Citation Nr: 21068679 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 14-00 871 DATE: November 12, 2021 ORDER Service connection for an acquired psychiatric disorder, to include major depressive disorder is granted. Service connection for chronic obstructive pulmonary disease (COPD) is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his acquired psychiatric disorder is etiologically due to his active military service. 2. Resolving reasonable doubt in the Veteran's favor, his COPD is at least as likely as not related to exposure to asbestos in-service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include major depressive disorder, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for COPD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from May 1965 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision. The Board remanded the claims in December 2019 to obtain medical opinions. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for 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. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Acquired Psychiatric Disorder The Veteran asserts that he has an acquired psychiatric disability which was caused or incurred in service. VA medical records show the Veteran has a diagnosis of depression. This diagnosis was confirmed in a February 2021 VA examination. Therefore, the first element of a service connection claim has been met. The February 2021 VA examiner found that it was less likely than not that the Veteran's depressive disorder was related to his service connected lung disability. However, in forming this opinion the examiner found that the Veteran has a long documented history of depression, dating back to his active duty service in Vietnam. Further, a May 2009 VA Mental Health Note states that the Veteran is clearly depressed. Additionally, it was noted that the Veteran stated he experience several traumatic events while in-service. While the psychiatrist was unable to diagnose the Veteran with posttraumatic stress disorder, he did note that the Veteran was clearly depressed. Given the above, the Board finds the preponderance of the evidence to be in favor of finding that the Veteran's acquired psychiatric disability began during his active duty service. The Board acknowledges that there is no indication of a documented psychiatric disability in service. However, the record contains a competent medical opinion which found a positive nexus between the Veteran's current disability and service. The Board finds that this opinion should be afforded significant probative value as the examiner reviewed and considered the evidence of record, conducted a thorough interview with the Veteran, and considered his statements regarding the history, onset, and nature of his psychiatric symptoms, and supported the opinion with a thorough and reasoned medical explanation with reference to reviewed literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that his acquired psychiatric disorder is etiologically related to service and service connection is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). COPD The Veteran contends that his COPD is due to exposure to asbestos during service. For the following reasons the Board agrees. VA medical records show that the Veteran was diagnosed with COPD in May 2009. This diagnosis has been confirmed in several VA examinations. Therefore, the first element of a service connection claim has been met. The second element is met as the Board has previously conceded the Veteran's in-service exposure to asbestos. See December 2019 Board decision. Regarding the third element, nexus, the Veteran has undergone several VA examinations pertaining to various respiratory disabilities. A January 2021 VA examination found that the Veteran the Veteran's COPD was at least as likely as not proximately due to the Veteran's service connected calcified pleural plaques. Specifically, the examiner concluded that the Veteran's history of asbestos exposure during service. This prolonged exposure can cause lung tissue scarring and shortness of breath. Further, the examiner stated that these symptoms can be mild to severe and usually don't appear until years of continued exposure, as in this case. Conversely, the Veteran underwent another VA examination in March 2021 where the examiner ultimately concluded that the Veteran's condition was less likely than not related to the Veteran's service connected condition relying on the fact that the Veteran is a lifelong smoker and that is more likely the cause of the Veteran's COPD. The examiner expounded on this conclusion in a May 2021 addendum opinion stating that the Veteran does not have significant pathology from his asbestos exposure. The Board finds the evidence to be in relative equipoise. If the evidence is supportive or is in relative equipoise, then the veteran prevails. See 38 C.F.R. § 3.102. Accordingly, service connection for COPD is granted. 38 C.F.R. § 3.304. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.