Citation Nr: 21005763 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-15 967 DATE: February 2, 2021 ORDER Service connection for coronary artery disease (CAD) as secondary to asbestosis is granted. REMANDED The claim of entitlement to service connection for chronic obstructive pulmonary disorder (COPD) claimed as related to asbestos exposure is remanded. FINDING OF FACT Resolving reasonable doubt, CAD is as likely as not attributable to the service-connected asbestosis. CONCLUSION OF LAW The criteria for entitlement to service connection for CAD have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from January 1955 to March 1965. The Veteran died in January 2020. The appellant is his surviving spouse who has been substituted to pursue this appeal. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Newark, New Jersey. This case was previously before the Board in April 2019 at which time it was remanded for additional development. The appellant appeals the denial of service connection for CAD. Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as cardiovascular disease, may be presumed to be service-connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as “a substitute way of showing in-service incurrence and medical nexus.”) A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). After weighing the evidence, the Board finds in favor of the claim for service connection for CAD. To that end, prior to his death, the Veteran argued that his CAD was secondary to asbestos related COPD. While the Veteran is not service connected for COPD, the Veteran was granted service connection for asbestosis in September 2020. In an October 2020 opinion, Dr. F noted that CAD is caused by plaque buildup in the wall of the arteries that supply blood to the heart. He stated that plaque is made up of cholesterol deposits and that plaque buildup causes the inside of the arteries to narrow over time. He further explained that asbestosis is a chronic lung disease caused by inhaling asbestos fibers, and prolonged exposure to these fibers can cause lung tissue scarring and shortness of breath. There is no known literature, he found, that will state asbestosis will result in further buildup of cholesterol in the arterial walls. He, therefore, opined that it was less likely than not that the Veteran’s CAD was caused or aggravated by service to include secondary to his asbestosis. In another October 2020 opinion, Dr. T opined that it was more likely than not that the Veteran’s exposure to asbestos aggravated his CAD. Dr. T reasoned that the Veteran had a myocardial infarction in 1994 and that he underwent coronary artery bypass graft in September 2012. Dr. T further noted that treatment records document that in February 2010 the "physician noted that the Veteran had "nodule pleural thickening with "calcified pleural plaques perhaps related to asbestos exposure." The examiner stated that a study in Britain’s Journal of Occupational and Environmental Medicine has linked asbestos exposure to an increased risk of heart disease because of its inflammatory properties. The study, performed by England’s Health and Safety Laboratory, involved occupational exposure in Great Britain’s asbestos industry from 1971 to 2005. He found that the study supports that asbestosis is linked with aggravation of CAD. In November 2020, however, physician assistant, J.P. opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. She reasoned that the conditions of CAD and asbestosis are not medically related, and that CAD is a separate entity entirely from the asbestosis and unrelated to it. She explained that a thorough review of medical literature failed to demonstrate a causal relationship. She found that there was no objective evidence of aggravation of the CAD by the asbestosis and that CAD is not medically caused by asbestosis or asbestos exposure. The Board has weighed the positive and negative evidence of record and, in resolving reasonable doubt, finds that the criteria for service connection for CAD have been met. In making this determination, the Board finds that positive evidence has been submitted showing a link between the Veteran's now service-connected asbestosis and his CAD. The Board is mindful of the opinion of J.P. The Board notes, however, that while J.P stated that medical literature failed to demonstrate a causal relationship between CAD and asbestosis, Dr. T cited to medical literature and discussed at length a study that supports that asbestosis is linked with aggravation of CAD. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases. Owens v. Brown, 7 Vet. App. 429 (1995). Significantly, in making his determination Dr. T cited the Veteran’s relevant medical history and he discussed/cited a specific study on this matter. The opinions of J.P and Dr. F did not. The credible lay statements of record in conjunction with the medical opinion from Dr. T place the evidence at least in equipoise. Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran. 38 U.S.C. § 5107 (b); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. Accordingly, resolving reasonable doubt in his favor, service connection for CAD as secondary to the service-connected asbestosis is granted. REASONS FOR REMAND As above, this issue was last before the Board in April 2019, at which time it was determined that further development was needed to include obtaining a VA examination. In December 2019, the Veteran was afforded a VA examination. The VA examiner opined that the claimed asbestosis was at least as likely as not (50 percent or greater probability) incurred in or caused by the asbestos exposure during service. The examiner, however, noted that the Veteran was also diagnosed with COPD in which treatment is ongoing. According to online expert reference guide, UpToDate, cigarette smoking remains the number one cause of COPD. Per the Veteran's subjective statement, he was a one pack per day cigarette smoker for over 30 years and he quit approximately 40 years ago. The examiner stated that considering that COPD falls under the natural history of cigarette smoking, it is his medical opinion that the claimed COPD is less likely than not (less than 50 percent probability) incurred in or caused by exposure to asbestos during service. In a September 2020 rating decision, the Veteran was granted service connection for asbestosis. Service connection for COPD remained denied. While the Board has obtained an opinion addressing the relation between the Veteran’s COPD and his in-service asbestos exposure, an opinion has not been obtained that addresses the relation, if any, between the now service-connected asbestosis and the Veteran's COPD. On remand, an addendum opinion should be obtained to address this matter. The matter is REMANDED for the following action: Obtain a VA addendum opinion to determine the nature and etiology of the Veteran’s COPD. After review of the record the examiner must opine as to whether it is at least as likely as not (50 percent or greater possibility) that the Veteran’s COPD was caused or aggravated beyond its normal progression by the service-connected asbestosis. The VA examiner should provide a complete rationale for any opinions provided. The examiner must reconcile any opinion with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S. Willie 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.