Citation Nr: 21063991 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 19-01 645 DATE: October 18, 2021 ORDER Service connection for interstitial lung disease is granted. Service connection for hypoxemia is granted. FINDINGS OF FACT 1. The evidence of record is in relative equipoise as to whether the Veteran's interstitial lung disease was caused by his exposure to silicas dust during his active service. 2. Evidence shows that the Veteran's hypoxemia was caused by his interstitial lung disease. CONCLUSIONS OF LAW 1. The criteria for service connection for interstitial lung disease have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for hypoxemia have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1954 to December 1955. 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, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection can be established on a secondary basis for a disability which is proximately due to, or the result of a service connected disability. 38 C.F.R. § 3.310 (a). The Veteran is seeking service connection for interstitial lung disease and hypoxemia which he believes resulted from in-service exposure to silicas dust. At his Board hearing in July 2021, he testified that during service, he escorted VIPs to the nuclear testing site in Nevada deserts after Atomic Bomb Testing, and that he was exposed to silica dust while walking on bubbled glass (sand melted by the heat of explosions) and breathing down-wind dust from explosions without wearing any protective respirators. He did not contend that his lung disease was caused by exposure to radiation. A memorandum from the Director of VA Environmental Health Services dated July 2017 confirmed the Veteran's participation in Nevada Nuclear Test site in 1955 and his exposure to ionizing radiation. However, the Director determined that the Veteran had a very low dosage of exposure to ionizing radiation during service which was unlikely to cause his lung disease. As the Veteran is not contending that his lung disease was related to exposure to ionizing radiation, the Board will not discuss presumptive service connection based on exposure to ionizing radiation under 38 C.F.R. § 3.309 (d). Of note, the Agency of Original Jurisdiction (AOJ) had made a determination in July 2016 that the Veteran's service treatment records (STRs) are unavailable, that all efforts to obtain the STRs have been exhausted and that further attempts to obtain the records would be fertile. VA treatment records in November 2009 show that the Veteran complained about shortness of breath when exercising and reported that his condition had got worse. While conducting a Pulmonary Function Test (PFT), he had difficulty with forced expiration and almost passed out. The physician advised him to seek pulmonary consultation. VA pulmonary clinic notes in January 2017 indicate that the Veteran had a history of several years of progressive dyspnea on exertion and documented exertional hypoxia, that abnormal PFTs did suggest that underlying lung diseases likely contributed to his symptoms, and that a CT scan revealed very mild subpleural basilar fibrotic changes, and mild central cylindrical bronchiectasis. The VA physician suspected that these findings were related to the Veteran's GERD with chronic microaspiration and his coronary artery disease. The physician indicated that he was going to discuss with the Veteran's private primary care physician and his private cardiologist regarding the cause of lung disease. The Veteran's private primary care physician Dr. Clements diagnosed the Veteran with restrictive lung disease and hypoxemia in December 2016 and issued opinion letters in October 2016 and December 2016 stating that, given the fact that the Veteran had been a life-time non-smoker without other significant exposures, it was likely that the radiation and silica exposure that the Veteran experienced at atomic testing sites had contributed to his restrictive interstitial lung disease which caused his dyspnea and hypoxemia. Private treatment records from Dr. Burke (the Veteran's former cardiologist who is now retired) dated January 2017 show that the Veteran was diagnosed with dyspnea with effort related hypoxia. Dr. Burke noted that the Veteran had arteriosclerotic heart disease (ASHD) with stents, but it was highly doubted that the Veteran's dyspnea/hypoxia was a manifestation of a cardiac dysfunction, since echocardiogram in January 2017 did not corroborate inferior wall motion abnormalities, a cardiac PET scan in April 2015 was normal and there was no clinical events suggesting an interim infarction. The Veteran's current private cardiologist Dr. Walsh issued an opinion letter in August 2020, concurring Dr. Burke's opinion and stating that the Veteran's lung conditions were not in any way related to his cardiac disease. Dr. Walsh explained that the Veteran had previous coronary stents and was presently stable on his current medical regimen, that he had no signs or symptoms of congestive heart failure or significant valvular disease in the past, that previous echocardiographic studies had shown normal ejection fraction in 2015 and 2017, and that a PET perfusion scan in 2015 showed a left ventricular ejection fraction of 66 percent. Private medical records dated July 2018 from the Veteran's pulmonary treating physician Dr. Shilling show disposes of interstitial lung disease (fibrosis) and unspecified dyspnea. A CT scan revealed fibrosis in the slower lobes of the lungs. Dr. Shillings issued an opinion letter in July 2018 stating that the Veteran had developed fibrosis in his lungs, and that this was directly due to his exposure at the atomic testing site during service. Dr. Shilling indicated that there were no other mitigating factors or contributing causes he could identify, and that the lung disease caused severe dyspnea requiring the Veteran to carry oxygen when walking. A VA examination in November 2018 diagnosed the Veteran with asthma, interstitial lung disease and bronchiectasis. The examiner opined that the Veteran's lung disease was less likely than not (less than 50 percent probability) began during or was caused by his service, to include exposure to silica dust from the atomic testing site. The examiner indicated that research found no references to studies to suggest a link between silicosis and trinitite, and that the Veteran's lung disease may be contributed to by his GERD (if he is aspirating, and potentially aerosolizing, gastric contents into his upper airways causing respiratory mucosal irritation) and his coronary artery disease. The examiner also pointed out that the Veteran spent a great deal of time in the back country of Utah, which is dusty and sandy, and that his exposure at the nuclear testing area was significantly less than that experienced by workers who performed sandblasting, mining, rock cutting and other industrial occupations. The examiner also cast doubt on the diagnosis of dyspnea/ hypoxemia as PFTs in September 2018 showed diffusing capacity for carbon monoxide (DLCO) of 85 percent, and that the Veteran walked to the examination clinic without carrying oxygen. The November 2018 VA examination report noted that the Veteran reported that after he separated from service, he went to school, did insurance office work, taught courses on commercial recreation at the University of Utah, did consulting work and wrote books for Utah State Recreation Agency. He reported that there was no post-service hazardous dust or chemical exposures to his knowledge. In a statement received by VA in March 2021, the Veteran stated that he used to work at his father's farm when he was 12 to 14 years old, but he always wore a filtered ruber respirator because of his allergies. He stated that he did not have asthma, he only had allergies, and that he did not regurgitate stomach acids during sleep. The Veteran agreed with his private doctors' opinions on the etiology of his lung disease, pointing out that he had been seen by VA physicians/examiners only for short period of time, while he had been seeing by his private doctors for a combined period of 40 years. The Board finds that the evidence of record is in relative equipoise as to whether the Veteran's lung disease was caused by his exposure to silicas dust at atomic testing site during service. While the VA examiner and physicians did not link the Veteran's lung disease with his in-service exposure of silicas dust, but associated it with other attributing factors such as his heart condition or GERD, etc., the Veteran's private treating physicians reached a different opinion during the course of treatment. The Board finds that the private treating physicians' opinions are equally probative (if not more probative) to the opinions of the VA examiner and VA physicians. Accordingly, service connection for restrictive interstitial lung disease is granted. As to hypoxemia, while the November 2018 VA examiner did not diagnosed the Veteran with dyspnea or hypoxemia, this condition has been documented by both VA and private medical records. As such, the Board finds that the Veteran has a current diagnosis of hypoxemia. Furthermore, as the Veteran's private primary physician and pulmonary physician both opined that hypoxemia was caused by the Veteran's lung disease, and this decision has granted service connection for lung disease, service connection for hypoxemia is also granted on a secondary basis. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, 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.