private nexus opinion and February 2015 disability benefits questionnaire (DBQ) opinion. First, with regards to the May 2013 opinion (in which the Veteran’s private physician opined that the Veteran’s condition is as likely as not related to his asbestos exposure in service in light of his laundry duties in service that led to his exposure to asbestos fibers and breathing into his lungs), the Board points out that this opinion seems merely speculative. It is not clear whether this private physician reviewed all pertinent records, to include the Veteran’s service treatment records and post-service treatment records; moreover, besides merely noting that the Veteran’s duty in service exposed him to asbestos, the examiner has failed to provide any concrete factual findings that corroborate such nexus between his in-service asbestos exposure and his current respiratory condition. He did not report any diagnostic test results showed evidence of asbestos exposure. For these reasons, the Board assigns only a minimal probative value to this opinion. With regards to the February 2015 DBQ (in which the examiner opined that the Veteran’s respiratory condition was most likely attributable to his Agent Orange and asbestos exposure during active duty), the Board assigns no probative value, as the examiner failed to provide any rationale at all for the opinion. While the Board acknowledges that the Veteran believes his respiratory condition is related to his asbestos/herbicide exposure in service, the Veteran does not state, and the record does not reflect, that he has any medical education, experience, or training, nor has he offered any basis in common lay knowledge to support his opinion. While he is competent to report any symptoms, he is not competent to provide a medical opinion linking his respiratory condition with service as such requires complex medical knowledge and training that are generally beyond the competency of a lay witness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In summary, the preponderance of the evidence is against finding that the Veteran’s respiratory condition was caused by his in-service agent orange exposure or his alleged in-service asbestos exposure. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the Veteran’s claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.