Citation Nr: 21076759 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 13-25 514 DATE: December 27, 2021 ORDER Entitlement to service connection for a lung disability, to include as due to in-service asbestos exposure is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's lung disability is related to an in-service injury or disease, including asbestos exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for a lung disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1975 to September 1979. The Veteran died in April 2018. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision. In September 2014, prior to his death, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The above claim for service connection was remanded by the Board in May 2015, October 2017, August 2020, March 2021, and August 2021. That development having been completed; the claim has returned to the Board. Entitlement to service connection for a lung disability, to include as due to in-service asbestos exposure is denied. Prior to the Veteran's death, he maintained that he had a lung disability that was related to in-service asbestos exposure that he sustained aboard the U.S.S. Constellation and U.S.S. Kitty Hawk. See September 2014 Hearing Transcript. For the reasons discussed below, the Board finds that service connection is not warranted. Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Concerning a current disability, the Veteran's claims folder contains many diagnostic studies demonstrating lung disabilities. A March 2010 chest X-ray showed COPD with no evidence of acute cardiopulmonary disease. There were no calcified pleural plaques seen to suggest the presence of asbestosis. The impression was noted as COPD without acute cardiopulmonary disease. A pulmonary function test (PFT) showed a severe obstructive lung defect. A March 2010 Compensation and Pension Examination provides that the Veteran has a diagnosis of COPD as a long-term smoker with no current evidence specific to asbestosis. A January 2014 Samaritan Albany Pulmonology-Pulmonary Function Laboratory treatment record states that the Veteran has a diagnosis COPD. The Veteran's private treatment records also demonstrate that the Veteran had a diagnosis of emphysema. February 2015 chest X-ray findings demonstrated hyperinflation compatible with history of obstructive pulmonary disease and coarsened markings of the lung bases, which may reflect chronic bronchitis without airspace consolidation or pneumothorax. There are possible small pleural effusions versus blunting relating to scar formation. There is evidence of aortic atherosclerotic disease. Later chest X-rays confirmed that pleural effusions were not present. Additional chest X-rays in showed advanced COPD, severe emphysema, and pneumonia. Therefore, the Veteran's post-service treatment records show he had a lung disability. Regarding an in-service incurrence of a disease or injury, the Veteran advised that he was exposed to asbestos particles or fibers from insulation that was used on piping throughout the ships he was stationed aboard in berthing areas, bathroom and shower areas, dining areas, and all work areas. See September 2010 Notice of Disagreement. Importantly, the Agency of Original Jurisdiction (AOJ) conceded that the Veteran was exposed to asbestos during his active service. The Board notes that the Veteran was competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additional evidence supports the Veteran's statements that he was exposed to asbestos during his active service. The Veteran's service personnel records demonstrate that he served aboard the U.S.S. Constellation and U.S.S. Kitty Hawk. Accordingly, the Board finds the Veteran's account of in-service asbestos exposure to be credible and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Further, the Board finds no basis in the record to question the Veteran's credibility regarding his statements. The Veteran's claims folder contains several medical opinions disassociating his lung disability from his in-service asbestos exposure. A May 2015 VA medical opinion concludes that the Veteran's claimed disability is less likely than not related to his service. The medical opinion states that asbestos exposure does not cause COPD. The Veteran has PFT findings that are characteristic for COPD, but not characteristic for asbestosis. Asbestosis is associated with a restrictive pattern on PFT testing and the Veteran's pattern is consistent with obstruction. The Veteran does not have evidence of asbestos-related changes on available chest imaging. Medical literature provides that the characteristic lung function abnormalities in patients with asbestosis includes reduced lung volumes, particularly the vital capacity and total long capacity; diminished single breath Diffusing Capacity of Lung for Carbon Monoxide (DLCO); and decreased pulmonary compliance; absence of airflow obstruction by spirometry (normal ratio of the forced expiratory volume in one second to forced vital capacity). The Veteran has elevated lung volumes consistent with air trapping found in emphysema. He has decreased DLCO also likely due to emphysema. He has non-reversible obstruction on spirometry. A September 2020 medical opinion states that the Veteran's end-stage COPD was less likely than not caused by his in-service asbestos exposure in service. COPD is not caused by asbestos. Further, the Veteran had a long history of nicotine exposure, which is likely the cause of his COPD. His 2017 CT scan did not show any evidence of findings concerning for asbestosis. A September 2021 medical opinion states that a review of the medical record and current medical literature suggests that the Veteran's COPD was less likely than not primarily due to asbestos exposure. The medical record suggests asbestos exposure. However, the Veteran's COPD is more likely primarily due to his long smoking history of 36 pack-years). The Veteran's asbestos exposure damaged his lung, though the Veteran does not have objective findings of asbestosis, pleural plaques, or restrictive PFT patterns. Rather, the Veteran has COPD findings. His in-service asbestos exposure increased the risk of developing COPD but did not primarily cause it. The medical opinion concludes that if the Veteran was not a heavy smoker, it is less likely than not that he would have developed COPD just from the asbestos exposure alone. The medical opinion provides that the medical literature considered by the examiner was "Asbestos-induced lung diseases: an update" published in a medical journal entitled Translational Research in April 2009 and "Asbestos: When the Dust SettlesAn Imaging Review of Asbestos-related Disease" published in a medical journal entitled Radiographics in October 2002. The Board finds the above medical opinions, viewed in conjunction, disassociating the Veteran's lung disability from his in-service asbestos exposure to be especially probative as the opinions represent the informed conclusion of medical professionals and are supported by thorough explanations and are based on a review of the Veteran's medical history, relevant medical literature, the clinical findings made through diagnostic testing, and the symptomatology reflected in the medical and lay evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran's claims folder contains several private medical opinions submitted by the Veteran. A January 2014 medical opinion from G.N.G., Jr., M.D. The medical opinion states that G.N.G. is treating the Veteran for COPD and since his hospitalization he has made significant progress and quit smoking. In reviewing the Veteran's pulmonary function tests back to 2005, he has severe disease and has had significant progression since that time. He reports a history of asbestos exposure during his service in the Navy. He also had exposure to smoke and chemicals as part of his employment as a firefighter following his active service. It is impossible, after the fact, to allocate specific percentages of pulmonary impairment to each of these factors. However, it is likely that they contributed to his current condition. The Veteran's claims folder also contains a July 2015 medical opinion from V.J.G., M.D., of the Corvallis Clinic, provides that the Veteran has very severe COPD, most recently with exacerbation in January 2015 that was complicated by acute chronic respiratory failure. This has resulted in post-critical illness syndrome. The Veteran has a history of asbestos exposure during his service in the Navy. Occupational smoke and related chemicals occurred as part of his employment as a firefighter. Although he has a smoking history, it is more likely than not that some of these exposures contribute to his current pulmonary status. A December 2017 medical opinion from V.J.G., M.D., again states that the Veteran has very severe COPD and most recently had three exacerbations between September and November 2017. One exacerbation was complicated by acute chronic respiratory failure requiring hospitalization. The medical opinion notes that the Veteran has in-service asbestos exposure and post-service occupational smoke exposure as a firefighter. Asbestos is not recognized as a direct cause of COPD. However, epidemiology supports that environments that expose individuals to asbestos typically are associated with exposure to other occupational exposures, such as dusts, vapors, and smoke, which can contribute to COPD. While the Veteran has a history of smoking, it is more likely than not that these exposures have contributed to his current pulmonary status. The Board notes that the above private medical opinions essentially provide that the Veteran's in-service asbestos exposure contributed to his COPD. While the Veteran's private physician (G.N.G., Jr., M.D.) did note, in a January 2014 statement, that the Veteran's asbestos exposure was one of several factors contributing to his COPD, no further explanation or discussion was provided. Therefore, the opinion lacks probative value. The Veteran's private physician (V.J.G., M.D.), in his July 2015 and December 2017 statements, acknowledges that asbestos is not recognized as a direct cause of COPD. The doctor instead attributes the Veteran's COPD to exposure to other occupational exposures, such as dusts, vapors, and smoke. Assuming, without deciding, that the Veteran was exposed to dusts, vapors, and smoke during service, the doctor provided no rationale for his opinions. Therefore, these opinions attributing the Veteran's COPD to in-service exposure to dusts, vapors, and smoke also lack probative value. To the extent that the Veteran indicated that his lung disability was related to in-service asbestos exposure, the Board finds that he was not competent to offer an opinion as to the link between his current diagnosis and his active service, as such a finding requires a level of medical expertise which the Veteran, as a layperson, does not possess. See Layno, 6 Vet. App. at 469-71 (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise); Jandreau, 492 F. 3d at 1376-77 (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr, 21 Vet. App. at 309 (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"). While the Veteran's statements would be competent as to his observations of lung symptomatology, such as dyspnea and wheezing, to the extent these symptoms could be viewed through his senses, he is not competent to relate any post-service lung disability to his active service or any in-service asbestos exposure. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim for service connection, therefore that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.