Citation Nr: 21074220 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 14-33 036 DATE: December 14, 2021 ORDER Service connection for asbestosis is denied. REMANDED Entitlement to service connection for a respiratory disorder, to include as due to exposure to asbestos and/or herbicides, is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities (BUE), to include as secondary to a cervical spine disorder, is remanded. FINDING OF FACT At no time during the pendency of the appeal did the Veteran have a current diagnosis of asbestosis, and the record does not contain a recent diagnosis of asbestosis prior to the Veteran's filing of a claim. CONCLUSION OF LAW The criteria for service connection for asbestosis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2016, August 2018, and August 2020, the case was remanded for additional development, and now returns for further appellate review. The Board observes the Veteran has also perfected an appeal as to the issues of entitlement to service connection for a cervical spine disorder, an acquired psychiatric disorder, kidney cancer, erectile dysfunction, hypertension, renal insufficiency, headaches, gastroesophageal reflux disease, polyuria, bilateral hearing loss, and entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities. However, as he requested a Board hearing before a Veterans Law Judge in connection with such appeal, those issues will be the subject of a separate Board decision issued at a later date, if otherwise in order. Service Connection 1. Entitlement to service connection for asbestosis, claimed as due to exposure to asbestos. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). An award of service connection requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen, 7 Vet. App. 439; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends he had asbestos exposure as a result of his military duties. Turning to the evidence of record, a private February 2012 computed tomography (CT) scan revealed two pulmonary nodules on the right upper and right lower lobes. Additionally, a private August 2012 CT scan reflects three pleural-based nodular densities right hemithorax. The examiner noted such may represent pleural plaques. See Tristan Associates records. However, a separate June 2012 private chest x-ray reflects the heart, mediastinum, hilar structures, and pulmonary vasculature are normal, with the lungs symmetrically expanded and clear. There was no pleural effusion, pneumothorax, or lung hyperinflation. The impression was no radiographically evident active cardiopulmonary disease. See Pinnacle Health records. A review of the Veteran's service and post-service treatment records reflects such are silent for any complaints, treatment, or diagnosis referable to asbestosis. In this regard, the Veteran underwent a general medical VA examination in February 2013. At such time no sinus or respiratory conditions were noted. Additionally, a July 2017 VA respiratory examination and addendum opinion were negative for a diagnosis of asbestosis. Specifically, after reviewing the CT scan performed in conjunction with the July 2017 examination, the examiner stated that, based upon the results, the diagnosis of pulmonary nodules no longer appears to be evident, as only a benign calcified granuloma is now evident. Thus, a diagnosis of pleural plaques or asbestosis was not supported. The Veteran underwent another VA respiratory examination in February 2020. At such time, he was diagnosed with emphysema and lung calcified granulomas. After a physical evaluation, the examiner opined the Veteran did not have a respiratory disorder as a result of asbestos exposure. As rationale, he explained that while the August 2012 private examiner noted three pleural-based nodular densities identified in the right hemithorax may represent pleural plaques rather than pulmonary nodules, such statement does not state that the nodular densities are pleural plaques, the pathognomonic finding in pulmonary asbestosis. Instead, this statement only raises the question of the possible presence of pleural plaques, but other chest CT scans do not support the possibility that the three nodules are pulmonary plaques. Specifically, the August 2012 chest CT reports a pleural-based nodular density that measures 3 mm. The corresponding finding on a chest CT performed July 2017 reported mild scarring in the anterior aspect of the right upper lobe. The corresponding finding on a chest CT in February 2012 was simply reported as a 3 to 4 mm pleural-based nodule in the anterior right upper lobe. Therefore, this right upper lobe finding is diagnosed as mild anterior right upper lung lobe scarring, which is most likely a residual of a previous case of bronchitis or pneumonia. Further, the chest CT reports a pleural-based nodular density that measures 5 mm. This finding is not mentioned in the reports of the other chest CTs, suggesting this may be an artifact on the August 2012 chest CT or variation in the radiologists' interpretations as to whether a pulmonary nodular density is actually present at this location. Therefore, it is not reasonable to make a diagnosis on a questionable finding. Finally, the August 2012 chest CT reports a pleural-based nodular density that measures 5.5 mm. The February 2012 chest CT reports a 5 to 6 mm pleural-based pulmonary nodule, and the July 2017 chest CT reports a tiny, calcified granuloma in the right lower lobe. Therefore, this right lower lobe finding is diagnosed as a calcified right lower lung lobe granuloma. Because there are no pleural plaque-like findings on any other chest CTs, the Veteran does not appear to have lung pleural plaques, and therefore, the veteran is not diagnosed with asbestosis. Instead, the examiner noted that emphysema, calcified right lower lung lobe granulomas, and mild anterior right upper lung lobe scarring are not characteristic of asbestosis or asbestos exposure. Further, during the examination, the Veteran denied having any pulmonary symptoms, or complaints of shortness of breath and dyspnea during service or over the last several years. Thus, it is less likely than not the Veteran's respiratory disorder is a result of in-service asbestos exposure. Furthermore, the file does not contain any medical evidence supporting such a diagnosis. Additionally, it is well established that a layperson without medical training is not qualified to render medical opinions regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159(a)(1). In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, as the diagnosis of asbestosis is not a simple question that can be determined based on mere personal observations by a lay person, the lay testimony of record is not competent to establish a medical etiology or nexus. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. In this regard, while the Veteran is competent to report respiratory symptoms, they are not competent to diagnosis a disability based on such symptomatology. As such, the Board finds the diagnosis of asbestosis does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. Here, it is not shown the Veteran is qualified through specialized education, training, or experience to offer such a medical opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Therefore, the lay assertions of record as to the presence of a current diagnosis of asbestosis are afforded no probative weight. In sum, the Board finds that at no time during the pendency of the appeal did the Veteran have a current disability of asbestosis, and the record does not contain a recent diagnosis of asbestosis prior to the Veteran's filing of a claim. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for asbestosis. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 2. Entitlement to service connection for a respiratory disorder. The Veteran contends he has a respiratory disorder that had its onset during service, to include as due to exposure to asbestos and/or herbicides, including Agent Orange, while operating in and around the Korean DMZ with the 2nd Battalion, 76th Artillery. In this regard, the Veteran's service treatment records (STRs) are negative for complaints, treatment, or diagnoses referable to a respiratory disorder, with the exception of his December 1968 separation examination which reflects "shortness of breath with exercise." As an initial matter, the Board notes that the Veteran's exposure to asbestos is unconfirmed. Further, in July 2011 and April 2017 memorandums, VA made formal findings that the evidence of record did not establish exposure to herbicides. Nonetheless, the Veteran underwent VA examinations in July 2017 and February 2020, and was diagnosed with pleural nodules, emphysema, and lung calcified granuloma. Although the examiners provided opinions with adequate rationales concerning service connection for his contention that such disorders are caused by asbestos exposure, neither examiner discussed whether such disorders are a result of his claimed in-service environmental exposures. Further, VA treatment records reflect additional diagnoses of chronic sinusitis and allergic rhinitis. A December 2011 VA treatment record reflects the Veteran's complaint of constant nasal congestion. In September 2015, assessments of sinusitis and allergic rhinitis were noted, and additional VA treatment records include such diagnoses in the past medical history and problem lists. However, no opinion as to the etiology of these diagnosed respiratory disorders has been offered. Thus, a remand is necessary in order to obtain an addendum opinion addressing the Veteran's contention that his variously diagnosed respiratory disorders are a result of his military service. 3. Entitlement to service connection for peripheral neuropathy of the BUE, to include as secondary to a cervical spine disorder. As noted in the Board's August 2020 remand, the Veteran has alleged his peripheral neuropathy of the BUE is a result of cervical strain. As previously noted, the issue of entitlement to service connection for a cervical spine disorder remains on appeal and is pending the scheduling of a Board hearing. Therefore, the service connection claim for the former is inextricably intertwined with the latter and adjudication must be deferred pending resolution of the latter. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Return the record to the VA examiner who conducted the Veteran's February 2020 respiratory disorders examination. The record and a copy of this Remand must be made available to the examiner. If the February 2020 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the following inquiries: (A) Identify all current respiratory disorders that have been diagnosed during the pendency of the Veteran's June 2010 claim, even if such is asymptomatic or has resolved. (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any currently diagnosed respiratory disorder had its onset in, or is otherwise related to, any incident of the Veteran's military service, to include his alleged exposure to environmental hazards therein or his reported symptoms of shortness of breath noted on his separation examination. A rationale for any opinion offered should be provided 2. After completing development regarding the pending claim for service connection for a cervical spine disorder, and undertaking any other development deemed appropriate regarding the claim for service connection for neuropathy of the bilateral upper extremities, readjudicate the claim, to include as secondary to a cervical spine disorder. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination, if scheduled, may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. CLAIRE M. DAVIDOSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, Associate 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.