Citation Nr: 21072320 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-45 803 DATE: December 2, 2021 ORDER Entitlement to service connection for respiratory disability, diagnosed as interstitial lung disease, hypersensitivity pneumonitis, pulmonary fibrosis, and pleural plaques associated with asbestos exposure is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's respiratory disability is related to service. CONCLUSION OF LAW The criteria for service connection for respiratory disability, diagnosed as interstitial lung disease, hypersensitivity pneumonitis, pulmonary fibrosis, and pleural plaques associated with asbestos exposure have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 U.S.C. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to March 1966, June 1966 to July1966, June 1967 to July 1967, July 1967 to July 1967, April 1968 to May 1968. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for inflammation of lungs, shortness of breath, pulmonary fibrosis associated with asbestos exposure (pleural plaques). The Veteran disagreed with the RO's determination, and a Statement of the Case was issued in August 2018 addressing the matter. The Veteran timely appealed. In March 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record on appeal. In light of the Veteran's reported symptoms and contentions and to encompass all disorders that are reasonably raised by the record, the Board has recharacterized the claim of service connection for inflammation of lungs, shortness of breath, pulmonary fibrosis associated with asbestos exposure (pleural plaques) as a claim of service connection for a respiratory disability, diagnosed as interstitial lung disease, hypersensitivity pneumonitis, pulmonary fibrosis, and pleural plaques associated with asbestos exposure. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in the active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Respiratory Disability In this case, the evidence of record demonstrates that the requirement of a current disability has been met. Specifically, an April 2017 private Disability Benefits Questionnaire (DBQ) shows diagnoses of interstitial lung disease, hypersensitivity pneumonitis, and pulmonary fibrosis secondary to asbestos exposure. Additionally, a July 2017 VA examination report shows diagnoses of pleural plaques and hypersensitivity pneumonitis. With respect to the issue service incurrence, service treatment records (STRs) show treatment for chest pains in May 1968, with x-rays noted as normal. In April 2017 statements, the Veteran reported that he worked in aircraft maintenance and was exposed to asbestos in the hangers, shops, gaskets, brake linings on aircraft, insulation around the tailpipes, and cleaning of the hangers and stairwells while on active duty. He noted treatment for pleurisy at a local hospital in December 1965, during basic training in January-February 1966, and on base in May 1968. The Veteran further noted that he has experienced breathing problems since then. At his March 2021 Board hearing, the Veteran testified that he had a bout of pleurisy in late November into December before being sent away to bootcamp. He stated that he was put on restricted duty until he was able to leave in January for basic training. The Veteran reported a second bout of pleurisy while working on the flight line and cleaning the hanger. He was put on restricted duty again due to respiratory issues. The Veteran indicated that his symptoms started while he was on active duty, continued through the 1970's and 1980's, and then he experienced a collapsed diaphragm in 1985, and was subsequently diagnosed with pleural plaques, pleural thickening, and interstitial lung disease. The Veteran noted that he worked in sheet metal/construction after military service and had no asbestos exposure at his post-service job. He worked mostly on new buildings and if asbestos was detected, it would not be touched nor would the Veteran be present for asbestos abatement. He further noted that his symptoms in 1985 were well before any post-service exposure to mold or any other materials. Here, the STRs along with the competent and credible lay statements from the Veteran demonstrates that he exhibited respiratory symptoms during service. This is sufficient to meet the second element of the service connection claim. In April 2017, VA received a private clinical record dated in June 2005, indicating that that the Veteran has multiple calcified and noncalcified bilateral pleural plaques consistent with asbestos related pleural disease. An April 2017 private DBQ indicates the Veteran has a history of exposure to asbestos at work in the 1960s and developed severe respiratory distress in 2004. In a July 2017 VA examination report, the examiner opined that the Veteran's hypersensitivity pneumonitis (HSP) is not related to his service or his evaluations in service. The examiner explained the Veteran has some interstitial findings, but these are part of his HSP. The examiner stated this was clearly due to his exposure at work in 2004. The examiner noted the Veteran had remote pleurisy, but this was acute and resolved. The examiner further noted that the Veteran had no lung problems for several decades prior to 2004 and all of his current lung symptoms are due to his exposure in 2004. The VA examiner also opined that the Veteran has pleural plaques which are most likely related to asbestos exposure. The examiner noted the Veteran does not have asbestosis, rather only plaques that are a marker of exposure. The examiner further noted the Veteran had exposure in and out of service, and with only a few months of active duty, these are most likely than not related to his many years in HVAC. The examiner concluded that there would have been asbestos used in that field certainly in the 60's and 70's, and even his time in the guard was only weekends and his post-service employment would far outweigh that. In a February 2021 statement, the Veteran's wife reported being a nurse for 32 years working in neurosurgery, otology, urology, and private duty. She stated the Veteran had a health scare in 1985 when he experienced shortness of breath and dropped to his knees at work. The Veteran was taken to the emergency room and more symptoms occurred after this episode. She observed the Veteran experience shortness of breath, struggling to catch his breath, looking pale, and feeling dizzy. They were informed that his symptoms were due to right diaphragm collapsed pushing up on his lung, which was not fully working. Further testing revealed pleural plaques and thickening not allowing air movement, and asbestos in the Veteran's lungs. The Veteran's wife noted that to this day and beyond, medications of prednisone and inhalers will be needed to keep his air way leading into his lungs and down into this depth of his lugs for alveoli to expand. The Board finds that the July 2017 VA opinion that the Veteran's respiratory condition is not related to service is of no probative value, as it was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Specifically, the July 2017 VA examiner incorrectly stated the Veteran had no lung problems for several decades prior to 2004 and all of his current lung symptoms are due to his exposure in 2004. However, the evidence of record demonstrates that in 1985, the Veteran's diaphragm collapsed and was pushing up on his lung, which was not fully working. Further testing revealed pleural plaques and thickening not allowing air movement, and asbestos in the Veteran's lungs. Moreover, the VA examiner failed to consider the Veteran's competent and credible statements of the onset of respiratory symptoms in service, and the continuation of symptoms in the years since service. The current diagnosis, STRs indicating symptoms, the Veteran's competent and credible lay statements of respiratory symptoms in-service, and the continuation of symptoms since service, the Veteran's wife's lay and medical statements, and June 2005 private clinical record are sufficient to establish that the Veteran's respiratory disability is related to service. For the reasons set forth above, Board finds that the evidence is at least in equipoise as to whether the Veteran's respiratory disability had its onset in service. Thus, resolving reasonable doubt in the Veteran's favor, service connection is warranted for respiratory disability, diagnosed as interstitial lung disease, hypersensitivity pneumonitis, pulmonary fibrosis, and pleural plaques associated with asbestos exposure. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.