Citation Nr: 21073891 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 10-45 547 DATE: December 13, 2021 ORDER Service connection for a respiratory disability, diagnosed as chronic obstructive pulmonary disease (COPD), is granted. FINDING OF FACT The Veteran's COPD was incurred as a result of his exposure to asbestos during his active service. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, diagnosed as COPD, have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1979 to January 1983. On the Veteran's November 2010 VA Form 9, he requested a hearing before the Board. However, in a written statement received in January 2011, he withdrew his request for a Board hearing. In June 2015, February 2018, November 2019, and December 2020, the case was remanded by other Veterans Law Judges for additional development. The case has now been assigned to the undersigned Veterans Law Judge. Service connection for a respiratory disability, diagnosed as COPD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 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 contends that his currently diagnosed COPD is due to his military service, to include as a result of being exposed to asbestos during such service. The Veteran's service treatment records (STRs) do not note any reports, findings, diagnosis, or treatment of COPD. A December 1979 STR noted that he was seen for a non-productive cough and that he had been smoking two packs of cigarettes per day for 13 years, and he was assessed with smoker's cough at that time. The Veteran's service records document that his last grade, rank, or rating in the Navy was BT3 [Boiler Technician 3rd Class]. Consequently, VA has conceded that he was exposed to asbestos during his military service. Post-service, the medical evidence of record shows that the Veteran has been diagnosed with COPD, with such diagnosis first noted in an August 2009 VA treatment record and reiterated at VA respiratory examinations in January 2011, November 2015, December 2019, and June 2021. In January 2011, the VA staff physician who conducted the January 2011 VA respiratory examination opined that the Veteran's currently diagnosed COPD was less likely than not caused by, aggravated by, or the result of activities during military service, including his in-service exposure to asbestos. For rationale, the VA examiner noted that COPD was not generally considered related to asbestos exposure and that the Veteran had a long-term smoking history with well-known association to COPD. However, the VA examiner went on to cite to a European Respiratory Journal article (which was submitted by the Veteran into the record in December 2010) which documented a study showing that occupational exposure to inorganic dust (including asbestos) increased mortality due to COPD even in never-smokers, but such increased mortality due to COPD was not seen with exposure to wood dust. The VA examiner then provided the following additional opinions: that the Veteran's long-term smoking history remained a far more significant cause of his current COPD than any possible contribution from dust; that even if dust were to aggravate his condition, his many years of post-service exposure to glue and wood dust would be expected to more likely cause his increased risk for COPD than his four years of military service; and that the Veteran's four years of in-service asbestos exposure "would not rise to the level of at least as likely as not as a contributor to his current condition [of COPD]." However, the VA examiner did not provide any explanatory rationale for these additional opinions or reconcile the contradictory conclusions therein (particularly with regard to the comments regarding effects of wood dust exposure). In November 2015, the VA occupational medicine physician who conducted the November 2015 VA respiratory examination opined that it was less likely as not that the Veteran's currently diagnosed COPD was related to his in-service asbestos exposure. For rationale, the VA examiner noted that there was no evidence in the medical literature, consensus in the medical community, or evidence in this specific case that supported a causal/aggravation relationship between COPD and asbestos exposure. However, this rationale did not take into account the European Respiratory Journal article of record (as outlined above) or address the question of whether the Veteran's in-service asbestos exposure contributed in any measure to his current COPD. In December 2019, the VA primary care physician who conducted the December 2019 VA respiratory examination opined that the Veteran's currently diagnosed COPD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the VA examiner noted reviewing the pertinent evidence of record (including the European Respiratory Journal article outlined above) and acknowledged that it was true that a person who had never smoked could develop COPD from various exposures, but then went on to state that this was not the case in this Veteran because he had a long history of smoking (for more than 50 years, of two packs per day during most of those years) and that numerous epidemiologic studies indicated that tobacco smoking was overwhelmingly the most important risk factor for COPD. However, this rationale did not address the question of whether the Veteran's in-service asbestos exposure contributed in any measure to his current COPD. In June 2021, the VA primary care nurse practitioner who conducted the June 2021 VA respiratory examination opined that the Veteran's currently diagnosed COPD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, and further opined that "[a]lthough the [V]eteran was diagnosed with asbestos exposure, it is less likely than not that this caused his COPD." The VA examiner also opined the following: "However, his exposure to asbestos can be considered a factor that contributed to his diagnosis of COPD, although smoking would be considered the main cause." For rationale, the VA examiner cited to a study regarding the effects of asbestos exposure in both smoking and non-smoking workers. Regarding the question of whether the Veteran's conceded in-service asbestos exposure contributed in any measure to his current COPD, the Board finds that the most probative evidence of record is the favorable medical opinion provided by the June 2021 VA examiner on this point, as this opinion is supported by an adequate rationale which took into account the pertinent circumstances of the Veteran's service as well as pertinent medical research. Therefore, the Board affords this opinion substantial weight of probative value. As outlined above, the medical opinions provided by the November 2015 and December 2019 VA examiners did not address this question at all, and the Board finds that the unfavorable medical opinion provided by the January 2011 VA examiner is entitled to less probative weight due to a lack of adequate explanatory rationale. In light of the foregoing, and after resolving all doubt in the Veteran's favor, the Board concludes that service connection for a respiratory disability, diagnosed as COPD, is warranted on a direct basis. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). [The Board also finds that the instant decision applies to and resolves all pending claims of service connection for a respiratory disability, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).] M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. B. Yantz, 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.