Citation Nr: 21070197 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 18-23 081A DATE: November 23, 2021 ORDER Entitlement to service connection service connection for a pulmonary disorder, to include asthma and COPD, including as a result of asbestos and beryllium exposure, is denied. Entitlement to service connection for hypoxic and hypercapnic respiratory failure, including as a result of asbestos and beryllium exposure, is denied. Entitlement to service connection for a total abdominal colectomy with ileostomy, including as a result of asbestos and beryllium exposure, is denied. Entitlement to a temporary total evaluation based on convalescence is denied. FINDINGS OF FACT 1. The Veteran's pulmonary disorder, to include asthma and COPD, including as a result of asbestos and beryllium exposure, did not have its clinical onset in service and is not otherwise related to active duty. 2. The Veteran's hypoxic and hypercapnic respiratory failure, including as a result of asbestos and beryllium exposure, did not have its clinical onset in service and is not otherwise related to active duty. 3. The Veteran's total abdominal colectomy with ileostomy, including as a result of asbestos and beryllium exposure, did not have its clinical onset in service and is not otherwise related to active duty. 4. As the Veteran is not service connected for an intestinal disorder, he is not eligible for the award of a temporary total convalescence rating based on colectomy surgery. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a pulmonary disorder, to include asthma and COPD, including as a result of asbestos and beryllium exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for establishing service connection for a hypoxic and hypercapnic respiratory failure, including as a result of asbestos and beryllium exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for establishing service connection for total abdominal colectomy with ileostomy, including as a result of asbestos and beryllium exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 4. A temporary total convalescence rating due to colectomy surgery is not warranted. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1973 to August 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2017 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in January 2020. A transcript of the hearing is in the Veteran's file. In April 2020, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(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 or aggravated during service" the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). At the Veteran's January 2020 hearing, he reported that he believed that his claimed conditions were due to exposure to asbestos and beryllium. The Veteran stated that during service, he was exposed to asbestos while serving in England. Specifically, he noted that while working in a building for 3 years, he had to work and sweep up asbestos dust. The Veteran further stated that after undergoing a colectomy, beryllium had been found in his lower intestines. He stated that beryllium was used in metal alloy, to include handling aircraft bearings. He believed exposure to beryllium occurred while in service. The Board notes that although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure and has concluded that medical nexus evidence is needed to establish a claim based on in-service asbestos exposure. See VAOPGCPREC 4-2000. Essentially, VA must determine whether service 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. The Veteran's DD 214 lists his military occupational specialty as a jet engine mechanic. A November 1987 Medical Care Record shows that the Veteran underwent testing due to asbestos exposure. It was noted that the Veteran's pulmonary function tests (PFTs) were normal, and he was not experiencing any symptoms post exposure. A November 1993 examination report also confirms that the Veteran was exposed to asbestos, but was not experiencing any respiratory issues at that time. Thus, the Board finds that the Veteran was exposed to asbestos during service. Entitlement to service connection service connection for a pulmonary disorder, to include asthma and COPD, including as a result of asbestos and beryllium exposure, is denied. The Veteran was afforded a VA Respiratory Condition examination in January 2012. Diagnoses of asthma and restrict lung disease, noted as COPD, were provided. It was noted that the Veteran required a chronic low dose of corticosteroids, the use of inhaled medications and the use of daily oral bronchodilators. The Veteran had a history of asthmatic attacks and exacerbations. PFT results were shown. A review of private treatment records show an assessment of asthma in April 2003. An October 2008 private treatment note shows an assessment of COPD. A private treatment note dated in February 2012 shows an assessment of shortness of breath and possible asbestosis. A review of VA treatment record reflects an August 2016 VA medical note which shows a diagnosis of acute COPD exacerbation. Another August 2016 VA treatment record showed an assessment of berylliosis. The Veteran was afforded a VA Respiratory Condition examination in May 2020. Diagnoses of asthma and COPD were provided. It was noted that the Veteran's respiratory condition required the use of inhaled medications and inhalational bronchodilator therapy and inhalational anti-inflammatory medication. It was also noted that the Veteran required outpatient oxygen therapy for his respiratory condition and used oxygen via his continuous airway pressure (CPAP) machine due to his COPD. PFT results were shown. The VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted that regarding the pulmonary disability, there was nothing in the service records that would suggest any in-service event, disease, or exposure would have caused these conditions. The VA examiner noted that although he could not find records of high sensitivity lung computed tomography (CT) or of a beryllium lymphocyte proliferation test to help rule out berylliosis, none of the Veteran's past x-rays or chest CTs indicated any lung abnormalities suggesting asbestosis or chronic beryllium disease. The VA examiner stated that although abnormal radiologic lung findings were often not seen early on with asbestosis or berylliosis, it would be likely they would be showing up after exposures almost 20 years ago or more. The VA examiner also noted that after reviewing the medical records, the claimed pulmonary disability was as likely as not due to a combination of genetics and asthma, resulting in COPD. It was made worse by his obstructive sleep apnea. The VA examiner also stated that although it is true that beryllium exposure or asbestos exposure may resultantly cause asbestos or berylliosis that, in turn, can be a cause of COPD, current literature and studies concluded that the diagnosis of asbestosis or berylliosis should be substantiated by abnormal chest x-ray or lung CT findings suggestive of asbestosis or berylliosis. The VA examiner noted that since the 20 years or so when the Veteran was exposed, there had been no x-ray findings suggestive of either. After a review of the record, the Board finds that the preponderance of the evidence is against the claim for service connection for a pulmonary disorder, to include asthma and COPD, including as a result of asbestos and beryllium exposure. The May 2020 VA medical examination report reflects that the VA examiner did not find that the Veteran's current pulmonary disorder was related to service. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Further, the May 2020 VA examiner's opinion was provided based upon a comprehensive review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no competent medical opinion to the contrary. The Veteran's lay statements and the articles submitted have been considered. While the Veteran contends that he has a condition that is related to his military service, to include asbestos and beryllium exposure, there is no indication that he has specialized training or credentials in diagnosing a pulmonary disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the diagnosis of a pulmonary condition requires medical testing and training to identify. Thus, his contention is not a competent medical opinion. The Board accords significantly greater probative value to the opinion rendered by the VA examiner. The Board also notes that the May 2020 VA examiner related the claimed disorder to obstructive sleep apnea. Service connection for obstructive sleep apnea was recently denied in a February 2021 rating decision on the basis of no new and relevant evidence. In May 2021, the Veteran submitted a VA Form 10182 (Decision Review Request). In this form, he mentioned using a C-PAP machine and a portable oxygen machine. However, he did not specify any claims for review and did not list an underlying rating decision. In May 2021, the RO informed the Veteran that his VA Form 10182 did not specify any issues for appeal, and another form listing the issues would be required. The Veteran has not responded to date. The Board therefore finds no pending claim or appeal as to service connection for obstructive sleep apnea, and the current appeal is accordingly not inextricably intertwined with such a claim. In sum, the preponderance of the evidence is against the claims of service connection; there is no doubt to be resolved; and service connection for a pulmonary disorder, to include asthma and COPD, including as a result of asbestos and beryllium exposure, is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Entitlement to service connection for hypoxic and hypercapnic respiratory failure, including as a result of asbestos and beryllium exposure, is denied. The Veteran was afforded a VA Respiratory Condition examination in January 2012. Episodes of respiratory failure were not found. A private treatment record dated in September 2015 shows an assessment of hypoxia. A VA treatment record dated in August 2016 shows a diagnosis of hypoxic and hypercapnic respiratory failure due to exacerbation of COPD. The Veteran was afforded a VA Respiratory Condition examination in May 2020. A diagnosis of respiratory failure, a single episode in 2016, was provided. It was noted that the Veteran had experienced shortness of breath and acute respiratory failure when he was admitted to the hospital in 2016. Also noted was that the Veteran's COPD was responsible for the episode of respiratory failure. The VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted that regarding the hypoxic and hypercapnic respiratory disability, there was nothing in the service records that would suggest any in-service event, disease, or exposure would have caused these conditions. The VA examiner noted that although he could not find records of high sensitivity lung CT or of a beryllium lymphocyte proliferation test to help rule out berylliosis, none of the Veteran's past x-rays or chest CTs indicated any lung abnormalities suggesting asbestosis or chronic beryllium disease. The VA examiner stated that although abnormal radiologic lung findings were often not seen early on with asbestosis or berylliosis, it would be likely they would be showing up after exposures almost 20 years ago or more. The VA examiner also noted that after reviewing the medical records, the claimed hypoxic and hypercapnic respiratory disability was as likely as not due to a combination of genetics and asthma, resulting in COPD. It was made worse by his obstructive sleep apnea. The VA examiner also stated that although it is true that beryllium exposure or asbestos exposure may resultantly cause asbestos or berylliosis that, in turn, can be one of a cause of COPD, current literature and studies concluded that the diagnosis of asbestosis or berylliosis should be substantiated by abnormal chest x-ray or lung CT findings suggestive of asbestosis or berylliosis. The VA examiner noted that since the 20 years or so when the Veteran was exposed, there had been no x-ray findings suggestive of either. After a review of the record, the Board finds that the preponderance of the evidence is against the claim for service connection for hypoxic and hypercapnic respiratory failure, including as a result of asbestos and beryllium exposure. The May 2020 VA medical examination report reflects that the VA examiner did not find that the Veteran's current respiratory condition was related to service. See Prejean v. West, supra. Further, the May 2020 VA examiner's opinion was provided based upon a comprehensive review of the claims file. See Nieves-Rodriguez v. Peake, supra. There is no competent medical opinion to the contrary. The Veteran's lay statements and the articles submitted have been considered. While the Veteran contends that he has a condition that is related to his military service, to include asbestos and beryllium exposure, there is no indication that he has specialized training or credentials in diagnosing a respiratory disorder. See Jandreau v. Nicholson, supra. In this regard, the diagnosis of a respiratory condition requires medical testing and training to identify. Thus, his contention is not a competent medical opinion. The Board accords significantly greater probative value to the opinion rendered by the VA examiner. In sum, the preponderance of the evidence is against the claims of service connection; there is no doubt to be resolved; and service connection for hypoxic and hypercapnic respiratory failure, including as a result of asbestos and beryllium exposure, is not warranted. See 38 U.S.C. § 5107(b). Entitlement to service connection for a total abdominal colectomy with ileostomy, including as a result of asbestos and beryllium exposure, is denied. A review of VA treatment record reflects a September 2016 VA medical note which shows that the Veteran underwent a total abdominal colectomy in August of that year. The Veteran was afforded a VA Intestinal Surgery examination in May 2020. A diagnosis of resection of the large intestine, perforated colon, in 2016, was provided. It was noted that the Veteran had a colectomy and colostomy and had a permanent colostomy bag. The VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted that regarding the abdominal colectomy/status post abdominal colectomy condition, there was nothing in the service records that would suggest any in-service event, disease, or exposure would have caused these conditions. The VA examiner stated that the colectomy occurred in 2016 and at that time, he had a peritoneal abscess and a perforated colon. There was no active service record that indicated any disease, exposure, injury or event that may have contributed to or caused his colectomy or caused the abscess or leakage. The VA examiner also stated that the status post abdominal colectomy condition was as likely as not due resection for the colon due to an abdominal abscess and intestinal rupture. The cause of the rupture was as likely as not due to the abscess. The reason for the abscess is unknown other than probable infection that had begun in the days, weeks, or months prior to its discovery. No current good studies or rationale suggested that the Veteran's colon abscess, perforation and colectomy/colostomy, or any colon abnormalities that caused the problems, were caused or aggravated by exposure to beryllium and asbestos. After a review of the record, the Board finds that the preponderance of the evidence is against the claim for service connection for a total abdominal colectomy with ileostomy, including as a result of asbestos and beryllium exposure. The record contains no competent opinion linking the Veteran's claimed condition to his active service. The May 2020 VA opinion was provided based upon a comprehensive review of the claims file and examination of the Veteran. See Nieves-Rodriguez v. Peake, supra. While the Veteran contends that he has a condition that is related to his military service, to include asbestos and beryllium exposure, there is no indication that he has specialized training or credentials in diagnosing an intestinal condition. See Jandreau v. Nicholson, supra. In this regard, the diagnosis of an intestinal disorder requires medical testing and training to identify. Thus, his contention is not a competent medical opinion. The Board accords significantly greater probative value to the opinion rendered by the VA examiner. In sum, the preponderance of the evidence is against the claims of service connection; there is no doubt to be resolved; and service connection for a total abdominal colectomy with ileostomy, including as a result of asbestos and beryllium exposure, is not warranted. See 38 U.S.C. § 5107(b). Entitlement to a temporary total evaluation based on convalescence is denied. The Veteran is also seeking a temporary total disability rating due to convalescence following an April 2016 surgery on his perforated colon. Under 38 C.F.R. § 4.30, a total rating will be assigned if treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals or the necessity for house confinement or continued use of a wheelchair or crutches; or (3) immobilization by cast, without surgery, of one major joint or more. As explained above, service connection is not warranted for an intestinal disorder. Thus, this nonservice-connected disability cannot form the basis of entitlement to a temporary total disability rating due to convalescence, and the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law and not the evidence is dispositive, the Board should deny the claim based on a lack of legal merit). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Evans, A-L 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.