Citation Nr: 21009255 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 19-32 206 DATE: February 22, 2021 ORDER Entitlement to service connection for a lung disorder, to include as related to exposure to asbestos, is denied. FINDING OF FACT The most probative evidence does not reach the level of equipoise as to whether any of the Veteran’s current lung disorders had onset during or are etiologically related to military service, to include exposure to asbestos. CONCLUSION OF LAW The criteria for entitlement to service connection for a lung disorder, to include as related to exposure to asbestos, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1964 to October 1966, with additional service in the Naval Reserve. The Board sincerely thanks him for his honorable military service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. The Veteran testified before the undersigned Veterans Law Judge during a virtual hearing in January 2021. A transcript of the hearing is associated with the claims file. The Board notes that the Veteran’s claim of service connection described his disorder as “COPD (asbestosis)”. Applicable law requires that VA consider a claim for benefits broadly to encompass the functional impairment due to a disorder, rather than for a diagnosis named on a claims form. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Therefore, the Board has recharacterized the issue on appeal. At the time of the Board hearing, the Veteran’s representative requested that the record be left open for 30 days in order to give the Veteran an opportunity to submit additional evidence. The 30-day period has elapsed, and there has been no additional submission from the Veteran or his representative. Accordingly, the Board will proceed with a decision on the claim. Legal Criteria – Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Entitlement to service connection for a lung disorder, to include as related to exposure to asbestos The Board finds that the most probative evidence does not reach the level of equipoise in the claim of entitlement to service connection for a lung disorder, to include as related to exposure to asbestos. Thus, the claim may not be granted. Medical records reflect that the Veteran has current diagnoses of chronic obstructive pulmonary disease (COPD), asbestosis with benign pleural plaques, and non-small cell lung cancer. See C&P Exam, September 2019; Medical Treatment Record - Non-Government Facility, August 2017. The Regional Office has conceded that the Veteran’s military occupation duties as a shipfitter had a “minimal expectation” of asbestos exposure. Thus, the question for the Board is whether there exists an etiological nexus between any of his lung disorders and his exposure to asbestos during military service. See Shedden, 381 F.3d at 1167. Service medical records show that the Veteran was treated for a productive cough in February 1965. Additionally, he sought treatment for a cold, sore throat, and productive cough in April 1965. In February 1966, the Veteran was diagnosed with an upper respiratory infection with a slightly productive cough. However, the clinicians did not indicate a problem with the lungs on any of these occasions. The Veteran’s separation examination was negative for a disorder of the lungs or chest in September 1966. In a report of medical history dated November 1966, he described his health as “good” and denied a history of shortness of breath, pain or pressure in the chest, or chronic cough. The Board has reviewed the Veteran’s private medical records, which show treatment for COPD, small cell lung cancer, and asbestosis. As to a possible connection between the Veteran’s naval service and asbestosis, the clinician, Dr. A.D., noted that the Veteran was exposed to asbestos for 3 years in the Navy, and then worked as a boilermaker with continued asbestos exposure. She found that “it would be difficult to differentiate how much the 3 years in the Navy contributed to [his disease] given his extensive exposure once he left the Navy.” In September 2018, the Veteran submitted an article regarding the risk of asbestos exposure aboard the U.S.S. Forrestal, where he was stationed during active duty service. The article stated, among other things, that “installing asbestos fireproofing in the design of marine vessels was required by law in the United States in the 1930s” and that “Forrestal made use of asbestos heavily, especially in ship’s boilers and engineering compartments, and to insulate pipes all over the ship. When this asbestos became friable, it could lodge in the lungs of those who breathed it, leading to the development of [disease].” Additionally, the Veteran submitted a non-precedential Board decision in which a sailor who served aboard the U.S.S. Forrestal was granted service connection for a lung disorder based on asbestos exposure. After reviewing the document, the Board observes that two medical doctors provided positive nexus opinions relating the claimant’s disorder in that case to asbestos exposure aboard the Forrestal. The Veteran underwent a VA examination in September 2019. He reported that he was exposed to asbestos while doing duct work in the laundry area during his active duty service, reporting an average exposure of about 16 hours. After service he reported working as a welder for 2 years, and then as a boilermaker until he retired at 64.5 years old. He endorsed a history of smoking about 1 to 1.5 packs per day for more than 50 years before quitting in 2016. After examining the Veteran and reviewing the claims file, the physician, Dr. S.G., observed diagnoses of COPD, small cell lung cancer, and asbestosis with benign pleural plaques, and opined that it is less likely than not that his lung disorders are related to military service, to include asbestos exposure. Initially, she found that the Veteran’s COPD and small cell lung cancer are related to his long smoking history and not to asbestosis. She explained that mesothelioma is the cancer due to asbestos exposure and that the Veteran has never been diagnosed with this type of cancer. Regarding asbestosis with benign pleural plaques, Dr. S.G. explained that the Veteran had “minimal” exposure to asbestos while on active duty, but then worked as a boilermaker from 1968 until his retirement. She noted that construction workers and boilermakers are most at risk of developing asbestos-related lung problems. Considering that the Veteran’s conceded exposure to asbestos in military service was minimal, Dr. S.G. found that the Veteran’s most important risk factor for asbestos lung disease is his post-military occupation as a boilermaker. She cited to medical literature indicating, among other things, that “no profession was more exposed to asbestos than boilermakers”, even boilermakers tools and clothing contained asbestos, and that when asbestos material is disturbed, the particles become airborne and workers who came into contact could inhale the “microscopic” and “invisible” particles. The study further indicated that “asbestos treated parts were continually moving” and that “workers were constantly exposed to airborne asbestos particles no matter what they were doing.” The Veteran submitted a disability benefits questionnaire (DBQ) completed by Dr. A.D. in October 2019. Dr. A.D. diagnosed the Veteran with a number of lung disorders. However, she did not provide a medical opinion stating that any of the disorders was at least as likely as not related to military service. The Veteran also submitted excerpts from online websites describing the use of asbestos in naval ships and shipyards, and information regarding the VA claims process for veterans who were exposed to asbestos. During the Veteran’s hearing, he testified, among other things, that he began to experience respiratory issues after being on the ship for about seven months. He stated he was coughing all the time, and went to sick bay where he underwent a procedure to drain congestion from his lungs. He indicated that he was diagnosed with bronchial pneumonia after his discharge, but that the physician who treated him had passed away. He stated that although he was exposed to asbestos after service, there were usually teams that would go and encapsulate the asbestos in the area before he arrived at the site. He indicated that the teams performed “pretty well” on most of the jobs. He described his experiences working with materials believed to contain asbestos during service, and testified about his smoking history. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise in the claim of service connection for a lung disorder, to include as due to exposure to asbestos during service. In reaching this conclusion, the Board has reviewed the medical evidence. Dr. S.G. opined that it is less likely than not that the Veteran’s lung disorders were related to asbestos exposure during military service. She cited the Veteran’s long post-service career as a boilermaker as the “most important risk factor.” As Dr. S.G. reviewed the claims file, and provided a persuasive medical opinion consistent with her professional expertise, the Board finds her conclusions to be of significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has reviewed the private medical records and DBQ submitted by Dr. A.D. Nevertheless, the Board observes that Dr. A.D. did not provide a medical opinion linking the Veteran’s disorders of the lungs to military service. The Board has considered the articles submitted by the Veteran about asbestos exposure on the U.S.S. Forrestal and in the Navy in general. However, the Board notes that the Veteran’s in-service exposure to asbestos is not disputed. Rather, the issue is whether there exists a medical nexus between the Veteran’s lung disorders and military service, which the most probative evidence of record does not support. The Board has reviewed the non-precedential decision submitted by the Veteran. Applicable regulations state that such decisions have no impact beyond the appeals decided therein. 38 C.F.R. § 20.1303. Moreover, in the case before the Board, there are no positive medical opinions linking a lung disorder to military service. The Board has considered the Veteran’s lay statements. However, the ability to opine as to an etiological link between his lung disorders and asbestos exposure during military service requires complex medical knowledge that is beyond the capacity lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, although he testified that his exposure to asbestos after service was usually mitigated by control teams, the record does not reflect that he has the required scientific expertise to state whether or not his work areas were, in fact, contaminated by asbestos. The medical opinion cited a study that boilermakers are one of the highest risk occupations for asbestosis, and did not indicate that such occupational exposure could be reduced in a medically significant way. As such, the Board affords higher probative weight to the competent medical evidence. The Board acknowledges the Veteran’s exposure to asbestos during military service. However, in order to support a grant of service connection in any given case, the evidence must rise to an “at-least-as-likely-as-not” threshold that a veteran’s disorder had onset during or is causally related to military service. 38 C.F.R. § 3.102. In this case, given the evidence of record, including the persuasive medical opinion finding that the Veteran’s disorders are not related to service, his long post-military career in an occupation known to be a risk factor for asbestos exposure, and the fact that his duties as a shipfitter would only create a “minimal expectation” for asbestos exposure, the evidence does not reach such a threshold. The Board is sincerely grateful for the Veteran’s honorable military service, and has sympathetically reviewed his appeal. However, without competent evidence of a nexus between the Veteran’s lung disorders and asbestos exposure during military service, the evidence does not reach the level of equipoise, and the appeal may not be granted. See 38 U.S.C. § 5107(a); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.