Citation Nr: 21007175 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 12-27 418 DATE: February 8, 2021 ORDER Entitlement to service connection for COPD, to include as due to asbestos exposure is denied. Entitlement to service connection for hypertension, to include as due to an acquired psychiatric disability is denied. Entitlement to service connection for esophageal cancer, to include as due to asbestos exposure is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s COPD began during active service, or is otherwise related to an in-service injury or disease, to include asbestos exposure. 2. The preponderance of the evidence is against finding that the Veteran’s esophageal cancer began during active service, or is otherwise related to an in-service injury or disease, to include asbestos exposure. 3. The Veteran does not have a diagnosed hypertension disability for VA purposes during the appellate period. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD to include as due to asbestos exposure are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for esophageal cancer to include as due to asbestos exposure are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to November 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board on two occasions, in May 2018 and October 2018. Further development was requested, including issuance of an SSOC and verification of asbestos exposure, respectively. Service Connection Generally, to establish service connection a Veteran must show: “(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 incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Secondary service connection may be granted for a disability that is proximately due to a service-connected disease or injury, or that a service-connected disease or injury aggravated (increased in severity) the nonservice-connected disability for which service connection is sought. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.310. 1. Entitlement to service connection for COPD, to include as due to asbestos exposure The Veteran contends her COPD disability is related to asbestos exposure in service. The Board concludes that, while the Veteran has a current diagnosis of COPD, and evidence shows that she had some asbestos exposure in service, the preponderance of the evidence weighs against finding that the Veteran’s COPD began during service or is otherwise related to an in-service injury, event, or disease. In this regard, the Board notes that the Veteran has a diagnosis of COPD. See September 2020 VA examination. Therefore, the first element of service connection is conceded. As to her claimed asbestos exposure in service, the Board notes that review of the Veteran’s DD form 214 shows that her MOS was Medical Specialist. In statements received in June 2016, the Veteran described serving in a hospital. The Veteran’s MOS is analogous to the specialties of Hospitalman or Hospital Corpsman, which involve a “minimal” probability of asbestos exposure. Therefore, minimal asbestos exposure is conceded. Additionally, the Veteran stated in March 2010 that she worked in a hospital at Fort Sam Houston as an attendant to burn patients, and that her housing barracks had a significant amount of asbestos. Accompanying this statement is an article indicating that there was construction and renovations at the Ft. Sam Houston barracks. In August 2020, a development letter was sent to the Veteran asking her for corroborative information, regarding the extent, time, and frequency of her asbestos exposure. No response is of record. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA treatment records show the Veteran was not diagnosed with COPD until January 2003, 34 years after her separation from service. While the Veteran is competent to report having experienced symptoms of breathing difficulties since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of COPD. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The record contains conflicting medical opinions regarding whether the Veteran’s COPD is at least as likely as not related to an in-service injury, event, or disease, including asbestos exposure. The September 2020 VA examiner opined that it was not. The rationale was that the Veteran’s exposure to asbestos was of minimal duration and unknown intensity; there are no findings of pulmonary asbestosis on CT scanning; asbestosis causes a restrictive pattern on pulmonary function testing, and dyspnea on exertion with air hunger out of proportion to PFT findings; medical literature does not support asbestos as being a causal factor for COPD; and the more likely cause of her COPD is her 30 pack per year smoking history. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Private practitioner M.G. opined in a June 2016 letter that though unable to state with certainty whether asbestos exposure or smoking history which caused the Veteran’s COPD, both the smoking and the asbestos exposure more likely than not caused it. The rationale was that the Veteran stopped smoking around 2000; and it is well recognized that COPD is also caused by occupational exposures, including asbestos which is present in construction materials. This opinion is, however, less probative than the VA examiner’s opinion. The rationale appears to be based on unverified information and on an inaccurate factual premise. VA has conceded minimal asbestos exposure based on her duties as medical specialist. Exposure to asbestos from construction in barracks has not been conceded, and the provider relies heavily on the Veteran’s self-reported information. Furthermore, the provider did not opine as to the likelihood of COPD being related to asbestos exposure. Rather, Dr. M.G. indicated being unable to state with certainty whether the COPD was caused by asbestos or smoking history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, the Board gives more probative weight to the September 2020 VA examiner’s opinion. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence of record, and specifically, the September 2020 VA medical opinion. As the preponderance of the evidence is against the claim for service connection, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection for COPD is denied. 2. Entitlement to service connection for esophageal cancer, to include as due to asbestos exposure The Veteran contends her esophageal cancer is related to asbestos exposure in service. The Board concludes that, while the Veteran has a current diagnosis of esophageal cancer, and evidence shows that she had some asbestos exposure in service, the preponderance of the evidence weighs against finding that the Veteran’s esophageal cancer began during service or is otherwise related to an in-service injury, event, or disease. In this regard, the Board notes that the Veteran has a diagnosis of esophageal cancer. See September 2020 VA examination. Therefore, the first element of service connection is conceded. The Veteran’s claimed asbestos exposure has been addressed in the previous section. Minimal asbestos exposure relating to her MOS as a Medical Specialist has been conceded. Therefore, the second element of service connection is met, and the only outstanding question is that of a nexus between service and her current disability. VA treatment records show the Veteran was not diagnosed with esophageal cancer until May 2007, 36 years after her separation from service. While the Veteran is competent to report having experienced lay observable symptoms since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of esophageal cancer. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The record contains conflicting medical opinions regarding whether the Veteran’s esophageal cancer is at least as likely as not related to an in-service injury, event, or disease, including asbestos exposure. The September 2020 VA examiner opined that it was not. The rationale was that the Veteran’s cancer is squamous cell carcinoma, and medical literature shows statistical connection between asbestos exposure and adenocarcinoma, not squamous cell carcinoma. The examiner cites a June 2019 medical study and an August 2005 study which conclude specifically that there is no relationship between squamous cell carcinoma and asbestos exposure. Additionally, the examiner reasoned that risk of asbestos disease increased with intensity of exposure and duration, and prolonged exposure is not indicated as compared to the years of exposure incurred by Navy electricians or boiler room workers. In this regard, the examiner cited the Veteran’s thoracic CT studies of record which indicate no fibrosis or pleural plaques which could in turn be indicative of pulmonary asbestosis. Finally, the examiner reasoned that the Veteran’s own oncologist indicated upon diagnosis that the likely cause of this cancer is her history of smoking a pack and a half of cigarettes per day for the previous twenty years, as well as heavy alcohol use. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Private practitioner M.G. opined in a June 2016 letter that though some studies have found an association between asbestos exposure and esophageal cancer, the overall results of epidemiological studies are mixed – and thus – the best that could be said is that the Veteran’s exposure to asbestos could be considered a contributing factor to esophageal carcinoma. This opinion is, however, less probative than the VA examiner’s opinion. The provider did not opine as to the likelihood of esophageal cancer being related to asbestos exposure. Rather, Dr. M.G. indicated that it was a potential contributing factor. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, the Board gives more probative weight to the September 2020 VA examiner’s opinion. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence of record, and specifically, the September 2020 VA medical opinion. As the preponderance of the evidence is against the claim for service connection, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection for COPD is denied. 3. Entitlement to service connection for hypertension, to include as due to an acquired psychiatric disability The Veteran contends that she has hypertension which is etiologically related to her service-connected psychiatric disability. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of hypertension and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104 (Note (1) to Diagnostic Code 7101). Under Diagnostic Code 710, a 10 percent disability evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, (Diagnostic Code 7101). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Review of the Veteran’s VA and private treatment records shows that do not contain a diagnosis of hypertension. While a VA provider stated in a March 2012 treatment note that the Veteran is a “hypertensive” female, and recommended indefinite use of a beta blocker in the setting of idiopathic cardiomyopathy, an associated treatment note the same day indicated that the Veteran should continue on a beta blocker since she had an episode of decompensated heart failure. Furthermore, the contemporaneous blood pressure reading was 122/80, which is within normal limits for VA purposes. Notably, review of VA treatment records in April 2005, July 2013 and December 2016 indicate negative findings for hypertension. Additionally, review of blood pressure readings throughout the appellate period are not indicative of hypertension, and there is no clinical diagnosis of hypertension of record. (Continued on the next page)   While the Veteran believes she has a current diagnosis of hypertension, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As there is no diagnosis of hypertension, there can be no valid claim for service connection, and the matter is denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.