Citation Nr: 21008725 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-40 906 DATE: February 17, 2021 ORDER Entitlement to service connection for a respiratory disability, secondary to asbestos and trichloroethylene exposure, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s respiratory disability is etiologically related to service. CONCLUSION OF LAW The criteria to establish service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1975 to October 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington denying the claim as there was no evidence of a current diagnosed disability or an event, disease or injury in service. In July 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. This claim was remanded by the Board for further development in April 2019. The Board observes that the requested development has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a respiratory disability, secondary to asbestos and trichloroethylene exposure Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection the evidence must show: (1) a present disability; (2) an 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that exposures to asbestos and trichloroethylene during service caused his current respiratory disability. The Veteran's treatment records show a diagnosis of bronchiolitis. Therefore, as the Veteran has a current diagnosis, the first element of service connection has been met. With respect to an in-service disease or injury, the Veteran's service treatment records show no treatment for a respiratory condition. As such the second element of service connection has not been met. Accordingly, it is not possible to find evidence of a medical nexus to support a grant of service connection for a respiratory disorder. Specifically, the Veteran’s DD 214 does not list a specific Naval occupational specialty, but other evidence indicates that the was an Aviation Boatswains Mate which is associated with a likelihood of exposure to asbestos. The Veteran’s service treatment records reflect a January 1979 clinic visit after the Veteran passed out in the airport and was checked for diabetes. There were no visits for a respiratory condition. Upon separation, the Veteran’s October 1979 chest x-ray was within normal limits and his separation clinical examination was normal. Private treatment records reflect a comprehensive pulmonary work-up between August 2011 and February 2012 due to the Veteran’s complaints of dyspnea, wheezing and cough on exertion. The Veteran’s methacholine challenge study revealed an intermediate probability of asthma. A December 2011 computerized axial tomography (CT) scan of the chest revealed a calcified granuloma with no adenopathy and upper lung opacities compatible with respiratory bronchiolitis. In addition, the CT scan report noted that respiratory bronchiolitis is a smoking-related interstitial lung disease found in almost all smokers; when bronchiolitis is moderate or severe it can cause shortness of breath, restricted lung function and diminished diffusion capacity. After an extensive work-up, the private pulmonologist noted that it was unclear as to whether the Veteran had asthma or early emphysema, a type of chronic obstruction pulmonary disease. The pulmonologist strongly recommended that the Veteran discontinue smoking. He noted that the Veteran was pre-contemplative. Turning to the VA treatment records, in July 2012 the Veteran underwent a VA respiratory conditions examination associated with a medical opinion. The VA examiner noted after a review of the Veteran’s treatment records that the Veteran had not been diagnosed with a respiratory condition and did not have a history of asthmatic attacks, episodes of respiratory failure, bacterial infection of the lung, or a neoplasm. A July 2012 chest x-ray was normal without radiographic evidence of asbestosis or plaquing. Exercise capacity testing was not performed. Pulmonary function test (PFT) performed in July 2012 reflected normal results in all values. In May 2013 the VA examiner provided an addendum to his opinion to clarify the slightly abnormal FEV1/FVC percentage of 79 percent on PFT and an October 2011 VA visit that documented a diagnosis of obstructive lung disease. The examiner explained that the obstructive lung disease diagnosis arose out of a telephone encounter note with no notation other that shortness of breath. Further, the PFT was terminated early as the Veteran became dizzy, so the result was normal given that testing was discontinued before a complete result was obtained. The examiner reiterated that there was no objective evidence of a chronic respiratory condition. Between May 2013 and through July 2018, the Veteran was evaluated regularly at the VA for annual examinations and other medical conditions. There are numerous entries in which the Veteran acknowledged smoking a pack of cigarettes per day for the last 50 years. He consistently denied having shortness of breath and upon examination his breathing was not labored, and his lungs were clear to auscultation without wheezes. In October 2017 the Veteran underwent lung CT scan which showed underlying COPD changes due to smoking. The Veteran testified in his July 2018 hearing that he had never been diagnosed with chronic obstructive pulmonary disease (COPD). His symptoms were shortness of breath causing exhaustion. severe sinus problems that come and go, and lightheadedness causing him to pass out due to breathing problems. In the late 2011 early 2012-time frame he had a pulmonary consultation after which he was advised that he did not have any signs of COPD, asthma or bronchitis. The Veteran indicated that his respiratory symptoms had deteriorated since then. He was not receiving any treatment for his lung symptoms due to struggles with getting care through the VA, and his primary concern has been his back even though his COPD has a large effect on his health. He testified regarding a hospitalization at a private facility after passing out and hitting his head but nothing being done to evaluate his breathing problems. The Veteran believed his breathing problems stemmed from his Navy service because of his exposure to a high toxicity solvent, trichloroethylene, that the EPA tried to ban in the 1970s. He testified that his exposure occurred every three months when he washed areas of the ship with trichloroethylene without rubber gloves in enclosed spaces with poor ventilation, while breathing in the trichloroethylene. In a January and February 2019 VA clinic visits the Veteran denied having respiratory problems. In an April 2019 neurology consultation, the Veteran was seen for seizures which he described as “blackouts.” He reported 8 blackouts since 2006. In August 2017 he blacked out and hit his head on the concrete resulting in hospitalization. The Veteran denied having shortness of breath, coughing, wheezing, coughing up blood or apnea. In June and December 2019 visits the Veteran denied having shortness of breath; upon examination his breathing was unlabored without wheezes. Private treatment records reflect a September 2020 chest x-ray within normal limits. An October 2020 PFT diagnosed an irreversible airway obstruction with restriction of lung volumes. The Veteran underwent an in-person VA examination for respiratory conditions in November 2020. After a review of the Veteran’s medical records, examination and clinical interview of the Veteran, the examiner concluded that it is less likely than not that the Veteran’s current diagnosis of respiratory bronchiolitis was incurred in or caused by respiratory disabilities during the Veteran’s military service, including asbestos and trichloroethylene exposure. As rationale he observed that there were no complaints of lung symptoms in service and no documented chronic lung condition or treatment during service. The Veteran has not been diagnosed with reactive airway disease (RAD) which could occur with environmental exposure to trichloroethylene during service but would resolve when the exposure ended. The first time the Veteran sought treatment for lung symptoms was in 2009, 20 years after any exposure ended with service separation. The lung CT scans show characteristics of smoke inhalation injury. The typical findings of asbestos-related lung disease were not present. The Board notes that the Veteran has testified in support of his claim. As a lay person he is competent to testify to observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, as a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability); Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to provide medical conclusions as to whether a disability is due to military service. See Buchanan v. Nicholson, 451 F.3d 1331 -37 (Fed. Cir. 2006). Therefore, to the extent that the Veteran is claiming that his respiratory disability was incurred during active duty, he is not competent to comment as to the etiology of the disability, as the relationship goes beyond an immediately observable cause-and-effect relationship. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In consideration of the negative nexus opinions and lack of positive medical opinion to contradict the negative nexus opinions, there is no basis for a grant of service connection for a respiratory disability. Accordingly, the Board finds that the claim of entitlement to service connection for a respiratory disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert V. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.