Citation Nr: 21066245 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-24 958 DATE: October 29, 2021 ORDER To the extent that service connection for a chronic respiratory disorder, the May 2021 Board decision is vacated. Service connection for asbestosis is granted. Service connection for a chronic respiratory disorder other than asbestosis is denied. FINDINGS OF FACT 1. The Veteran had active duty from March 1966 to December 1969; he has been in receipt of total disability based on individual unemployability (TDIU) since August 2015. 2. Asbestosis is casually related to service. 3. A chronic respiratory disorder, diagnosed as chronic obstructive pulmonary disease (COPD), asthma, emphysema, pleural plaques, and bronchitis was not shown in service, to include as a result of in-service asbestos and Agent Orange (AO) exposure, is not causally or etiologically related to service, and is not medically associated with a service-connected disability. CONCLUSIONS OF LAW 1. The May 2021 Board decision is vacated. 38 C.F.R. §§ 3.105; 20.904 (2021). 2. Asbestosis was incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2021). 3. A chronic respiratory disorder other than asbestosis was not incurred in service and is not secondary to a service connected disability. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Vacatur An appellate decision may be vacated by the Board at any time upon the request of the appellant or his or her representative, or on the Board's own motion, when there has been a denial of due process. 38 C.F.R. § 20.904. In May 2021, the Board denied service connection for a chronic respiratory disorder, to include asbestosis, on the grounds that it was not incurred in service. In July 2021, the Veteran filed a Motion of Reconsideration on the grounds that he had submitted evidence showing that asbestosis was incurred in service. A review of the record showed that the Veteran submitted a February 2020 VA examination in which the examiner opined that asbestosis was incurred in service. As such, the May 2021 Board decision is vacated, and the Motion is granted. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition to the above regulations, service connection may be granted for a condition diagnosed after military discharge provided evidence establishes that the condition was caused by service. Service connection may be granted on this basis for a disability related to asbestos exposure during service if evidence demonstrates that the veteran was actually exposed in service and that a disease usually associated with such exposure resulted. As an initial matter, the Veteran contends that a chronic respiratory disorder, to include asbestosis, was incurred as a result of AO exposure in Vietnam; however, as a chronic respiratory disorder is not listed under 38 C.F.R. § 3.309(e) as a disorder that is presumed to have been incurred as a result of AO exposure. Therefore, service connection is not warranted on this basis. Further, the Veteran contends that a chronic respiratory disorder was caused or aggravated by service connected posttraumatic stress disorder (PTSD). Therefore, both direct and secondary service connection will be addressed. Turning first to direct service connection, the Veteran was diagnosed with asthma, emphysema, and pleural plaques in 2008, bronchitis in 2011, COPD in 2016, and asbestosis in 2020. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an in-service incurrence, in the February 1966 enlistment examination, the Veteran marked a history of childhood asthma; however, the examiner marked that the Veteran did not have respiratory issues at enlistment. Therefore, a respiratory disorder did not pre-exist service and he was presumed sound at enlistment. Further, in a February 2015 statement, the Veteran contended that he developed a chronic respiratory disorder in service after his ship collided with another and part of it sank. However, service treatment records (STRs) are absent of complaints, diagnoses, or treatment for a respiratory disorder. Specifically, the Veteran sought in-service treatment for burns and a right knee injury but did not report a respiratory disorder or symptoms of a respiratory disorder. Nevertheless, he asserts that he was exposed to asbestos while serving as a machinist's mate and working in the engine room of a ship. As there is no evidence to contradict his statements, in-service asbestos exposure is conceded for purposes of this decision. As to a nexus between asbestosis and service, in a January 2020 examination, the Veteran complained of difficulty breathing with an onset of 10-12 years previously. However, he also stated that the condition began as a result of exposure to asbestos in service. Upon examination, the examiner opined that asbestosis was at least as likely as not incurred in service. The examiner reasoned that a chest x-ray conducted in 2019 showed bilateral pleural plaques compatible with asbestos pleural disease. Further, the clinician explained that the Veteran had probable exposure due to asbestosis during his duties as a machinist's mate. Therefore, the clinician concluded that it was at least as likely as not that asbestosis was incurred in service. This evidence weighs in support of the claim. In addition, in a June 2020 clinical record, the clinician opined that asbestosis was at least as likely as not incurred in service. He reasoned that servicemembers who worked on ships were at risk of asbestos exposure. As the Veteran was a machinist's mate and worked in the engine rooms, the clinician opined that it was "highly probable" that he was exposed to asbestos. This evidence weighs in support of the claim. Based on the above, the medical evidence supports that asbestosis was incurred in service. As to a nexus between a chronic respiratory disorder other than asbestosis and service, in an April 2013 VA examination, the Veteran complained of wheezing and shortness of breath. The examiner opined that a chronic respiratory disorder was less likely than not incurred in service. She reasoned that the Veteran had a history of smoking, which put him at high risk of developing COPD. Further, the examiner acknowledged that if the chest X-ray was abnormal with pleural plaques and calcification, he could have developed COPD as a result of asbestos exposure; however, she noted that his chest X-ray was normal. Therefore, she concluded that it was less likely than not that a chronic respiratory disorder was incurred in service. This evidence weighs against the claim. In addition, in February 2020, a private clinician opined that a respiratory disorder was less likely than not incurred in service. The clinician reasoned that the Veteran had an extensive smoking history which was most likely the cause of COPD. This evidence weighs against the claim. In a September 2020 opinion, the clinician opined that a chronic respiratory disorder was less likely than not incurred in service. He reasoned that STRs were absent of complaints, diagnoses, or treatment for a respiratory disorder and that clinical records did not reveal continuous ongoing medical treatment or aggravation of acute or chronic respiratory condition from time of discharge to present. Further, he noted that the Veteran's 27 year history of smoking was a significant risk factor for developing COPD. This evidence weighs against the claim. The Board has the responsibility of weighing conflicting medical opinions and may place greater weight on one physician's opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. While the June 2020 clinician indicated that he reviewed the claims file, he rendered a general opinion based off the Veteran's military occupational specialty. He did not address the rationales provided in the VA examinations and VA opinions. Moreover, the June 2020 clinician did not address the finding of a normal chest X-ray conducted in 2013 and acknowledged that the Veteran's history of smoking could have played a role in the development of a chronic respiratory disorder. Based on the above, the medical evidence weighs against a finding that a chronic respiratory disorder other than asbestosis was incurred in service. Therefore, the medical evidence does not support the claim of direct service connection. As to secondary service connection between a respiratory disorder other than asbestosis and service connected PTSD, the Veteran has been diagnosed with asthma, emphysema, pleural plaques, bronchitis, and COPD and is service connected for PTSD. Therefore, the first two elements of secondary service connection, a current disorder, and a service connected disability, are met. As to nexus, in a September 2020 VA opinion, the clinician opined that a chronic respiratory disorder was not caused or aggravated by service connected PTSD. He reasoned that PTSD medications did not cause COPD. Rather, the Veteran's 27 year history of smoking was a significant risk factor for developing COPD. There is no contradictory medical opinion. Thus, the medical evidence does not support service connection on a secondary basis. The Board has considered the Veteran's lay statements that a chronic respiratory disorder other than asbestosis began in service and/or is related to a service connected disability. He is competent to report symptoms because this requires only personal knowledge, as it comes to him through his senses; however, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Therefore, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, 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.