Citation Nr: 21005890 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 12-04 209 DATE: February 2, 2021 ORDER Service connection for a respiratory disorder, including weakened lungs, scarring of the lungs, granulomas, and weakened immune system, is denied.   FINDING OF FACT The Veteran does not have a respiratory disorder. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, including weakened lungs, scarring of the lungs, granulomas, and weakened immune system, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to May 1974. The case is on appeal from a June 2009 rating decision. The Veteran testified at a Board hearing in October 2016. The case was most recently before the Board in May 2020. The Board granted service connection for a colon condition and anemia, and denied higher ratings for hearing loss. At that time, the Board also remanded the respiratory disorder claim for further development. Additional evidence was received subsequent to the most recent supplemental statement of the case issued in August 2020. As the evidence is not pertinent to the claim on appeal, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1305(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for a respiratory disorder. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Analysis The Veteran is seeking service connection for a respiratory disorder due to asbestos exposure in service, or alternatively, due to his service-connected valley fever. The Veteran asserts that due to his exposure to inhaling asbestos and his exposure to inhaling valley fever mold spores he has scattered calcified granulomas in his left lung and his respiratory system was weakened and damaged. The Veteran provided evidence that he was exposed to asbestos during service; the Veteran worked as a heating system specialist during service and explained that his responsibilities included replacing damaged asbestos insulation. Additionally, the Veteran was granted service connection for valley fever in 2017. Pursuant to the Board’s May 2020 Board remand, a medical opinion was obtained in August 2020 by a VA physician. In August 2020 a VA examiner reviewed the Veteran’s file and rendered his medical opinion that the Veteran does not have any current disability of the respiratory system. The VA examiner acknowledged that the Veteran had a pulmonary embolus, which the VA examiner explained is more accurately a condition of the vascular system rather than of the lungs. The VA examiner stated the pulmonary embolus is not related to asbestos exposure or related to valley fever. The VA examiner noted that asbestos does not weaken the immune system and, even though the Veteran may have been exposed to an environment where asbestos may have been present, there is no indication in any of the Veteran’s records or examinations that the Veteran has asbestos-related disease. The VA examiner stated the clinical signs and health effects of asbestos are well known and easily discerned. The VA examiner explained that asbestos-related disease is characterized by specific radiologic and physiologic findings and the Veteran has not manifest any of those specific findings. The VA examiner indicated the Veteran has no pleural or peritoneal plaques and his imaging studies and pulmonary function tests (PFTs) do not support a diagnosis of asbestos-related disease. The VA examiner stated the Veteran’s assertion that the finding of atelectasis is proof of asbestos exposure is incorrect. The VA examiner explained that atelectasis refers to a portion of the lung that is not fully inflated and that atelectasis has many causes, including the effects of gravity, poor inspiratory effort, obesity, or other unrelated conditions. Whereas asbestos causes a specific type of atelectasis called rounded atelectasis that is the result of pleural fibrosis entrapping a portion of the lung and preventing that portion from expanding. The VA examiner noted this occurs in the presence of pleural fibrosis which the Veteran does not have. The VA examiner stated the Veteran’s dependent atelectasis is due to a combination of decreased alveolar volume, increased perfusion, and the physiologic effects of gravity. The VA examiner indicated the minor dependent atelectasis noted in the Veteran’s records is commonly seen in elderly individuals. The VA examiner also addressed the Veteran’s private doctor’s unsigned 2016 letter, which the VA examiner considered a significant departure from the same doctor’s 2014 signed letter. The private doctor, who knows the Veteran from two colon resections, recognized no clear causal role for asbestos in 2014 and then in his 2016 letter speculates that an unnamed condition was at least as likely as not caused by or the result of both asbestos exposure and exposure to valley fever. The VA examiner states the doctor’s opinion is controverted by the absence of any signs of asbestos lung disease or of pleural or peritoneal plaques. The VA examiner counters the private doctor’s conclusions by reiterating that: the Veteran has not developed any asbestos-related disease; there is no plausible connection between asbestos and his claimed conditions; and there is no evidence in the record to support the doctor’s contention. As to the Veteran’s valley fever, the VA medical examiner states the Veteran, like most people who contract this disease, recovered with no complications or sequalae. The VA examiner states: the valley fever is not active; there are no complications or sequalae from the infection; and no disability is related to valley fever. The VA examiner asserts the Veteran’s reliance on the fact that he has five siblings who did not serve in the military and they have not encountered similar medical conditions is misplaced. The VA examiner also discounts the 2015 medical opinion of a private physical therapist assistant as unqualified to render an opinion on this matter; the physical therapist assistant worked with the Veteran to address his neck and back pain and opined that the Veteran is at least as likely as not of continuing to have pain all over his body as a result of symptoms related to the Veteran’s diagnosis of valley fever that is associated with his active military service. The VA examiner referenced the sworn affidavits of family members that assert the Veteran had no respiratory problems until a few years after his military service to refute the Veteran’s assertions that military service was responsible. The August 2020 VA examiner’s conclusions uphold the opinion of another VA examiner who conducted her examination in July 2018. She explained that the Veteran’s chest x-rays, computerized tomography (CT) scan, and PFTs were all normal, except for an extremely small nodule on the CT scan that the radiologist recommended a repeat scan for in a year if the Veteran was at high risk for cancer. Similar to the August 2020 opinion, the July 2018 VA examiner noted that the radiologist would have found plaques within the lung tissue if the Veteran was positive for asbestos. The VA examiner also stated there was no lung scarring or granulomas found. She also mentioned that weakened lungs would be captured by the PFTs, CT scan, and chest x-rays, but they were all normal. The July 2018 VA examiner stated there is no objective data to support asbestosis or the influence of asbestos exposure. The VA examiner concluded there was no evidence in the service treatment records to support a diagnosis of asthmatic bronchitis and the respiratory tests, including x-rays, CT scan and PFTs were essentially normal. The August 2020 VA examination and the July 2018 examination are consistent with the August 2011 VA examination which determined that there is no diagnostic evidence of any pulmonary condition. An earlier October 1994 radiology report comparing the prior September 1988 examination states the presence of scattered calcified granulomas, but also states that pulmonary vascularity is normal, that no focal infiltrates or masses are identified, and that there is no active pulmonary disease. Additionally, this is many years before the claim. (Continued on the next page)   Thus, the evidence shows that the Veteran does not have a current respiratory disorder, including not during the pendency of the claim or recent to the filing of the claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Multiple examinations by different medical care providers relying on objective data have found the Veteran to have normal lung function. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for a respiratory disorder, including weakened lungs, scarring of lungs, granulomas, and weakened immune system. While the Veteran may have been exposed to asbestos in service and is service connected for valley fever, the evidence of record does not document that the Veteran is currently suffering from a respiratory disorder or functional impairment of the lungs. Therefore, based on the VA examination results, service connection for a respiratory disorder must be denied because there is no current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that in the absence of proof of a present disability, there can be no valid claim). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for a respiratory disorder is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.L. Thomas 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.