Citation Nr: 21066001 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 13-07 349 DATE: October 28, 2021 ORDER Entitlement to service connection for a respiratory disability, to include as due to asbestos exposure, is denied. FINDINGS OF FACT 1. The Veteran was likely exposed to asbestos during his active duty service. 2. The competent and probative evidence of record does not demonstrate that the Veteran's respiratory disability began during, or is etiologically related to, his active duty service, to include as due to asbestos exposure. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, to include as due to asbestos exposure, has not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from December 1965 until his honorable discharge in September 1967, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal, the Vietnam Campaign Medal, and the Combat Infantryman Badge. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This matter is before the Board on appeal from a January 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2017, April 2018, and July 2020. In July 2020, the Board remanded the issues of entitlement to service connection for a skin disorder, claimed as body rashes and fungus, and entitlement to service connection for a respiratory disability (lung disorder) to the Agency of Original Jurisdiction (AOJ) for further development. A subsequent March 2021 rating decision granted service connection for scalp folliculitis and seborrheic dermatitis, claimed as body rash and foot fungus, effective March 11, 2010. Therefore, this issue is no longer on appeal. The issue of entitlement to service connection for a respiratory disability is once again before the Board. The Board finds there has been substantial compliance with the July 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In October 2016, the Veteran and a witness, the Veteran's spouse, presented sworn testimony during a hearing before a Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This hearing was before a now-retired Veterans Law Judge. In an August 2021 VA letter, the Veteran was provided the opportunity to request another optional Board hearing. In response, the Veteran noted he did not wish to appear at another Board hearing. See September 2021 Correspondence. Therefore, the Board will proceed. Legal Criteria for Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also 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). In this case, a respiratory disability, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) therefore the presumptive service connection provision based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, 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 evidence favorable to the Veteran. 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 of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Entitlement to service connection for a respiratory disability, to include as due to asbestos exposure. The Veteran contends his respiratory disability is related to his military service, to include as due to asbestos exposure. Specifically, he described being exposed to asbestos while residing in World War II era barracks, as well as during his service onboard the USNS Gordon. For the reasons explained below, the Board finds entitlement to service connection for a respiratory disability is not warranted. As an initial matter, the Board finds the evidence of record demonstrates the Veteran has been diagnosed with a respiratory disability. In October 2005, the Veteran underwent a CT of the abdomen. Dr. A.B.'s impression of this CT included "mild areas of bilateral lung base scarring." A December 2008 VA radiograph of the abdomen demonstrated mild emphysematous changes in the lungs. A May 2019 VA CT scan demonstrated mild emphysema. This evidence demonstrates the first element of service connection has been satisfied. Regarding in-service incurrence, the Board finds there was an in-service incurrence. As noted above, the Veteran alleges his respiratory disability is due to asbestos exposure while residing in World War II era barracks, as well as his service onboard the USNS Gordon, a World War II era Navy transport vessel. See October 2016 Hearing Transcript. The Veteran's military personnel records confirm he attended Army Basic Combat Training (BCT) at Fort Knox, Kentucky. After completing BCT, the Veteran attended Advanced Individual Training (AIT) at Fort Lewis, Washington. Additionally, the Veteran served in the Republic of Vietnam from September 1966 to September 1967; the Veteran was transported to the Republic of Vietnam onboard the USNS Gordon. Upon completion of his tour in the Republic of Vietnam, he returned to Fort Lewis, where he was released from active duty and transferred to the Army Reserve. Given the Veteran's residence in World War II era barracks, and service onboard the USNS Gordon, the Board finds the Veteran's statements regarding in-service asbestos exposure to be competent and credible. Washington v. Nicholson, 19 Vet. App. 362 (2005); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Resolving all reasonable doubt in the Veteran's favor, the Board finds the second element for service connection is met. While the evidence shows a diagnosis of a respiratory disability and an in-service incurrence, the evidence does not show a nexus between the two. At the October 2016 hearing, the Veteran testified that he experienced wheezing, tiredness, and shortness of breath in service. The Veteran reported post-service treatment for his lung problems. He stated, in approximately 2000, his physician diagnosed him with asbestosis. In its July 2017 decision, the Board noted October 2005 imaging revealed mild areas of bilateral lung base scarring, imaging in August 2009 found clear lungs with no pleural effusions, and a private treatment note from April 2011 indicated the Veteran suffered from clinical shortness of breath. The Board remanded the claim for a VA examination, to evaluate any diagnosed lung condition and whether it is related to his period of active service. The Veteran was afforded a Logistics Health Incorporated (LHI) Respiratory Conditions examination in October 2017. During the examination, the Veteran reported exposure to Agent Orange and asbestos during his military service. He reported during periods of over exhaustion, he feels "winded" and "out of breath"; he also stated his "bronchitis comes and goes." The LHI examiner provided a negative nexus opinion, stating the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated, [Veteran's] symptoms are subjective; the objective exam is normal; and there is no objective evidence of a chronic condition. In a subsequent April 2018 decision, the Board found the October 2017 LHI examiner did not fully address the July 2017 remand instructions, specifically the 2005 findings of bilateral lung base scarring. As such, the Veteran's claim was remanded for additional VA examination and etiological opinion. The Veteran was afforded a VA Respiratory Conditions examination in April 2019. During the examination, the Veteran denied any history of chronic lung problems. The examiner noted a July 2010 chest x-ray which revealed "no evidence of active infiltrate, failure, pneumothorax, or effusion. Heart, hila, mediastinum, and diaphragm appears normal." Additionally, in May 2019 the Veteran underwent high resolution computed tomography (HRCT), to evaluate interstitial lung disease, such as asbestosis, which demonstrated "mild emphysema." See April 2019 examination report. The examiner provided a negative nexus opinion, stating per the current CT scan of the lungs there is no scarring of the lungs, no findings suggestive of asbestosis. The examiner noted the October 2005 imaging finding of mild areas of bilateral lung base scarring has resolved and is not evident on the current CT scan of the thorax. The examiner concluded, as per the review of the medical records, examination and history obtained from the Veteran, there is no diagnosis of any lung disorder. In July 2020, the Board found the May 2019 examination report inadequate because despite the finding of mild emphysema, the examiner found that the Veteran did not have a diagnosed lung disability. As such, the Veteran's claim was remanded for addendum opinion. In accordance with the July 2020 remand, the AOJ obtained an addendum from the April 2019 VA examiner in October 2020. In providing a negative nexus opinion, the examiner stated the Veteran's CT scan finding of mild emphysema (not a feature of CT scan finding of asbestos related lung disease) is not related to the asbestos exposure in service. As rationale, the examiner included citation to relevant medical literature. The Board affords the October 2020 opinion great probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additional post-service treatment records are silent for any evidence that would show the Veteran to have a diagnosis of asbestosis, or to show that any diagnosed respiratory disability is related to service. The Board recognizes the Veteran has indicated that his physician diagnosed a respiratory disability. Specifically, at his October 2016 hearing before the Board, the Veteran testified that his doctor told him he had a diagnosis of asbestosis. However, medical records associated with the claims file are silent for a diagnosis of asbestosis. The Board finds the October 2017 LHI and April 2019 VA examination reports, that the Veteran does not have a diagnosis of asbestosis, to be more probative than the Veteran's statements that this condition has been diagnosed. The Board has considered the lay statements of the Veteran asserting that his respiratory disability could be attributable to his in-service exposure to asbestos. Although sympathetic to the Veteran, the Board notes he does not possess the medical expertise to opine as to the etiology of his respiratory disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the medical records do not contain a positive nexus opinion between the Veteran's service, including as due to his asbestos exposure. Therefore, the assertions of the Veteran are afforded less probative weight than the opinion of the October 2017 LHI examiner and April 2019 VA examiner. In conclusion, because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. The Board is appreciative of the Veteran's faithful and honorable service to our country. However, given the record before it, the Board finds the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Therefore, the Board concludes service connection for a respiratory disability, to include as due to asbestos exposure, is not warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.