Citation Nr: 21063918 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 20-25 635 DATE: October 18, 2021 ORDER Entitlement to service connection for a respiratory disability due to asbestos exposure is denied. FINDING OF FACT The Veteran's respiratory disability did not originate in service or until years thereafter and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to April 1971. He died in April 2021. The Appellant is the surviving spouse who has been substituted following the Veteran's death. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant appeared for a hearing before the undersigned Veterans Law Judge in May 2021. The hearing transcript is associated with the claims file. The Board notes that this matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). The appeal was last remanded by the Board in July 2021 for additional development. A review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a respiratory disability due to asbestos exposure The Appellant contends that the Veteran had a respiratory disability due to his exposure to asbestos during active-duty service. Service treatment records are negative for any complaints, treatment, or diagnosis of a respiratory disability except for a June 1969 report of medical examination which noted that evaluation of the Veteran's lungs and chest was abnormal due to wheezing in both bases. A subsequent April 1971 separation examination noted that evaluation of the Veteran's lungs and chest was normal. February 2011, August 2011, March 2012, and June 2012 VA treatment records note that the Veteran had no difficulties breathing. The June 2012 VA treatment record also noted, however, that the Veteran experienced shortness of breath when performing yardwork and that he was treated by a pulmonologist who was working him up for asthma. A January 2013 VA treatment record notes that one of the Veteran's prescription medications caused issues with his breathing. An April 2013 private treatment record notes that the Veteran had atrial fibrillation and thyroid nodule. March 2013, March 2014, and July 2015 VA treatment records again document that the Veteran had no difficulties breathing. A November 2016 VA treatment record notes that the Veteran had pain in the right lower chest with deep breathes approximately 2 to 3 times in the past several years. The record also notes that the Veteran quit smoking in 1979. Another November 2016 VA treatment record notes that the Veteran had a hybrid ablation and multiple ablations for atrial fibrillation and reported that his breathing had become less deep since the ablations. A March 2017 VA treatment record documented the Veteran's reports of chest pain with shortness of breath and that he was told he had heart blockage. A June 2017 private treatment record notes that the Veteran complained of shortness of breath with exertion, wheezing, and chest tightness. In a January 2018 statement in support of his claim for a psychiatric disability, the Veteran described a January 1969 incident during which a bomb exploded onboard the USS Enterprise. A January 2018 private treatment record documented that the Veteran had COPD, moderate persistent asthma, allergic rhinitis, OSA, pulmonary granuloma, abnormal pulmonary function test, arteriolosclerotic heart disease, and asbestos exposure with no protection during military service over 20 years ago. The record also documented that the Veteran smoked a pack of cigarettes per day until he quit in 1979 and that he had a family history of lung or respiratory disease. The Veteran complained of shortness of breath with exertion and wheezing. A February 2018 VA treatment record notes the Veteran had a pulmonary granuloma. In a May 2018 statement in support of his claim, the Veteran stated that he was exposed to asbestos during a fire aboard the USS Enterprise. He explained that the fire gutted the engine room which he claimed proved he was exposed to asbestos. In addition, the Veteran provided a timeline of his in-service exposures to asbestos. He explained that he served onboard the USS Enterprise from November 1967 to April 1971 during which time a fire explosion occurred in January 1969, repairs following the fire took place from January 1969 to March 1969, and replacement of equipment, steam leaks, and engine room work happened between August 1969 and January 1971. In addition, the Veteran also reported serving onboard the USS North Hampton from February 1966 to September 1966 where he was also alleged exposure to asbestos. The Veteran reported that post-service he worked in office jobs or classroom teaching jobs. He also reported that most of the people he served with had died from asbestosis. The Veteran was afforded an in-person VA examination in July 2018. The VA examiner noted diagnoses of asthma, chronic obstructive pulmonary disease, and obstructive sleep apnea. The Veteran reported that he had extensive exposure to asbestos while serving aboard the USS Enterprise from November 1967 to April 1971. He stated that he was a machinist/mechanic and was involved with handling pumps, valves, and pipes lined with asbestos material and was not issued any protective respiratory equipment. The Veteran also reported a fire had occurred onboard the USS Enterprise that distributed smoke and dust throughout the berthing compartments. The Veteran further reported that the USS Enterprise underwent extensive retrofitting in 1969 which required him to handle and be around asbestos covered pipes again without any protective equipment. The VA examiner noted that the Veteran developed asthma, chronic obstructive pulmonary disease (COPD), and obstructive sleep apnea (OSA) in 2010 and also developed atrial fibrillation and a cardiomyopathy with an ejection fraction of 35 percent. The Veteran used inhalation bronchodilator therapy and inhalational anti-inflammatory medication for those conditions. Other pertinent findings included that the Veteran was obese and had atrial fibrillation and cardiomyopathy with reduced left ventricle function ejection from of 35 percent. The VA examiner determined that the Veteran's respiratory disabilities were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The VA acknowledged that the Veteran had documented asbestos exposure during active-duty service from 1967 to 1971 but determined that the Veteran did not have asbestosis nor x-ray evidence of asbestosis. The Veteran's pulmonary function test results were not typically compatible with asbestosis and asbestosis. Moreover, the VA examiner determined that asthma and COPD were not conditions caused by asbestos exposure nor was the Veteran's atrial fibrillation, cardiomyopathy, or OSA which contributed to his symptoms of shortness of breath and decreased energy. The Appellant was afforded a hearing before the undersigned Veterans Law Judge in May 2021. The Appellant and her representative testified that during service the Veteran worked primarily in an engine room as a mechanic working around asbestos plumbing that he was in charge of maintaining. The representative further asserted that at one point the Veteran was in charge of dismantling the pipes and retrofitting the ship for nuclear capabilities. The Veteran was not provided respiratory protection. The Veteran's wife stated that the Veteran was first diagnosed with a respiratory condition right after they married in approximately 1969. She also asserted that the Veteran was diagnosed with a pulmonary granuloma during his August 2017 VA examination. The Veteran's wife testified that the Veteran had difficulties breathing most of his adult life. She stated that the Veteran always complained of difficulty breathing their entire marriage and that he had told her years prior that he had been covered in dust or fibers when working in the engine room during service. When asked whether her husband had been a smoker, the Appellant respond that the Veteran had been years ago but quit in 1979. An addendum VA medical opinion was obtained in August 2021 based upon review of the Veteran's medical records. The VA examiner considered the Veteran's pulmonary nodules and granulomas and again determined that the Veteran's respiratory condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner cited to medical literature and explained that previous asbestos exposure was not an established primary etiology of nodules or granulomas. The VA examiner further stated that nodules and granulomas were typically asymptomatic and that his respiratory symptoms were more likely secondary to his COPD or asthma which were well documented to cause his reported symptoms. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). The Board finds that entitlement to service connection for a respiratory disability is not warranted. The Board acknowledges that the Veteran had several respiratory disabilities including asthma, COPD, OSA, pulmonary granulomas, and pulmonary nodules. The Veteran also had other disabilities, including atrial fibrillation, that impacted his breathing. The Board also acknowledges that the Veteran's lay reports of exposure to asbestos onboard the USS Enterprise are consistent with the facts and circumstances surrounding his active-duty service as a mechanic in the engine room onboard the USS Enterprise. The question for the Board is whether any of the Veteran's respiratory disabilities are etiologically related to his in-service exposure to asbestos. At the outset, the Board acknowledges the isolated June 1969 in-service documentation of wheezing in both lungs and notes that this complaint was made after the January 1969 fire onboard the USS Enterprise. However, the Board notes that no other service treatment records document any complaints, treatment, or diagnosis of a respiratory disability and that the Veteran's subsequent April 1971 separation examination noted that evaluation of the Veteran's lungs and chest was normal indicating that any respiratory disability had resolved. Moreover, over 40 years passed before the first, post-service documentation of respiratory symptoms in June 2012. With regard to the years-long evidentiary gap in this case between the Veteran's separation from active-duty service in April 1971 and the earliest manifestations of a respiratory in June 2012, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Next, the Board emphasizes that the January 2018 and August 2021 VA opinions are both against the Veteran's claim and that no positive nexus opinion has been affiliated with the Veteran's record. The Board affords great probative value to the January 2018 and August 2021 VA opinions because they are based on review of the Veteran's medical records, supported by medical literature, and provided adequate rationales in support in the opinions made by the VA examiners. The Board also emphasizes that the Veteran had other risk factors for a respiratory disability including a history of smoking a pack of cigarettes per day until 1979, a family history of respiratory or lung disease, taking medication that impacted his breathing, and a personal medical history of being obese. See, January 2013 VA treatment record, November 2016 VA treatment record, January 2018 private treatment record, July 2018 VA examiner's report, and May 2021 hearing transcript. Additionally, November 2016 and March 2017 VA treatment records note that the Veteran had breathing difficulties due to heart problems. To the extent that the Veteran's breathing difficulties may have been secondary to a heart disability, the Board notes that the Veteran was not awarded service connection for any heart disability and therefore secondary service connection is not for application. (Continued on the next page) In sum, the record does not contain probative lay or medical evidence sufficient to establish a medical nexus between any of the Veteran's respiratory disabilities and his military service. The preponderance of the evidence is against the claim. Therefore, the Appellant's claim is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.