Citation Nr: 21010309 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-18 292 DATE: February 24, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include asbestosis, chronic obstructive pulmonary disease (COPD), and bronchiectasis, is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of asbestosis during the pendency of the claim. 2. The Veteran’s COPD and bronchiectasis did not have onset during active service and are otherwise not related to active service, to include as due to exposure to asbestos. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, to include asbestosis, chronic obstructive pulmonary disease (COPD), and bronchiectasis have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Navy from July 1981 to June 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2014 and April 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a January 2016 rating decision found the claim service connection for an asbestos-related condition was reopened. However, the original October 2014 rating decision that denied entitlement to service connection for an asbestos related condition did not become final because the Veteran submitted additional medical evidence that was new and material to the claim within one year of the rating decision. As such, the original October 2014 rating decision is on appeal. 38 C.F.R. § 3.156(b). In June 2017, a videoconference hearing was held before a different Veterans Law Judge (VLJ) than the judge issuing this decision. A transcript of that proceeding is of record. The Veteran was afforded an opportunity for re-hearing after the first hearing judge retired. (See BVA Letter, November 6, 2020). However, the Veteran did not respond within 30 days and as such, the Board will proceed to consider his appeal. In March 2019, the Board remanded the Veteran’s appeal to the RO for further evidentiary development, to include requesting the Veteran to authorize VA to obtain any outstanding private treatment records and to obtain outstanding Social Security Administration (SSA) disability records. As there has been substantial compliance with the prior remand directives, the matters are properly returned to the Board for review. Entitlement to service connection for a respiratory disorder, to include asbestosis, chronic obstructive pulmonary disease (COPD), and bronchiectasis. The Veteran contends that he has a respiratory disorder which was caused by exposure to asbestos during his active duty service. The claim was originally for service connection for asbestos lung condition. The evidence below shows the Veteran has instead been diagnosed with chronic obstructive pulmonary disease (COPD) and bronchiectasis; thus, the Board has recharacterized the issue as noted on the first page of this decision, to ensure all diagnoses of respiratory conditions are considered. See Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009) (finding that a claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits “by referring to a body part or system that is disabled or by describing symptoms of the disability”). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (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 - which is the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A review of service treatment records document that the Veteran reported and was treated for an upper respiratory infection in August 1981. Otherwise, the Veteran’s service treatment records do not show a complaint, diagnosis, or treatment for a respiratory condition in service. Reports of medical examinations in November 1980, September 1981, and June 1983 indicate that his lungs were normal. In an undated Asbestos Exposure Questionnaire, the Veteran reported that he was exposed to asbestos and a medical department representative said that surveillance of the Veteran was not necessary because his exposure was low. Following active service, the Veteran underwent a VA examination in September 1985 and his lungs were clear and he did not report a breathing or respiratory problem. The earliest evidence of a respiratory disorder is an April 2008 private treatment record indicating the Veteran was treated for bronchitis, dehydration, and uncontrolled IDDM. In a January 2012 private treatment record, the doctor noted that the Veteran’s respiration was wheezing. He was treated again by the private doctor for bronchitis in September 2013. A September 2010 VA chest X-ray showed “no active disease.” The Veteran was awarded Social Security Disability in August 2012, but there was no indication of a respiratory problem in the available evidence. A December 2014 VA chest X-ray was unremarkable. A December 2014 VA primary care attending note stated that there was “no dyspnea noted. Lungs are clear throughout. Breath sounds are easy and even. Mild coughing non-productive with deep breath.” In a March 2015 VA pulmonary consultation, the Veteran reported that in service he was required to remove asbestos from steam pipes, sometimes without a mask. The doctor requested chest imaging, and an April 2015 CT scan of the chest showed “no evidence for diffuse interstitial septal thickening or pleural plaques. Mild bronchiectasis,” according to the radiologist. In April 2015, the Veteran called VA and said that he had airway widening which he said was linked to his asbestos exposure. A CT scan of the chest performed by VA in April 2015 showed no septal thickening or peripheral honeycombing. There was mild bronchiectasis more prominent centrally and in the lower lobes. No ground glass opacities were identified, and there was no consolidation, effusion, or pneumothorax. The radiologist found there was no evidence of diffuse interstitial septal thickening or pleural plaques but there was mild bronchiectasis. A December 2015 VA treatment record stated that the VA nurse had attempted to perform a pulmonary function test (PFT) on the Veteran but that the Veteran was unable to take a deep breath without coughing and therefore unable to complete the test. The nurse said that this was the fourth unsuccessful attempt to perform a PFT in recent months. In December 2015, seven individuals sent letters stating that they have known the Veteran for 20 years or more, that he was not a smoker to their knowledge, and that he was healthy before his military service. In December 2015, the Veteran wrote to VA. He stated that one of his duties during service was to remove asbestos and that he has had a cough since his discharge in 1983. The Veteran said that he had been diagnosed with COPD sometime in the last year and he said that COPD is known to be related to asbestos exposure. A VA medical opinion was prepared in January 2016. The VA clinician opined that it was less likely than not that the Veteran’s respiratory condition was incurred during service because an August 2015 chest X-ray showed no evidence of asbestosis, but only bronchiectasis, which the clinician said is unrelated to asbestos exposure. In March 2016, the Veteran called VA by telephone and argued that his April 2015 CT scan showed that damage to his lung tissue on the micron level was caused by asbestos exposure. A VA X-ray of the chest in March 2016 showed no infiltrate, effusion, or pneumothorax. Lung volumes were low, no pulmonary vascular congestion was noted, and there was no active disease. A VA EKG test performed in March 2016 showed a clear absence of signs of asbestos damage to the lungs. In September 2016, a VA doctor of endocrinology and diabetes, Dr. B., stated in an endocrinology consult note that the Veteran “also has severe lung disease due to asbestos exposure.” In November 2016, the Veteran submitted an article stating that Navy Machinist Mates are at risk for asbestos exposure. A November 2016 letter from a private hospital indicates that the records that the Veteran requested for a claimed hospitalization for pneumonia in 1984 and 1988 are no longer available as they were destroyed. In his November 2016 Notice of Disagreement, the Veteran said that his lungs were fine when he enlisted. He said that he was exposed to asbestos during his service. He said that the November 2016 letter from the private hospital shows that he was hospitalized for pneumonia in 1984 and 1988, and that on October 20, 2016, Dr. B. said that he had severe lung disease due to asbestos exposure in the military. The Veteran has said that a VA doctor prescribed him Symbicort, Tiotropium and Albuterol and that these prescriptions prove that he has lung damage due to asbestos exposure. A November 2018 VA chest X-ray found interval development of minimal patch infiltrate/ atelectasis in the right lower lung field compatible with pneumonitis. A December 2016 VA X-ray of the chest showed no infiltrate, effusion, or pneumothorax. The lung volumes were low. No pulmonary vascular congestion was noted and there was no active disease. The Veteran underwent a VA examination for respiratory conditions in January 2017. The examiner diagnosed COPD. The Veteran told the examiner that he was exposed to asbestos during the service and that he has never been a smoker, and he said that his lung condition is due to asbestos exposure. The examiner noted that the Veteran was diagnosed with severe COPD but not with asbestosis. The Veteran said that after leaving the service he worked in a factory and that work did not involve asbestos. He said that he has not worked in the past five years. The Veteran was unable to complete a PFT for the examination and said that when he takes a deep breath he starts coughing. The examiner said that chest X-ray showed no signs of asbestosis. “[A]lthough he did have asbestosis exposure in the Navy; he has no clinical signs of such.” The examiner said that the Veteran’s lung condition was less likely than not caused by his service because his chest X-ray does not show any evidence of asbestosis, but only showed bronchiectasis, which is not related to asbestos exposure. A VA chest X-ray performed in February 2017 was limited due to the Veteran’s low lung volumes. The radiologist said that the findings were suggestive of bronchitis and there was no obvious focal infiltrate identified. In June 2017, the Veteran testified at a hearing before the Board. The Veteran said that during his service, he was part of a team of seven or eight men assigned to remove the asbestos on his ship. The Veteran said that he knows that two of those men have died of mesothelioma and a third was one diagnosed with that condition. The Veteran said that Dr. B. and another VA doctor had determined that his sleep apnea is caused by asbestos exposure and said that Dr. B. prescribed him three respiratory medications which are meant for people who are suffering from asbestos exposure. The Veteran also said that VA is withholding treatment from him because to treat him would be to admit that he was exposed to asbestos. The Veteran agreed to get a written statement from Dr. B. about the cause of his lung condition. He said that his respiratory symptoms began around June 1999. In June 2017, a private Dr. M. wrote a letter for V. stating that the Veteran suffered from asbestos exposure in service. Dr. M. wrote that his office has requested lung therapy for the Veteran’s pneumonia and sleep apnea and that the treatment is medically necessary. A VA chest X-ray performed in February 2018 was limited due to the Veteran’s inability to take a deep inspiration, but found no paradoxical movement or abnormality. A CT of the chest in February 2018 found minimal atelectasis/ scarring on the lower lobes but no lung nodules or pleural plaques identified. An October 2018 VA primary care attending note said that a high-resolution chest CT scan showed mild bronchiectasis and that the Veteran was using Symbicort, Albuterol and Spiriva because he was concerned about developing mesothelioma. The doctor said that the Veteran’s last CT scan of the chest, in February 2018, showed no pleural plaques. The Veteran underwent another CT scan of the chest in February 2019. The impression was of no lung nodules or pleural plaques. In July 2019, a letter from VA Dr. S. said that the Veteran has uncontrolled diabetes, hypertension, and COPD. The letter said that the Veteran is a lifetime nonsmoker and has a history of asbestos exposure during service in the Navy. The letter said that the Veteran has chronic shortness of breath with exertion and chronic cough and in April 2015 he showed mild bronchiectasis. The letter said that the Veteran is being treated for pulmonary hypertension. In July 2019, the Veteran wrote to VA and stated that his diabetes is caused by COPD because the COPD makes it impossible for him to exercise. The Veteran also attached a private hospital record which he said indicates that he will die between age 55 and age 63. Applying the criteria for service connection, the record does not contain a diagnosis of asbestosis. Without competent evidence of a diagnosis of asbestosis, the Board must deny the Veteran’s claim for that specific condition. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The Veteran does have diagnoses of COPD and bronchiectasis, and the first element of service connection is present for those conditions. Shedden, 1166-67. The Board concedes exposure to asbestos in service because the Veteran has alleged exposure to asbestos and it is consistent with the duties of his military occupational specialty (MOS) as a machinist mate, and VA has conceded that Navy veterans with an MOS of machinist mate had probable exposure to asbestos in service. See VA M21-1 Adjudication Procedures Manual, IV.ii.1.I.3.d. Thus, the second element of service connection is present. Shedden, 1166-67. However, the evidence is against a finding that the Veteran’s COPD and bronchiectasis were caused by his exposure to asbestos. The January 2017 VA medical opinion stated that the Veteran’s condition was less likely than not related to asbestos exposure in service because the recent chest X-ray showed no signs of asbestosis and instead showed “bronchiectasis, which is not related to asbestos exposure.” The January 2017 medical opinion holds substantial probative value as it is based on an in-person examination and review of the Veteran’s medical records and it is consistent with the separation examination in 1983, the 1985 VA examination showing normal lungs, and the imaging performed by VA in December 2014, April 2015, March 2016, December 2016, February 2017, February 2018, February 2019, which showed no evidence of asbestosis. The Board notes that the record does not contain a medical opinion that the Veteran’s current lung condition was caused by his military service, to include asbestos exposure. The Veteran has pointed to several statements by VA medical personnel which he said are medical opinions that his respiratory condition is caused by asbestos exposure, such as the September 2016 statement in an endocrinology consult note by endocrinologist Dr. B. that the Veteran “also has severe lung disease due to asbestos exposure.” The Board notes that several such statements appear in the Veteran’s VA treatment records and, as they have no rationale or explanation for that conclusory statement and they seem to be based on the Veteran’s representations to the doctors, they are inadequate for VA rating purposes. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board acknowledges the Veteran’s December 2015 letter in which he stated that he has had a cough since his separation from service in 1983. The Board finds that the December 2015 statement is not credible because it contradicts the Veteran’s testimony before the Board in June 2017 that his symptoms began in 1999 as well as the June 1983 report of medical examination and September 1985 VA examination which found the Veteran’s lungs unremarkable. Although the Veteran believes his COPD and bronchiectasis are related to his asbestos exposure, the Veteran is not competent to provide a medical nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of 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 he 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). The Veteran has argued that the November 2016 letter from the private hospital stated that he was hospitalized for pneumonia in 1984 and 1988. The letter states “the requested medical records for his hospitalization for pneumonia in 1984 and 1988 are no longer available. The hospital keeps records for seven years.” The letter does not state that the Veteran was hospitalized for pneumonia at those times. As such, the November 2016 letter does not weigh in favor of the Veteran’s claim. For the reasons set forth above, the preponderance of the evidence is against a finding that the Veteran’s respiratory disorder is related to his service. Accordingly, service connection is denied. 38 C.F.R. §§ 3.303, 3.304. 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, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. The record does not contain a VA examination or medical opinion for sleep apnea. The Veteran was diagnosed with moderate sleep apnea syndrome in a December 2014 private sleep study. The October 2020 Appellate Brief refers to a 2015 study which showed a relationship between chronic musculoskeletal pain and sleep apnea. The Veteran is currently service-connected for a right shoulder strain and right shoulder ankylosis. VA must order an examination when there is competent evidence of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability may be associated with the Veteran’s service or another service-connected disability; and there is insufficient evidence for VA to decide the claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Here, a remand is necessary for a VA examination to determine the etiology of the Veteran’s sleep apnea, including the possibility that it is secondary to his service-connected shoulder condition. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from December 2019 to the present. 2. Schedule the Veteran for a VA examination for sleep apnea. The examiner must review the claims file. The examiner’s attention is directed to the December 15, 2014, diagnostic sleep study report diagnosing moderate sleep apnea syndrome. See Medical Treatment Record – Non-Government Facility, March 11, 2016, page 9. The examiner is asked to provide a response to the following: Is the sleep apnea at least as likely as not related to service, including exposure to asbestos? Is the sleep apnea at least as likely as not proximately due to the Veteran’s service-connected right shoulder strain and/or right shoulder ankylosis? (Continued on the next page)   Is the sleep apnea at least as likely as not aggravated by the Veteran’s service-connected right shoulder strain and/or right shoulder ankylosis? Provide a rationale to support the opinion(s). D. C. JOHNSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.