Citation Nr: 21069595 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-39 606 DATE: November 18, 2021 ORDER Service connection for interstitial lung disease is denied. Service connection for asbestosis is denied. Service connection for emphysema is denied. Service connection for chronic obstructive pulmonary disease (COPD) is denied. Service connection for pulmonary fibrosis with lung nodules is denied. REMANDED Service connection for posttraumatic stress disorder (PTSD) is remanded. Service connection for depression is remanded. Service connection for panic attacks is remanded. Service connection for anxiety is remanded. FINDINGS OF FACT 1. The Veteran's military occupational specialty (MOS) of Aviation Structural Mechanic (AMH) had a probable likelihood of exposure to asbestos. 2. The Veteran does not have confirmed exposure to herbicide agents in service. 2. The preponderance of the evidence is against finding that claimed interstitial lung disease, asbestosis, COPD, or pulmonary fibrosis with lung nodules began during active service, or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for interstitial lung disease are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for asbestosis are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for emphysema are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for pulmonary fibrosis with lung nodules are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran, and his witness (T.F.), testified before the undersigned Veterans Law Judge in December 2020 virtual teleconference; a transcript of the hearing is of record. Service connection for interstitial lung disease, asbestosis, emphysema, COPD, pulmonary fibrosis with lung nodules is denied. The Veteran contends that he suffers from a respiratory disability due to service. Specifically, he has alleged exposure to asbestos and Agent Orange. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 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). The Veteran submitted a correspondence in which he stated that on May 31, 1968, he was transferred to the U.S.S. Kitty Hawk as an aircraft mechanic. He stated that during his time there, he would prepare planes to get to dry dock. He further stated that one plane had been sprayed with Agent Orange. He stated that he was not an 'in-country Vietnam Veteran.' During his testimony before the undersigned, the Veteran asserted that he was exposed to Agent Orange in service because he filled barrels with Agent Orange and also fueled C-135 aircraft that were used as 'sprayer planes.' In a May 2018 memorandum, the U.S. Army & Joint Services Records Research Center (JSRRC) stated that it could provide no evidence to support the claim of exposure to herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam era. The Veteran also submitted a March 2018 Exposure to Asbestos Questionnaire in which he stated that while on board the U.S.S. Kitty Hawk, he removed asbestos from piping on the dry dock in Bremerton, Washington. He also stated that there was asbestos on the U.S.S. Kitty Hawk. The Board recognizes that the Veteran's MOS as an Aviation Structural Mechanic (AMH) noted on his DD-214 show that the Veteran had a probable likelihood of exposure to asbestos. The Veteran underwent a VA examination in July 2016. The examiner noted that the Veteran was a poor historian. The Veteran thought that his physician told him that he has a lung condition, but he (the Veteran) provided no details and could not relate any history. He reported that he has had shortness of breath since he got out of the service, and that he has a hard time breathing in the heat. He had an inhaler. He reported that he was taking some pills but was no longer taking them at the time of the exam. He reported having intermittent coughing and wheezing with exertion. He stated that he smoked a pack of cigarettes per day for 10 years, and that he quit smoking 20 years ago. The Veteran reported that during service, he helped the plumbers take asbestos off the pipes and put it in plastic bags. He stated that he did it daily for 2 months. After service he worked in a factory for 15 years, and then as an electrician for 20+ years. He denied any post-service history of asbestos exposure. The examiner noted that a May 2014 treatment report includes a diagnosis of pulmonary fibrosis and lung nodules. However, there were no details regarding the diagnosis insofar as the visit was for complaints of sleep apnea. The examiner noted that a July 2016 X-ray was normal, as were pulmonary function tests (PFTs). The examiner further noted that the Veteran's lungs were clear and equal, and that there was no evidence of pulmonary disease. The Veteran submitted a December 2017 Disability Benefits Questionnaire (DBQ) completed by Dr. W.D, who diagnosed emphysema, COPD, interstitial lung disease, and asbestos. Dr. W.D. noted that the Veteran reported shortness of breath, dyspnea, and cough. The Veteran reported that his respiratory disabilities require the use of inhaled medications. Dr. W.D. noted that the Veteran had bronchiectasis. Dr. W.D. stated that an October 2017 CT scan reflected COPD, bronchiectasis, and nodules. He also noted that PFTs reflect that the Veteran requires outpatient oxygen therapy. He also stated that the Veteran had asbestos exposure while in the Navy from 1963-70. However, this finding is followed by "* opinion." Dr. W.D. stated that the Veteran is unable to work due to cough, congestion, and wheezing. In May 2018, the July 2016 VA examiner re-examined the Veteran. She noted that the Veteran was diagnosed last year with an autoimmune disease affecting his kidneys, heart, and lungs. She noted that he is on oral steroids for autoimmune disease, "NOT FOR HIS LUNGS." [Emphasis in original]. The Veteran reported that he had pneumonia, and says that they took out "over a gallon of fluids from my lungs." He does not use oxygen. He stated that he tried it briefly at night only to see if it would help and it did not. The examiner noted that the Veteran was not taking any lung medications. The Veteran stated that he stopped smoking "more than 10 years ago." He stated that prior to quitting, he smoked for about 45 years, 1 pack per day. The examiner noted that the DBQ completed by Dr. W.D. reflects emphysema, COPD, and interstitial lung disease and noted "asbestos"- (which the VA examiner noted is not a condition, it is a fiber). Dr. W.D. then stated that the Veteran needed oral steroids and was on continuous oxygen. He then noted a history of bronchiectasis, and stated that a CT scan showed COPD, bronchiectasis, and nodules. Finally, Dr. W.D. stated that the Veteran was unable to work due to symptoms. The VA examiner opined that these findings were misleading. The VA examiner cited a February 2017 report reflecting that the Veteran had a 40 year history of smoking, and that he was recently diagnosed with vasculitis with likely pulmonary involvement with pleural effusions. The Veteran was found to have renal failure and pulmonary effusions. In March 2017, the Veteran reported shortness of breath when lying down. He was sent for a cardiac test which showed constrictive pericarditis (a heart dysfunction). A November 2017 report reflects that kidney and pulmonary function improved following treatment for his autoimmune disease. The VA examiner noted that in November 2017, the Veteran pulmonologist stated that "repeat high resolution CT scan of the chest does not reveal any evidence of interstitial lung disease" and that "his dyspnea is not related to any pulmonary etiology. It is probably related to constrictive pericarditis." The VA examiner noted that nowhere in the treatment records is there a diagnosis of interstitial lung disease, COPD, or asbestos-related disease. She noted that bronchiectasis is an incidental finding on last CT scan, but not a diagnosis. She noted that numerous CT scans have shown nodules and pleural effusions both related to an autoimmune disease. November 2017 PFTs reflected normal FEV1/FVC. She noted that decreased other volumes were most likely due to obesity. In a May 2018 follow up opinion, the VA examiner repeated that "The Veteran DOES NOT have asbestos-related lung disease. He also has no evidence of COPD of imaging. He has nodules which are stable and not uncommon and not caused by anything. He does not have findings of persistent fibrosis or interstitial lung disease. He has no lung symptoms. Lung volumes are normal. Any CT findings and treatment are for his autoimmune disease, not asbestos and current findings, such as mild bronchiectasis, are not clinically relevant." She further noted that the Veteran "has no pleural plaques suggesting asbestos exposure and had MINIMAL exposure in service. The Veteran has no asbestos-related or any other lung condition related to service. There is no evidence which would change my opinion as the medical records are clear and [Dr. W.D.'s] DBQ is misleading and has some false statements. His other pulmonologist's records are clear and complete. I am CERTAIN about my opinion. There is no ambiguity in this case." [Emphasis in original]. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The record contains conflicting medical opinions regarding whether the Veteran's claimed lung disabilities are at least as likely as not related to service, including his reported asbestos exposure. The VA examiner opined, in July 2016 and in May 2018, that the Veteran's symptoms are not related to service. The rationale was that the Veteran has an autoimmune disability and not a disability of the lungs (to include for interstitial lung disease, asbestosis, emphysema, COPD, pulmonary fibrosis with lung nodules). The VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Private practitioner W.D. opined that the Veteran has lung disabilities due to service. However, there was no rationale other than to note his opinion that the Veteran was exposed to asbestos. This opinion is, however, less probative than the VA examiner's opinion. There is little indication that Dr. W.D. reviewed pertinent medical evidence in the claims file. Instead, the opinion appears to be based on the Veteran's self-reported medical history, which is inconsistent with VA treatment records that include normal X-rays and PFTs, and which specifically state that the Veteran does not have interstitial lung disease, and that the Veteran's dyspnea is likely related to constrictive pericarditis. Consequently, the Board gives more probative weight to the July 2016/May 2018 VA examiner. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Veteran believes his respiratory symptoms are related to an in-service injury, event, or disease. He is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the July 2016/May 2018 VA examiner. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and the claims for service connection for interstitial lung disease, asbestosis, emphysema, COPD, pulmonary fibrosis with lung nodules must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service connection for PTSD, depression, anxiety, and panic attacks is remanded. The Veteran contends that he suffers from a psychiatric disorder manifested as PTSD, depression, anxiety, and panic attacks as a result of his military service. Specifically, he contends that while stationed as a jet mechanic on the carrier Kitty Hawk during Vietnam, he witnessed several shipmates become severely injured when jet engines threw them against the bulkhead and caused them to fall down the stairs. He stated that he was unable to help them, and that this has been traumatic for him. The Veteran submitted a February 2018 Disability Benefits Questionnaire (DBQ) in which the clinician (C.M.) opined that the Veteran has PTSD symptoms due to service in the Navy. C.M. also provided a June 2018 private opinion in which he opined that the traumas described by the Veteran have resulted in nightmares, hypervigilant-startle reactions with noise, anger outbursts, quick temper, distrust of others, paranoia, fear of getting hurt, and an inability to make or sustain relationships. Finally, the Veteran submitted an October 2017 DBQ from L.K. in which she opined that PTSD, depression, and anxiety are related to service. The low threshold for a VA examination and/or opinion has been met. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). This matter is remanded for a VA examination and opinion to determine whether the Veteran has a psychiatric disorder(s) due to his reported stressors. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his claimed psychiatric disorder(s). The examiner must review the claims file. The examiner is asked to provide a response to the following: a) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. b) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed psychiatric disorder(s) is at least as likely as not related to an in-service injury, event, or disease, to include, including the Veteran reportedly witnessing fellow servicemen and servicewomen being severely injured when jet engines threw them against the bulkhead and caused them to fall down the stairs? Provide a rationale to support the opinion(s). In providing the requested opinion and rationale, consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of a current psychiatric disorder(s), this should be noted. The examiner should also acknowledge the Veteran's lay statements as well as those made by his wife in a February 2018 correspondence. The examiner should also consider the June 2018 private opinion provided by C.M. (clinical therapist) and the October 2017 opinion of L.K. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Prem, 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.