Citation Nr: 21069324 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-28 503 DATE: November 18, 2021 ORDER Entitlement to service connection for a respiratory condition, including chronic obstructive pulmonary disease (COPD), bronchitis, and asthma, to include as due to exposure to asbestos, is denied. FINDING OF FACT The Veteran's diagnosed respiratory conditions did not originate in service, within a year of service, and are not otherwise etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a respiratory condition have not been met. 38 U.S.C. §§ 1131, 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 from August 1961 to July 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision by a Department of Veterans Affairs Regional Office (RO). In December 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The Board remanded the claim in April 2020 for additional development. In May 2021, the Board remanded this case again. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Respiratory Condition The Veteran seeks entitlement to service connection for a respiratory condition. Specifically, he asserts developing a respiratory condition due to in-service asbestos exposure. See February 2018 Claim and June 2018 Statement in Support of Claim. The evidence of record includes the Veteran's August 1961 enlistment examination noting normal lungs and a negative chest X-ray. He reported having had tuberculosis between the ages of 8 and 9. He currently denied any asthma, shortness of breath or frequent trouble sleeping. In July 1962, he requested a chest X-ray. He again reported having tuberculosis when he was 8 years old and that his family physician had advised him to get an X-ray study every 6 months. No current active chest pathology was found. A January 1963 STR shows the Veteran was seen related to a persistent cough. The clinician noted a history of tuberculosis at age 7. A chest X-ray study revealed a diagnosis of bronchitis and he was treated with medication. In February 1963, his cough was noted as improved. However, another February 1963 STR noted a re-occurrence of paroxysmal coughing productive of phlegm. The Veteran reported smoking a half pack of cigarettes per day. He was restarted on medication. His May 1963 separation examination noted normal lungs and a negative chest X-ray. He currently denied any asthma or shortness of breath. Post-service evidence shows the Veteran established care at his VA medical center in October 2002. An initial outpatient visit noted a list of medical issues including a 2 to 3 year history of COPD and emphysema. The record also noted a 25 year pack and a half smoking history, tuberculosis at age 8, and that the Veteran had known exposure to asbestos from construction. An October 2003 VA medical record noted a recurrent bronchitic cough the past 3 weeks and he was assessed with acute bronchitis. In February 2004, he was assessed with bronchitis and a pulmonary function test (PFT) revealed a mild restrictive process. An August 2004 VA medical record noted a 1990 diagnosis of COPD and emphysema. Additionally, an August 2004 medical record noted questionable asbestos exposure. See VA Medical Records Received December 2019. A March 2005 VA medical record noted COPD that was well controlled on medication. The record also noted "COPD/Emphysema/w bronchospasms component" with 1990 listed as the date of diagnosis. In addition, the record noted questionable asbestos exposure. See VA Medical Records Received March 2005. The Veteran was diagnosed with an upper respiratory infection and bronchitis in September 2006. In September 2006, he was assessed with COPD and bronchitis. A chest X-ray was noted to show COPD changes with no infiltrate. A November 2007 medical record noted an assessment for "COPD/Ex-Smoker." A January 2013 VA medical record noted a past medical history for COPD and asthma and noted that the Veteran quit smoking at age 49 after a 35 pack a year smoking history. See VA Medical Records Received December 2019. A February 2014 chest radiological study revealed pulmonary vascularity within normal limits with no evidence of pulmonary infiltrate. A 4 mm nodular density projecting over the posterior right fifth rib and medial right clavicle was noted which was not seen with certainty on the prior examination and was noted to possibly represent confluence of vascular and rib shadows. No acute cardiopulmonary abnormality was found. Another February 2014 chest radiological study revealed no parenchymal abnormality in the right upper lobe. The previously described findings were felt to represent summation shadows. See VA Medical Records Received February 2018. In April 2015, the Veteran complained of a cough the past 4 weeks. He was diagnosed with bronchitis. See VA Medical Records Received September 2015. In October 2015, the Veteran requested a chest X-ray due to asbestos exposure 10 years prior. The record noted a recent August 2015 chest X-ray revealing no asbestosis. See VA Medical Records Received December 2019. A March 2017 private medical record noted complaints of shortness of breath and a cough. The Veteran reported being following by VA for a chronic cough with the first onset 6 to 7 months prior. The physician noted a past medical history for COPD and that the Veteran was a former smoker. Another March 2017 medical record noted a significant 25 history of smoking up to one and a half packs per day. The Veteran reported that he quit smoking in the 1990s. See Private Medical Records Received June 2018. Additionally, a discharge summary also dated March 2017 noted a diagnosis for COPD exacerbation and a history of asbestos exposure. See Private Medical Records Received June 2018. A VA examination report was obtained in February 2018. The examiner opined that it was "less likely than not (less than 50 percent probability)" that any respiratory condition was etiologically related to service. In support of this opinion, the examiner stated that exposure to asbestos had not been confirmed. With regard to bronchitis, the examiner noted that the condition was an acute finding which was not shown in the STRs. Instead, the examiner stated the Veteran had a history of smoking which increased the risk for asthma and COPD. Specifically, the examiner noted a history for heavy smoking and tuberculosis which increased the risk for asthma, COPD and emphysema. The examiner further noted that the respiratory condition had worsened due to the chronic inflammatory and obstructive nature of COPD, and that the long history of cigarette smoking and latent torulosis would cause a worsening of the disease and require management with medications. In a June 2018 VA Form 21-4138, Statement in Support of Claim, the Veteran stated he had been exposed to asbestos during service at Ft. Jackson due to helping with some construction of old barracks which had piping covered with asbestos insulation. He further stated that he was exposed to asbestos while stationed in old wooden barracks in Kentucky and Korea which also had piping covered with asbestos insulation. In this regard, he stated that several times the insulation appeared damaged and had to be repaired with tape. At a December 2019 Board hearing, the Veteran testified that he found out that a pipe at Fort Jackson where he completed basic training had been wrapped in asbestos. In addition, he testified that he was stationed in Korea and that he found out that "they had asbestos all over the place on pipes and stuff around the barracks." He further testified that a VA doctor told him he had asbestos in his lung. During service, he reported having breathing problems and that he told a treating clinician he had had tuberculosis as a child, and that he was put in his barracks for two weeks and treated with medicine. A January 2020 private medical record noted a history of shortness of breath. A chest X-ray study revealed emphysematous changes. See Private Medical Records Received March 2020. He underwent another VA respiratory examination in January 2021. Diagnoses for asthma and COPD were noted. The Veteran reported that his condition began in the 1980s, that he began experiencing a lot of coughing in 2017, and that an imaging study revealed bronchitis and COPD. In addition, he reported asthma since 2004 which began with symptoms of wheezing, chest pain and difficulty breathing. Since that time, he reported worsening symptoms including difficulty breathing, shortness of breath, chest pain, wheezing and coughing. With regard to his asthma, he reported treatment with an inhaler and nebulizer twice per day. He denied any current treatment for his COPD. The examiner opined that it was "less likely than not (less than 50 percent probability)" that the Veteran had a respiratory condition that was etiologically related to service, to include as due to asbestos exposure. In support of this opinion, the examiner noted that exposure to asbestos had not been confirmed, and that the only evidence of any such exposure was the Veteran's lay statements. Instead, the examiner noted a history of smoking which increased the risk for the development of asthma and COPD. He last underwent a VA examination in September 2021. The examiner noted diagnoses for asthma, emphysema and COPD. The Veteran reported exposure to asbestos while he was stationed in Korea. The examiner noted a prior medical history for tuberculosis at age 8. In addition, it was noted that he was treated for bronchitis during service. The examiner opined that it was "less likely than not (less than 50 percent probability)" that the Veteran's respiratory conditions were etiologically related to service. In support of this opinion, the examiner noted that no chronic asbestos exposure diagnosis had been made. In this regard, the examiner noted a normal examination and that symptoms were only subjective. In addition, the examiner noted that the claimed asbestos exposure event occurred in the 1960s, but that overtime, his chest X-rays studies had been negative. Instead, the examiner found that the diagnosed respiratory conditions were more consistent with the effects of smoking more than a pack per day for 25 years. In the present case, there is sufficient evidence of a current disability as the Veteran has been diagnosed with COPD, emphysema and asthma. Accordingly, the remaining question is whether his diagnosed respiratory conditions are otherwise related to service. After a review of the evidence of record, the Board finds that entitlement to service connection for a respiratory condition is not warranted. In this regard, the Board finds the September 2021 VA examination report the most probative evidence of record. Initially, the Board notes that exposure to asbestos has not been confirmed. In this regard, following the most recent Remand, the Veteran was requested to provide information as to where, how and when he as exposed to asbestos in order to verify his reports. He did not respond to this request. VA's duty to assist in developing the facts and evidence pertinent to his claim is not a one-way street, and it is his responsibility to work with VA with regard to development. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, a June 2021 Request for Information also shows that VA requested records of in-service or job related exposure to asbestos in order to verify any such exposure. A June 2021 response noted that there were no such military personnel or medical records. In any event, despite a lack of evidence showing actual exposure to asbestos, the September 2021 VA examiner did address whether the diagnosed respiratory conditions were asbestos exposure related conditions, and the examiner stated that the diagnosed respiratory conditions were not. Additionally, with regard to direct service connection, although the Veteran reported being exposed to asbestos in the 1960s, and that the condition began during service, the examiner noted that since service, and overtime, chest X-ray studies had been negative. Instead, the examiner concluded that the diagnosed respiratory conditions were more consistent with his extensive cigarette smoking history. The VA examiner's rationale is strongly supported by the medical evidence of record, VA medical records from the time the Veteran initiated treatment routinely show an extensive 25 to 35 year history of smoking. The Veteran's submitted private medical records also document an extensive smoking history and additionally note a history for COPD in connection with smoking. The Board recognizes the Veteran's lay statements that his respiratory conditions began during service due to asbestos exposure and that a VA doctor had told him that he has asbestos in his lungs. However, the Board finds the Veteran to be an inaccurate historian. In this regard, the Board notes that in April 2015, a VA medical record shows he reported that his exposure to asbestos occurred approximately 10 years prior. Additionally, there are no medical records, or any medical evidence showing any residual asbestos related lung condition. In any event, the Board finds that the Veteran's lay assertions in the present case are outweighed by the September 2021 VA medical examiner's opinion, who determined that the there was no nexus between the diagnosed respiratory conditions and service, to include as due to asbestos exposure. The examiner has training, knowledge, and expertise on which she relied to form her opinion, and she provided a persuasive rationale. Importantly, there is no medical evidence to the contrary. Thus, the Board finds that the third Shedden requirement has not been met. Although the Veteran is entitled to the benefit-of-the-doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for a respiratory condition. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.