Citation Nr: 21068840
Decision Date: 11/15/21	Archive Date: 11/15/21

DOCKET NO. 15-30 160
DATE: November 15, 2021

ORDER

Entitlement to service connection for a lung disability is denied. 

FINDING OF FACT

A lung disability was not manifest in service and is not otherwise attributable to service.

CONCLUSION OF LAW

The criteria for service connection for a lung disability have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the U.S. Navy from August 1969 to August 1973 and from September 1990 to May 1991. The Veteran also served in the U.S. Army and Naval Reserves.

The Veteran appeals the denial of service connection for a lung disability. In support of his claim, the Veteran has asserted three alternating theories of entitlement: (1) that his lung disability resulted from asbestos exposure from his service aboard a ship deployed to the Mediterranean Sea; (2) that his lung disability resulted from his later deployment to Saudi Arabia and Bahrain during Operation Desert Shield/Operation Desert Storm; or, (3) that his lung disability resulted from his service at Camp Lejeune both before boarding ship and again at the time of his separation from service in 1973. 

Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 

For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)).

In general, VA must determine whether military records demonstrate evidence of asbestos exposure during service; whether there was pre-service, post-service, occupational, or other asbestos exposure; and whether there is a relationship between asbestos exposure and the claimed disease. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).

After review of the record, the Board finds against the claim for service connection for a lung disability. To that end, service treatment records are negative for any lung complaints, treatment and/or diagnoses. Rather, the August 1973, October 1986, June 1987, May 1988, July 1989, April 1991, and March 1996 examinations revealed normal findings for the lungs and chest. The Veteran also denied a history of shortness of breath, pain or pressure in chest and chronic cough in August 1973, October 1986, June 1987, May 1988, July 1989, April 1991, June 1994, and March 1996. 

The medical records reveal that the Veteran has been diagnosed with chronic cough and lung nodules. The Board notes, however, that objective evidence of lung problems is shown several decades post service. The Board has reviewed the service examination reports, VA medical records, the VA examinations and private treatment records of file. These records, however, do not include any competent opinion linking the Veteran's current lung disabilities to a period of service or any incident therein. There is no competent evidence or opinion that the Veteran's disabilities are related to his military service and neither the Veteran nor his representative has presented any such opinion.

Rather, the June 2015 VA examiner opined the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner concluded, after a review of medical records and medical literature, that:	

There is less than likely a diagnosis of asbestosis that is or was a result of any event and/or condition that occurred and/or expressed in-service and/or within one year of discharge. The conclusion is primarily based on the OKCVAMC radiologist's interpretation of the Veteran's Chest X-rays which was found to be pulmonary nodules most likely due to prior infections. CT Scans performed at the same facility at least twice, 03/08/2011 and 07/20/2011, did not identify pathology associated with asbestos exposure. The Veteran additional[ly] had minimal probability of exposure to asbestos in service as his military occupation is listed from 1969-1973 as a medical technician and from 1973-1997 as a storekeeper in the Navy Reserves. The records do not support the findings of asbestos related pulmonary disease.

During the July 2020 VA examination, the Veteran reported he would see his primary care provider for long term cough, and that he saw a specialist and was given a pill about 20 years ago. He could not recall what the medication was. He further expressed that he was entered into a paid medical study around 2010 and that during this time he was told he had asbestosis. The Veteran stated he was exposed to asbestos while in the service as a storekeeper. The examiner, however, found no objective evidence of asbestos exposure or asbestosis. The VA examiner opined that the claimed 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 examiner reasoned that:

Review of the claims file shows objective evidence of pulmonary nodules found by CT scan in 2011. Benign pulmonary nodules/granulomas are caused by an infectious fungus (histoplasmosis, coccidioidomycosis, cryptococcosis, or aspergillosis,) which is endemic in many places in the U.S. The claims file does not show a lung condition while in the service. Separation exam is negative for lung disease. The benign nodules seen in 2011 by CT scan are noted 2 decades after separation from the service. It is less likely than not there are lung nodules related to the veteran's service. Nexus cannot be established.

The examiner also found:

Review of the claims file does not show objective evidence of lung nodules while in the service. Veteran was diagnosed with a chronic cough due to postnasal drip in 2004 and was prescribed medication which veteran is non-compliant. The cough is not due to the lung nodules. The veteran states he was paid to participate in a lung study for asbestos exposure and he states he was told he had asbestosis, this is subjective only. The claims file does not show an asbestosis diagnosis. There is no radiological evidence of asbestosis, for example a high resolution CT scan which will show asbestosis patterns on the lungs. Benign pulmonary nodules (granuloma) are caused by an infectious fungus (histoplasmosis, coccidioidomycosis, cryptococcosis, or aspergillosis, which is endemic in many places in the US. There is no evidence to show the veteran was exposed while in the service. It is less likely than not there is a lung condition related to the veteran's service. Nexus cannot be established.

Lastly, the examiner further found:

Review of the claims file does not show evidence of a chronic lung condition or symptoms while in the service.  Claims file shows a chronic cough in 2004 due to postnasal drip, veteran does not take medication for the condition therefore continues to cough. Postnasal drip is not caused by a lung disease and is no related to the lung nodules. Veterans file shows CT scans noted benign nodules, repeat CT scan shows no changes. Benign pulmonary nodules (granuloma) are caused by an infectious fungus (histoplasmosis, coccidioidomycosis, cryptococcosis, or aspergillosis, which is endemic in many places in the US. The nodules are an incidental finding, there is no active disease and is most likely due to an exposure, however there is no evidence this occurred while in the service. Nexus cannot be established.

Another opinion on this matter was obtained in April 2021. The VA examiner also opined that the claimed 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 examiner reasoned that: 

Veteran's lung disability is a disease with a clear and specific etiology and diagnosis. It is less likely than not that the lung disability is related to the exposure event experienced in Southwest Asia. The Veteran has been seen and treated on multiple occasions since separation from service for a cough. On several occasions, he has complained of a productive cough, which has been related to an Upper Respiratory Infection or Bronchitis. The URI and cough were treated and improved. The Veteran has also c/o of an intermittent dry, non-productive cough with an onset in 2002. The cough was diagnosed as secondary to a post-nasal drip. There is no established medical nexus for the Veteran's cough related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The Veteran was incidentally found to have lung nodules in left lower lung lobe on an abdominal/pelvis CT scan in Jan 2011. He had serial CT scans of the chest in 2011 and the impression was that the pulmonary nodules were residual to a previous infection. A chest x-ray obtained for the Respiratory DBQ exam dated 07/07/20 did not reveal any pulmonary nodules. There is no documented follow up or treatment of the pulmonary nodules since 2012, There is no [sic] established medical nexus for the Veteran's pulmonary nodules related to a specific exposure event experienced by the Veteran during service in Southwest Asia.

The examiner further found:

A thorough review of the STRs does not reveal any infectious disease or respiratory condition which could have reasonably resulted in the formation of the lung nodules. The lung nodules in left lower lung lobe were an incidental finding on an abdominal/pelvis CT scan in Jan 2011, approximately 20 years after AD service. He had serial CT scans of the chest in 2011 and the impression was that the pulmonary nodules were residual to a previous infection. A chest x-ray obtained for the Respiratory DBQ exam dated 07/07/20 did not reveal any pulmonary nodules. There is no documented follow up or treatment of the pulmonary nodules since 2012, The Veteran's pulmonary nodules are more likely than not related to a respiratory infection after AD service.

In July 2021, the VA examiner found that the Veteran had a history of respiratory infection (bronchitis) which likely contributed to the development of pulmonary nodules. The examiner stated that the weight of medical evidence does not currently support a causal relationship between CLCW exposure and pulmonary nodules. Based on review of available medical records, the examiner stated that the Veteran has negative family history pertinent to pulmonary nodules. Thus, it is less likely than not that pulmonary nodules are related to CLCW exposure. The examiner further found that the pulmonary nodules are less likely than not caused by or a result of the Veteran's prior exposure to CLCW of 30 days or more between May 1972 and August 1973.

The Board finds that the VA opinions addressing the Veteran's lung disability are persuasive and assigns them greater probative weight than the lay statements of record. The opinions of the VA examiners were rendered by medical professionals with the expertise to opine on the matter at issue in this case. The examiners addressed the Veteran's contentions and based the opinions on a review of the claims folder to include consideration of the in-service history, post service history and the nature of the current disability. In reaching the conclusions rendered, the VA examiners considered claim of asbestos exposure from his service, his deployment to Saudi Arabia and Bahrain during Operation Desert Shield/Operation Desert Storm and his service at Camp Lejeune. 

The VA examiner thoroughly considered the Veteran's claim of in-service asbestos exposure and found that the evidence did not show an asbestosis diagnosis and that there was no radiological evidence of asbestosis. The VA examiner also factored in the Veteran's report of Camp Lejeune Water contamination and found that the weight of medical evidence does not currently support a causal relationship between such exposure and pulmonary nodules. A VA examiner further found that there was no established medical nexus for the Veteran's pulmonary nodules related to a specific exposure event experienced by the Veteran during service in Southwest Asia. In sum, the Veteran's disability was found to be less likely than not due to service. The collective VA opinions are consistent with the historical record and the Board finds no factual inaccuracies. There is no medical opinion to the contrary.

For the reasons detailed above, the Board must find against the Veteran's claim for service connection. In making this decision, the Board notes that the Veteran is competent to report symptoms, and the circumstances surrounding such. Although lay persons are competent to provide opinions on observable lay symptoms or conditions, see Kahuna v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of his lung disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Here, the Board finds that the medical opinions rendered by the VA examiners are persuasive and assigns them greater probative weight than the lay statements of record. 

The Board is mindful that the Veteran reports that his lung problems started in 1970. To the extent that the Veteran alleges that his problems started in service and have continued since that time, the Board finds that this recollection is not consistent with his prior report of history. In this respect, the Veteran continually denied symptoms throughout service from August 1973 to March 1996 and examinations during this time were normal. The Board places greater probative weight to the Veteran's denial of problems during service as these statements were made closer in time to the time period in question and bear the indicia of reliability as they were made in the context of seeking appropriate medical evaluation during service. See Lilly's An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran's current allegation of lung problems since service was recollected many years after service and is not consistent with his prior statements. Thus, an award of benefits based upon continuity of symptomatology under 38 C.F.R. § 3.303 (b) is not warranted. 

The Board is also mindful that during the July 2020 examination the Veteran stated that he was paid to participate in a lung study for asbestos exposure and that he was told he had asbestosis. The Veteran's recollection has some probative value with regard to a potential relationship. See Jandreau, 492 F.3d at 1376-77. However, this recollection has limited probative value as the reasoning and rationale relating to this diagnosis is not known. The probative value of this opinion is significantly less than the opinion of the July 2020 VA examiner who specifically considered what the Veteran recalled and explained why asbestosis was not shown.

The Board acknowledges that the study is not associated with the claims file. The Board notes, however, that in the January 2019 Board remand the RO was instructed to ask the Veteran to identify all outstanding treatment records relevant to his outstanding claims to include his lung disability. In June 2019, the RO sent the Veteran a letter requesting that he complete and return the enclosed VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), and VA Form 21-4142a,General Release for Medical Provider Information to the Department of Veterans Affairs (VA), so that VA could obtain treatment records on his behalf. Although he was requested to do so, the Veteran has not submitted a VA Form 21-4142a. The Veteran has not submitted any documentation regarding this study nor has he provided VA with authorization to obtain the study results. Thus, the Board finds that the duty to assist has been met in this regard. 

Effective August 5, 2021, VA amended it regulations to establish presumptive service connection for three chronic respiratory health conditions, i.e., asthma, rhinitis, sinusitis, in association with exposure to fine particulate matter for those Gulf War Veterans who served in Southwest Asia, Afghanistan, Syria, Djibouti, and Uzbekistan. See 86 Fed. Reg. 42724 (Aug. 5, 2021). The Board notes that the Veteran's cough has not been diagnosed as asthma, rhinitis, or sinusitis. Therefore, the amended regulations do not apply.

Accordingly, the claim is denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107. 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T.S. Willie

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.