Citation Nr: 21012672 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-19 243 DATE: March 4, 2021 ORDER Service connection for a lung disorder, to include as a result of asbestos exposure, for substitution purposes is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s pulmonary nodules, right lower-lobe scarring, atelectasis, and mild restrictive lung disease were the result of his active service, to include conceded exposure to asbestos. CONCLUSION OF LAW The criteria for service connection for a lung disorder, to include as a result of asbestos exposure, for substitution purposes have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1981 to May 1990. He died in March 2019 and his surviving spouse has been substituted as the Appellant. This matter was previously before the Board in December 2018 and December 2020 at which time it was remanded for further evidentiary development. Substantial compliance with the remand requests having been accomplished, the Board may proceed to consider the claim. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection To establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any 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). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. During his lifetime, the Veteran contended that his lung disorder was due to asbestos exposure in service while serving as a metal worker performing repairs in older buildings and working with heating, ventilation, and air conditioning (HVAC) units. In the July 2018 Statement of the Case, exposure to asbestos in service was conceded. The Veteran’s service treatment records (STRs) did not contain any complaints, symptoms, treatment, or diagnosis of a lung disorder. In December 2009, the Veteran was diagnosed with rectal cancer. In February 2010, a chest x-ray was abnormal with an irregular nodular opacity in the anterior basal segment of the right lower lobe laterally. The clinician stated that the rapid development of the opacity suggested it was benign. In January 2013, an x-ray revealed that the lung bases demonstrated minimal areas of atelectasis versus scarring. A June 2015 computed tomography (CT) scan demonstrated discoid atelectasis or scarring of both lower lobes. In October 2015, imaging showed a new nodule in the left lung and discoid atelectasis or scarring of both lung bases. At a November 2015 follow-up, it was noted that the nodule was suggestive of the Veteran’s previous exposure or welding. Subsequent CT scans demonstrated enlarging bilateral pulmonary nodules and metastasis of the Veteran’s rectal cancer. In March 2016, the nodules were presumed to be metastatic. The nodules increased in size and number over time. In a November 2016 letter, the Veteran’s treating clinician stated that he was currently under active care due to his pulmonary lesions, suggestive of metastatic disease. Following a December 2016 chest x-ray, a private clinician noted that numerous new bilateral pulmonary nodules were indeterminate but were worrisome for metastases. January 2017 CT scans demonstrated bilateral pulmonary metastases that improved in size and were asymptomatic. In April 2017, a pulmonary function test was conducted. Spirometry and lung volumes were consistent with mild restrictive lung disease. A May 2017 CT revealed prominent scarring at the right lung base posteriorly and interval improved appearance of multiple bilateral pulmonary nodules. The Veteran submitted several lay statements describing his in-service duties and medical articles and abstracts discussing asbestos exposure. Several VA opinions have been obtained regarding the claimed lung disorder. In April 2017, the Veteran underwent a VA examination at which nodules on the bilateral lungs was diagnosed. The examiner noted that the Veteran had metastatic colorectal cancer with evidence of pulmonary involvement based on CT imaging. The examiner determined that his metastatic cancer was at least as likely as not the cause of his reported symptoms and the diagnosed nodules. There was no evidence of pulmonary asbestosis. As the diagnosed bilateral pulmonary nodules were related to his diagnosed colon cancer, they were less likely than not incurred in or caused by asbestos exposure that occurred while working as a metal fabricating technician in service. Another VA opinion was obtained in May 2020. The clinician determined that the claimed lung disorder was less likely than not incurred in or caused by service, including conceded exposure to asbestos. He continued that pulmonary nodules are not established to be caused by asbestos exposure in the medical literature. The clinician referenced online medical research. He stated that the Veteran’s CT scans in April and May 2017 demonstrated right lower-lobe scarring and the April 2017 pulmonary function test reflected mild restrictive lung disease; however, such findings represented separate diagnostic findings from the aforementioned pulmonary nodules and were also unrelated to asbestos exposure. In December 2020, the VA clinician again determined that the Veteran’s claimed lung disorder was less likely than not incurred in or caused by service, including conceded exposure to asbestos. He stated that pulmonary nodules are not established to be caused by asbestos exposure in the medical literature. The clinician again referenced online medical research. He repeated that the CT scans demonstrated right lower-lobe scarring and the pulmonary function test demonstrated mild restrictive lung disease. Similarly, right lower lobe scarring as well as restrictive lung disease is not established to be caused by asbestosis in the medical literature in the absence of evidence of actual asbestosis which is typically represented by pleural plaques. This was not the case with the Veteran. An addendum opinion was obtained in January 2021. The clinician repeated his previous findings and added that atelectasis which was noted on several radiographic imaging studies was also not established to be caused by asbestosis in the medical literature in the absence of evidence of actual asbestosis which is typically represented by pleural plaques, which was not the case with Veteran. Service connection for a lung disorder, to include as a result of asbestos exposure, for substitution purposes is denied. Based on the foregoing, the Board finds that service connection for a lung disorder is not warranted. Although the Veteran had conceded exposure to asbestos, the preponderance of the evidence does not support that the lung conditions found via CT scans and pulmonary function test are the result of such exposure. There is no evidence of the onset of the Veteran’s lung disorder during service or for many years thereafter. The VA examiners’ opinions, taken in conjunction, found that the pulmonary nodules, right lower-lobe scarring, atelectasis, and mild restrictive lung disease were not the result of asbestos exposure without any evidence of actual asbestosis, represented by pleural plaques. This determination is supported by medical literature. They also concluded that the pulmonary nodules were the result of nonservice-connected metastasizing rectal cancer, which is supported by the private medical records in the claims file. The Board attaches significant probative value to the opinions as, taken together, they are well-reasoned, detailed, consistent with other evidence of record, and included consideration of the Veteran’s pertinent medical history. The Board notes that one clinician stated that a pulmonary nodule was suggestive of “exposure or welding.” However, the clinician did not discuss whether exposure referred to asbestos exposure in service and did not provide any supporting rationale for the statement. Further, the Veteran worked as a welder for more than 20 years post-service. As such, that statement alone does not provide sufficient support for service connection. The Board finds that the VA examiners’ opinions represent more persuasive evidence than the lone unsupported notation. The Board recognizes the Appellant’s belief that the Veteran’s lung disorder is related to his active service. However, she has not been shown to have the requisite medical experience and knowledge to determine the etiology of a complex medical condition. As such, her contention does not carry probative weight. The most competent and credible evidence of record demonstrates that the Veteran’s lung disorder is not the result of his service, including conceded asbestos exposure. Accordingly, service connection is not warranted. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.