Citation Nr: 21006163 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-46 408 DATE: February 3, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD) due to asbestos exposure is denied. Service connection for pleural calcification due to asbestos exposure is granted. FINDINGS OF FACT 1. It is less likely than not, that the Veteran’s COPD is due to his exposure to asbestos while serving on active duty in the military, as it is due to his long history of smoking. 2. It is at least as likely as not, that the Veteran’s pleural calcification is due to his exposure to asbestos while serving on active duty in the military. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD due to asbestos exposure have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for pleural calcification due to asbestos exposure have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from January 1965 to March 1968. The issue of service connection for COPD due to asbestos exposure was previously remanded by the Board for further development in April 2020. The matter is on appeal before the Board from a September 2015 rating decision. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. COPD due to asbestos exposure The Veteran asserts that he has a lung condition, specifically COPD, that is related to exposure to asbestos while serving on active duty in the military. A review of the Veteran’s service treatment records (STRs) does not reflect any diagnoses for any lung conditions, nor do they provide any complaints or treatments for any lung conditions. The Veteran’s DD 214 reflects that he served aboard the USS Corry and that his MOS was fireman. Asbestos exposure is conceded. The Veteran underwent a VA examination in April 2017, at which the examiner reported that it was clear that the Veteran had been exposed to asbestos. However, both the 2015 CT scan and the April 2017 lab results and radiographs did not contain any mention of any findings related to asbestos exposure. It was noted that the Veteran had a 30-year history of smoking, however, he reported no longer smoking. Thus, the examiner found that it was less likely than not (50 percent or less probability) that the Veteran’s COPD was incurred in or otherwise caused by exposure to asbestos while on active duty military service. Rather, the Veteran’s COPD is at least as likely as not due to his long history of smoking. The Board found that additional evidence needed to be addressed, and thus remanded the issue in April 2020 to obtain a new VA medical opinion that took into account VA treatment records with findings suggestive of asbestos exposure. To that end, the Veteran underwent a VA examination in September 2020, at which the VA examiner found the Veteran to have two separate respiratory conditions that were unrelated to each other. The examiner provided a diagnosis of COPD including emphysema due to smoking, and noted that the Veteran’s COPD condition causes dyspnea requiring inhaler use. The second diagnosis provided by the examiner was pleural calcification due to prior asbestos exposure, and the examiner noted that the condition is asymptomatic. The examiner explained that the major risk factor for COPD, as well as chronic obstructive bronchitis and emphysema, is cigarette smoking. Articles were cited to that reported that the severity of COPD is associated with the amount and duration of smoking, such as the number of packs and years smoked. Additional risk factors including passive smoke and biomass fuel use were noted, however, the examiner explained that asbestos exposure was not a risk factor for COPD, as asbestos does not cause chronic obstructive lung disease. An additional article was cited to that reported the spectrum of pleuropulmonary disorders associated with asbestos exposure to include asbestosis, pleural disease, and malignancies. After noting the article, the examiner stated that asbestos does not cause any obstructive lung diseases such as COPD, as COPD is usually due to smoking or other biomass fuel exposure. The examiner noted specific VA treatment records pertaining to the Veteran’s respiratory conditions. A chest x-ray from November 21, 2016 that suggested COPD. A chest CT from January 2017 that showed two major findings; 1. bilateral apical pleural calcification and calcified hilar lymph nodes, consistent with prior asbestos exposure, and 2. mild biapical paraseptal emphysematous change (COPD change). A pulmonary consult from April 18, 2017, stating “history of progressive dyspnea, history of obstructive lung disease, prior history of smoking, patient does have a history of asbestos exposure but no evidence of parenchymal disease seen on CT scan, and flow volume loop with obstruction. Etiology of dyspnea may be from COPD and weight gain. Plan includes starting Symbicort, continue Spiriva and albuterol pm.” The examiner explained that the pulmonary note documented two pulmonary conditions. One, asbestos exposure causing CT scan results of pleural calcification but as CT scan shows no parenchymal disease (asbestosis), the author stated that the Veteran’s progressive dyspnea was likely due to COPD, but not due to asbestos exposure related condition, pleural calcification. Two, COPD likely due to smoking causing progressive dyspnea treated with inhalers, new inhaler was added for progressive dyspnea. A primary care physician’s note from July 19, 2017, and other dates, providing: “Assessment of stable COPD, see CT chest 1/2017 shows scarring and emphysema consistent with asbestos exposure.” The examiner explained that the note was confusing as asbestos exposure pleural calcification on CT (written as scarring in this note) is bundled together with emphysema (COPD), documented as asbestos exposure, however, this is not accurate. The two conditions are separate conditions as pleural calcification on CT is due to asbestos exposure and COPD including emphysema is due to history of smoking. The examiner relayed that in the medical community, COPD, which is due to smoking and possibly other biomass fuel exposure, but not due to asbestos exposure, is a well-known fact. The examiner noted the cited articles confirming the nexus, and reported that asbestos, is a natural fiber that causes other lung conditions except COPD. As such, the examiner found that the Veteran’s current COPD, which is causing symptoms of dyspnea requiring inhalers, is less likely than not (50 percent or less probability) due to his active military service and not due to asbestos exposure as it is due to his history of smoking. However, the examiner noted that the Veteran’s current pleural calcification condition, an asymptomatic condition, is related to military service and asbestos exposure, if asbestos exposure was proven in the military. The Board finds the September 2020 VA examiner’s opinion highly probative, as the examiner provided a well-reasoned and thorough opinion. A further review of the Veteran’s VA treatment records does not provide any further findings of any greater significance than those relayed above and found in the September 2020 VA examination. Consideration is given to the Veteran’s contentions that his claimed condition of COPD was incurred in or caused by his exposure to asbestos while serving on active duty in the military. While lay persons are competent to provide opinions pertaining to certain medical issues, the etiology of COPD, as is specific to this case, is outside the realm of common knowledge for someone, such as the Veteran, who does not possess medical training, specialized expertise, or experience. Jandreau v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the Veteran’s assertions lack probative value pertaining to the etiology of his COPD. Based upon the foregoing, service connection for COPD as due to asbestos exposure is not warranted. The September 2020 VA examiner found that the Veteran’s COPD was less likely than not due to his active military service, to include his asbestos exposure, as it is due to his history of smoking. Additionally, the VA examiner provided citations to articles that lent additional weight to the opinion, and clarified the findings in VA treatment records that suggested findings consistent with exposure to asbestos. As such, service connection for COPD due to asbestos exposure is not warranted. However, the September 2020 VA examiner did find that the Veteran’s pleural calcification was related to his military service and asbestos exposure, if the Veteran had asbestos exposure in the military. Asbestos exposure has been conceded, and therefore, service connection for pleural calcification due to asbestos exposure is warranted. The Board notes that the evidence suggests that the Veteran’s pleural calcification is an asymptomatic condition, and therefore, the rating process should determine which respiratory symptoms are the result of the Veteran’s COPD, and which are the result of his pleural calcification. Accordingly, service connection for COPD due to asbestos exposure is denied, however, service connection for pleural calcification due to asbestos exposure is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.