Citation Nr: 21005227 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 15-21 569 DATE: January 29, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include asbestosis, chronic obstructive pulmonary disease (COPD), bronchitis, and emphysema is denied. FINDINGS OF FACT 1. The Veteran does not have asbestosis. 2. The Veteran’s diagnosis of COPD with emphysema is not related to asbestos exposure or to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disorder, to include asbestosis, chronic obstructive pulmonary disease (COPD), bronchitis, and emphysema have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. § § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1960 to May 1962, to include service in Korea from February 13, 1961 to April 21, 1962. In August 2018, the Veteran testified via video conference before the undersigned. The issue was remanded in November 2018 and June 2020 for further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.303 (a). To establish a right to compensation for a present disability, a veteran must show: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Entitlement to service connection for a respiratory disorder, to include asbestosis, chronic obstructive pulmonary disease (COPD), bronchitis, and emphysema The Veteran contends that he was exposed to asbestos during his military service. He stated his military occupational specialty was a track mechanic but during the last six or seven months of service he drove the jeep for his troop commander. Specifically, he testified that he traveled to and from Korea aboard the USS General J. C. Breckinridge (AP-176) and USNS General Hugh J. Gaffney (T-AP-121) naval ships and during the journey he slept in the bottom of the ship where the furnace and engines were. In the November 2018 Board remand the RO was instructed to attempt to determine whether there was any objective evidence that the Veteran was exposed to asbestos during military service. A March 2020 DPRIS response from the Joint Services Records Research Center (JSRRC) reflects that the histories do not document the use, storage, spraying or transporting of Agent Orange or tactical herbicides. There was no mention of whether there was evidence the Veteran was exposed to asbestos. Despite this, the Board finds that other than the Veteran’s belief that he may have been exposed to asbestos traveling to and from Korea, there is no credible evidence that he was. As noted above, the Veteran was a track mechanic, and for a short period of time a driver for his commander. It is unclear if, or how much, exposure to asbestos the Veteran had however, mere exposure to a potentially harmful agent is insufficient to be eligible for VA disability benefits. The question is whether disabling harm ensued as a result of any such asbestos exposure. The medical evidence must show not only a currently diagnosed disability, but also a nexus, that is a causal connection, between this current disability and the exposure to asbestos in service. The Veteran’s service treatment records (STRs) have been reviewed. The Veteran’s March 1960 entrance examination does not show any abnormalities. The Veteran self-reported on the March 1960 entrance Report of Medical History that he had, then or previously, pain or pressure in the chest. There are no treatment notes that show complaints or a diagnosis of any respiratory condition. A March 1962 separation examination reflects a normal clinical evaluation with no defects or diagnoses. Lastly, the separation Report of Medical History notes pain or pressure in the chest. An August 2007 private treatment note from Thomas Memorial Hospital shows the Veteran reported occasional shortness of breath with exertion, a history of bronchitis in 2006, and a history of tobacco abuse. The Veteran denied having asthma, wheeze, chest pain, or palpitations. VA treatment records reflect an August 2012 CT scan showed no evidence of pleural calcifications to suggest asbestos exposure. A July 2013 chest x-ray showed chronic changes without acute cardiopulmonary process. A February 2016 CT scan showed bilateral emphysematous changes with bilateral lower lobe scarring/atelectasis but there was no gross evidence of pleural calcifications to suggest asbestosis exposure. In February 2016, the Veteran was afforded a VA respiratory conditions examination. During that exam, the Veteran reported a history of having been exposed to asbestos while aboard ships that transported him to and from Korea, as well as a 50-year history of smoking one (1) to two (2) packs of cigarettes per day. The examiner opined that it was less likely than not the Veteran’s diagnosed severe COPD with emphysema was the result of asbestos exposure but was instead secondary to a history of heavy smoking. (See February 2016 VA respiratory Disability Benefits Questionnaire (DBQ) at page (pg.) 11)). The Board found that the February 2016 VA examiner’s opinion to be of reduced probative value in evaluating the claim because it was not supported with any rationale. See Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). An August 2020 VA respiratory conditions DBQ showed a diagnosis of COPD in approximately 2009. The examiner stated the Veteran’s diagnosis of COPD by definition includes the subtypes of chronic bronchitis and emphysema. The examiner also stated the Veteran does not have evidence of a diagnosis of asbestosis. The examiner opined that it was less likely than not the Veteran’s COPD with emphysema was incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that while the Veteran was exposed to asbestos during active duty service, he does not have a diagnosis of asbestosis as confirmed by multiple imaging studies in the claim file, to include CT scan of 2012. The examiner went on to state that the most common cause of COPD is smoking tobacco and the Veteran has a 50 year history of smoking. Lastly, the examiner stated COPD is not caused by asbestos exposure or pesticide exposure. The Board acknowledges the Veteran's own statements contending that his respiratory disorder is related to his claimed asbestos exposure. The Veteran is competent to report his symptoms, if any, of breathing problems and their onset, but not etiology. See Layno v. Brown, 6 Vet. App. 465 (1994). In summary, the evidence is against a finding of asbestos-related disease of any kind. While the Veteran, on his entrance and separation Reports of Medical History, indicated that he had, then or previously, pain or pressure in the chest there is no evidence of such in his STRs. Furthermore, even if the Veteran had some exposure to asbestos during service, the medical evidence shows there is no evidence of pleural calcifications to suggest asbestos exposure and the VA examiner stated that the Veteran’s diagnosis of COPD is not caused by asbestos exposure or pesticide exposure. Accordingly, the preponderance of the evidence is against the claim for service connection for a respiratory disorder, to include asbestosis, COPD, bronchitis, and emphysema, the benefit of the doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, Associate 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.