Citation Nr: 21013174 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-04 018 DATE: March 8, 2021 ORDER 1. Entitlement to service connection for a pulmonary disability, to include chronic obstructive pulmonary disease (COPD), emphysema, and lower lobe fibrotic changes, to include as being due to asbestos exposure, is denied. 2. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. A pulmonary disability did not have its onset during active service and is not otherwise related to active service, to include as due to asbestos exposure. 2. The preponderance of the evidence is against a finding that the Veteran has a current psychiatric disorder, to include PTSD under Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), American Psychiatric Association (2013). CONCLUSIONS OF LAW 1. The criteria for service connection for a pulmonary disability, to include chronic obstructive pulmonary disease (COPD), emphysema, and lower lobe fibrotic changes, to include as being due to asbestos exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1958 to August 1960. In December 2015, the Board remanded the claims for service connection for a pulmonary disability and a psychiatric disability for a medical opinion and development of in-service stressors. In July 2018, the Board again remanded the claims for an addendum medical opinion, a VA examination, and development of in-service stressors. The Board finds there was substantial compliance with this development. The case returns to the Board for further appellate review. Service Connection 1. Entitlement to service connection for a pulmonary disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 or injury incurred or aggravated during service. 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). The Veteran contends he has a pulmonary disability as a result of asbestos exposure in service. He states that he lived in barracks where asbestos was present in addition to working as a fireman in ship engine rooms. The Veteran’s wife states that he was diagnosed with COPD and emphysema in 1983, at which time, their family doctor tried to get the Veteran on breathing treatments unsuccessfully. The Veteran states that after returning from service, he had severe coughing first thing in the morning what would be considered a “smoker’s cough” even though he rarely smoked a pack a day. According to his doctor, his condition should have improved considerably after 10+ years of smoking cessation, but his pulmonary conditions have continued to worsen. He has no doubt his condition was permanently aggravated by exposure to asbestos. He feels some lung conditions are related to smoking but not all because some lung conditions are not normally associated with smoking. The Veteran notes other veterans from his ship have been affected by asbestos exposure, so he feels it is more likely his lung condition is caused by asbestos. The Veteran and his brother assert that he has had bronchitis since childhood. While this assertion raises the presumption of soundness, there is not clear and unmistakable evidence that the disability pre-existed service and was not aggravated by service. Therefore, the issue before the Board is service incurrence. Although the Veteran initially mentioned exposure to radiation, he affirmatively stated he was not claiming any disability as due to radiation. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for COPD. The reasons follow. As to evidence of a current disability, a January 2011 VA examination report shows that the Veteran was diagnosed with COPD, emphysema, and lower lobe fibrotic changes. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, service treatment records (STRs) show the Veteran was diagnosed with an upper respiratory infection and severe bronchitis in August 1959. However, the August 1960 service discharge Report of Medical Examination documents the lungs and chest were clinically evaluated as normal. This is indicative of the Veteran leaving service without a chronic pulmonary disability. The Board notes the VA has conceded the Veteran’s job as a fireman in ship engine rooms makes it highly probable the Veteran was exposed to asbestos. Thus, the facts establish that the second element of a service-connection claim is met as to in-service exposure to asbestos. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus. For example, the Board notes at the outset that the Veteran underwent a VA examination in January 2011, and the same examiner provided addendum opinions in May 2011 and June 2013. In June 2013, the examiner noted the issue went beyond his level of training and scope of practice. The Board finds the medical opinions provided by this examiner are inadequate since he states clearly that he believes the issue was beyond his expertise. As a result, the findings will not be discussed here. In October 2010, Dr. Hardison provided a positive nexus opinion. Dr. Hardison opines that with the Veteran’s pulmonary impairment with pulmonary densities and previous exposure to asbestos, that asbestosis would have to be a high consideration. This medical opinion does not include a rationale, nor does it rise to the required level of certainty. A medical opinion without a rationale has no probative value. In the August 2010 private treatment record, Dr. Hardison documents the Veteran stopped smoking 15 years earlier. A January 2011 VA examination documents the Veteran reported that he stopped smoking in August 2001. In the June 2011 Notice of Disagreement, the Veteran had written that he stopped smoking 12 years ago. The changing date for when the Veteran stopped smoking calls into question his overall credibility. In November 2013, a VA pulmonologist provided a negative nexus opinion. The examiner opined that the 2011 PFT showed FEV1 of 1.96, which was suggestive of moderate airflow obstruction. A CT scan in 2012 showed non-specific small pulmonary nodule as well as COPD changes, but no pulmonary fibrosis suggestive of asbestos-related pneumonitis. The examiner believed COPD was the primary pulmonary disease, which he wrote has no association with asbestos exposure. The Board affords this opinion high probative value as it was based upon a thorough review of the evidence of record, the examiner is a pulmonologist, and he provided a rationale for the conclusion that the Veteran’s COPD diagnosis was not related to asbestos exposure. In July 2015, Dr. Skaggs provided a positive nexus opinion. Dr. Skaggs opined that the Veteran’s long history of smoking was undoubtedly a great contributor to his current lung problem; however, he wrote that one would have to concede at a bare minimum, at least some effects upon his pulmonary condition from asbestos exposure. He explained that spirometry studies contain many factors which are consistent with both smoking and asbestos exposure. Dr. Skaggs noted that in an examination, dated August 1966, the Veteran reported shortness of breath on moderate exertion. He wrote smoking would not have caused shortness of breath at 26 years old, but exposure to asbestos would have caused shortness of breath. Dr. Skaggs noted the Veteran’s lung problems are jointly caused by smoking and asbestos exposure, and it is impossible to accurately determine the contribution of each. Dr. Skaggs noted the Veteran does not have asbestosis even though asbestos exposure contributes to his lung disease. The Board notes that in reviewing the August 1966 Report of Medical Examination that Dr. Skaggs based his opinion upon, it is clear that such record does not pertain to the Veteran. The 1966 record has a different name, birthdate, and social security number, and the Veteran left active service in 1960. A medical opinion based on inaccurate facts has no probative value. In July 2017, the Veteran received a VA medical opinion from a pulmonologist. The examiner opined that the Veteran’s pulmonary conditions are more likely than not related to his past 45 to 50 pack years of cigarette abuse, which the examiner wrote reportedly ended at least 10 years ago. The most recent CT scan did not show pulmonary nodules or pleural or mediastinal lesions. Routine chest x-rays from September 2014 forward all show no evidence of focal right middle lobe (RML) lung infiltrate. There has never been described any pleural or diaphragmatic plaques on imaging, either calcified or soft tissue. The Board affords this opinion high probative value as it was based upon a thorough review of the evidence of record including citations to various medical records in the file. In February 2019, the Veteran received a VA medical opinion. The examiner opined that the Veteran’s COPD, bronchitis, and fibrotic changes are less likely as not due to his in-service upper respiratory infection and severe bronchitis. He stated here is no evidence the Veteran had chronic bronchitis in service. The examiner explained that a one-time diagnosis of severe bronchitis does not lead to COPD/bronchitis, fibrotic changes decades later; there is no pathophysiological connection. The Veteran’s current lung disease is likely due to his .75 packs per day over 35 years. The examiner wrote that fibrotic lung disease is associated with tobacco smoking. Numerous epidemiologic studies indicate that tobacco smoking is overwhelmingly the most important risk factor for COPD. As an example, a retrospective cohort study found that subjects who smoked cigarettes throughout a 25 year observation period were more likely to develop COPD than nonsmokers, 36 percent vs. 8 percent. The Board affords this opinion high probative value as it was based upon a thorough review of the claims file, and the examiner cited to medical literature when forming the opinion. In November 2019, Dr. Blevins provided a positive nexus opinion. She opined that the Veteran’s in-service asbestos exposure was more likely than not a substantial contributor and cause for the Veteran’s COPD. She noted the Veteran’s smoking could also not be ruled out as a contributor, which led to the development of COPD but wrote that it would be impossible to apportion the cause of his COPD between his history of asbestos exposure and smoking. The Board affords Dr. Blevins opinion significantly lessened probative value, as she cited to a study based on individuals who had been exposed to airborne toxins. The abstract says that the aim of the study was to find out if occupational exposure to dust, fumes, gases, “especially among never-smokers, increased the mortality from [COPD].” The Veteran is a former smoker, and this study was aimed at never-smokers, which would not apply to his circumstances. Additionally, this study pertains to mortality from COPD, and the Veteran is still alive. Further, as part of her rationale for concluding that asbestos exposure equally contributed to the Veteran’s COPD, she cited to Dr. Skaggs’s opinion, which, as noted above, was based on an inaccurate factual premise that the Veteran had shortness of breath at 26 years old. Thus, Dr. Blevins’s opinion is accorded little to no probative value. As laid out above, there are two positive opinions that the Veteran has submitted, one of which is not probative, and the other is minimally probative. The negative opinions provided by VA medical professionals in November 2013, July 2017, and February 2019 all provide probative evidence that the in-service bronchitis and asbestos exposure that the Veteran experienced did not cause the post service pulmonary disabilities of COPD, emphysema, or fibrotic changes. These medical professionals had all reviewed the file and provided rationales for the conclusion reached. For these reasons, they outweigh the probative value of Dr. Blevins’s opinion. The Board also considered medical articles submitted by the Veteran. The Veteran submitted an article entitled “Mesothelioma and Navy Veterans.” The article states asbestos was present in Navy vessels and buildings until decades after the Veteran’s period of service in the Navy. The article goes on to say asbestos exposure can cause asbestosis. While the article says asbestos exposure may cause asbestosis, it does not establish a nexus between the Veteran's pulmonary disability of COPD and emphysema and service. The article is nonprobative evidence. An article titled “Asbestosis” concludes asbestosis is an inflammatory condition affecting the parenchymal tissue of the lungs caused by the inhalation and retention of asbestos fibers. It usually occurs after high intensity and/or long-term exposure to asbestos. The article goes to discuss signs and symptoms, diagnosis, and treatment of asbestosis. The Veteran wrote that he had parenchymal nodules but no fibrosis or plaquing and referred to the October 2010 CT scan. The October 2010 CT scan notes two small non-specific parenchymal densities in the right lung. However, the finding of this examination did not include a diagnosis of asbestosis. The Veteran circled part of a sentence referencing interstitial (parenchymal) fibrosis. The full sentence states asbestosis specifically refers to interstitial (parenchymal) fibrosis from asbestos, and not pleural fibrosis or plaquing. The Board notes parenchymal means relating to or affecting the functional tissue of an organ, and as such, it is not specific to either the lung or asbestosis. While the Veteran has parenchymal densities, the article points to parenchymal fibrosis from asbestos specifically in reference to asbestosis. Although asbestos exposure is listed as a cause for asbestosis, the article does not establish a nexus between the Veteran's pulmonary diagnoses and service. The article is nonprobative evidence. The Veteran submitted an article titled “USS Camp – DE 251: Naval Contractor, Shipbuilder, and Veteran Warning, Navy Destroyer Escorts.” The article lists various ships and discusses the likely risk of asbestos exposure because asbestos insulation was common. This article is probative, but the issue of asbestos exposure has been conceded by the VA. While the Veteran and his brother have attempted to establish a nexus through their own lay assertions that the Veteran’s pulmonary disability is related to a service, they are not competent to offer opinions as to the etiology of a pulmonary disability, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. A pulmonary disability requires specialized training for determinations as to diagnosis and causation, and is, therefore, not susceptible to lay opinions on etiology. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's and his brother’s own opinions are nonprobative evidence. The Board has weighed the November 2019 positive opinion against the November 2013, July 2017, and February 2019 negative opinions and found the preponderance of the evidence is against the claim for service connection for a pulmonary disability. For all the reasons described above, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for a pulmonary disability, to include COPD, emphysema, and lower lobe fibrotic changes, to include as being due to asbestos exposure. There is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a psychiatric disorder, to include PTSD. Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 5th edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. §§ 4.125(a), 4.130. The Veteran contends he has PTSD as a result of being on a ship, which searched for sailors who were thrown overboard in a storm. He stated on the January 2016 correspondence that he was on a ship escorting the USS Daly in February 1960, when a storm came that created swells that covered the ship. One sailor was killed, and five others were washed overboard and lost at sea. They stayed in the dark storm with flares and lights and never found the sailors. He found this incident to be very traumatic for him. The Veteran also had problems being confined. Initially he was confined to a small island in Rhode Island (RI). Then he was confined to the escort ship before being transferred by bus back to RI to become a crew member of the USS Camp. Former co-workers, family, and friends can attest to the fact that he is very nervous and anxious in confined spaces, and he thinks this all stems from his time in the Navy which was his first time being confined. The Veteran’s wife contends that the Veteran has been a very nervous person since she met him in 1982. His brother has stated the Veteran was not nervous like that until after he came home from the Navy. The Veteran noted on the September 2012 VA Form 21-4138 Statement in Support of Claim that he was losing weight due to losing interest in eating and that he seems to be depressed lately. His wife handles all the household bills, his appointments, and the like. His wife stated he is anxious and nervous around traffic, flying, and crowds, and he takes a long time to answer questions. They do not entertain together, and he prefers going to uncrowded places. He cannot talk to more than two people at once, and it takes him time to process the questions and answer. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a psychiatric disorder, to include PTSD. The reasons follow. The Board finds the preponderance of the evidence is against a finding that the Veteran has a current psychiatric disorder, to include PTSD under DSM-5, which is a requirement for service connection for PTSD or any psychiatric disorder. For example, in an August 2010 private treatment record, Dr. Hardison notes the Veteran has some PTSD. Dr. Hardison likely based this statement upon the Veteran’s self-report that he saw several men die when a wave washed them off the ship. In an October 2010 private treatment record, Dr. Hardison documented the Veteran was anxious and on edge all the time, which he never experienced before the military and that “he does appear to have some post traumatic stress disorder.” Dr. Hardison did not diagnose PTSD based upon the DSM criteria; therefore, this diagnosis cannot be used to support a claim for service connection for a psychiatric disorder, to include PTSD. The Board also does not find the Veteran’s report that he saw men die in service to be credible, which the Board will explain below. At the time of the October 2010 treatment, the Veteran reported that he saw several men die after being washed overboard. On a January 2016 correspondence, the Veteran documented people were swept overboard on a neighboring ship. They stayed out in the dark storm searching for people with flares and lights. However, during the August 2018 VA examination, the examiner documented the Veteran’s report that eight men were washed overboard, but he did not know the men. He stated he saw the wave that hit the USS Daly, but he did not see anyone washed overboard. The Veteran was unaware anyone was lost at sea until it was announced. VA has confirmed the Veteran was on the escort ship for the USS Daly when men were washed overboard, but the Veteran has changed his experience with this incident from seeing men washed overboard to hearing about people washing overboard after the fact. The Board does not find the Veteran’s initial report of seeing men washed overboard to be credible because of his changing story. In September 2012, the Veteran stated that he was depressed lately and was losing weight due to a lack of interest in eating. The Board does not find this assertion to be credible. For example, a May 2012 VA treatment record documents the Veteran’s weight is 207.4 pounds. A June 2013 VA treatment record documents a weight of 225 pounds. These records show that between May 2012 and June 2013 the Veteran gained approximately 18 pounds. Both May 2012 and June 2013 depression screenings were negative. These records show that four months before and nine months after the September 2012 statement, the Veteran denied depressive symptoms. In fact, all PTSD and depression screenings documented in VA treatment records from March 2001 to November 2019 are negative, which is indicative of the Veteran not experiencing psychiatric symptoms. Within the VA treatment records, there are at least 15 depression screens, which were performed essentially every year beginning in March 2001, and they are all documented as being negative. The statement documented within Dr. Hardison’s records that the Veteran has been haunted all of his life is not supported by the evidence. The Veteran was seen by VA in March 1999 because his family members were reporting that he was forgetful, and he wanted to be evaluated because of the Veteran’s strong family history of Alzheimer’s. The Veteran was asked about previous psychiatric problems and he denied any problems. The examiner wrote, “He denies depression or suicidal ideation. He also denies worry or anxiety.” The examiner documented that the Veteran denied “any particular stressors,” and concluded there was no evidence of a thought disorder. No psychiatric diagnosis was made at that time or within the VA treatment records that cover a period of 20 years. Additionally, the Veteran was provided with a VA examination in August 2018 for the purposes of determining whether the Veteran had a psychiatric disorder, to include PTSD. The VA examiner found the Veteran did not have a current psychiatric disorder under DSM-5. The examiner documented the Veteran had no current mental health symptoms, did not have any clinically significant symptoms of trauma, and he denied problems with depression and anxiety, which the Board notes is consistent with what is documented in the VA treatment records beginning in 1999. The Board finds the August 2018 VA examination to have high probative value because the examiner considered all the evidence of record and provided reasons and bases for her conclusion that the Veteran does not have a psychiatric disorder under DSM-5. The Board notes the Veteran did not report any issues related to being in confined spaces which he had previously linked to anxiety and being nervous. This is evidence against the Veteran having a current psychiatric disorder. While the Veteran’s wife and family have described the Veteran’s symptoms since service, they are not competent to offer an opinion on whether the Veteran has a current psychiatric disorder. A psychiatric disorder requires specialized training for determinations as to diagnosis and causation, and is, therefore, not susceptible to lay opinions regarding a current diagnosis. Therefore, their opinions are nonprobative evidence. The same conclusion applies to the Veteran’s allegations of having a current psychiatric disorder. At the present time, there is no competent and probative evidence of a diagnosis of a psychiatric disorder under the DSM-5 criteria to weigh against the August 2018 VA opinion that the Veteran does not have a psychiatric disorder under the DSM-5 criteria. For all the reasons laid out above, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for a psychiatric disorder, to include PTSD. As such, there is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, 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.