Citation Nr: 21013378 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-44 942 DATE: March 9, 2021 ORDER Entitlement to service connection for emphysema is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s emphysema was related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the appellant, the criteria for service connection for emphysema are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1960 to November 1964. He passed away in June 2018. The Veteran’s surviving spouse has been substituted as the appellant. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision. In April 2018, the Board granted the Veteran’s application to reopen the claim of service connection for respiratory disability and remanded the underlying claim for further development. In November 2020, the Board awarded service connection for restrictive lung disease and remanded the issue of entitlement to service connection for emphysema and chronic obstructive pulmonary disease (COPD) for further development. Entitlement to service connection for emphysema Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166 – 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448 – 49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The United States Court of Appeals for Veterans Claims (Court) has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). There are no statutes specifically dealing with asbestos and service connection for asbestos related diseases and the Secretary of VA has not promulgated any specific regulations. An opinion by VA’s Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-2000. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to ascertain whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. Asbestos particles have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaque, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Lung cancer associated with asbestos exposure originates in the lung parenchyma, rather than the bronchi. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch products and brake linings, manufacture and insulation of roofing and flooring materials, sheet and pipe products, and so forth. High exposure to asbestos and the high prevalence of disease have been noted in insulation and shipyard workers. The clinical diagnosis of asbestosis requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease. The Veteran contended that he had respiratory disability (to include emphysema) that was related to his exposure to asbestos, lead paint, chemicals, fumes from welders and cutting torches, and other airborne environmental contaminants while serving aboard Navy ships. The Board finds, for the following reasons, that the Veteran had a current diagnosis of emphysema at the time of his death and that the evidence is at least evenly balanced as to whether this disability was related to service. Medical records, including an October 2017 VA pulmonary fellow note, indicate that the Veteran was diagnosed as having emphysema. Thus, current emphysema at the time of his death is demonstrated. Military personnel records, to include the Veteran’s DD 214, show that he served as a deck hand. The Veteran asserted that he was exposed to asbestos, lead paint, chemicals, fumes from welders and cutting torches, and other airborne environmental contaminants during his service on ships. A review of the record shows that the agency of original jurisdiction (AOJ) has conceded in-service exposure to asbestos. Records also show that the Veteran served on the USS Chevalier from March 1961 to February 1963 and on the USS Brush from March 1963 to November 1964. The Veteran was competent to report exposure to asbestos, lead paint, chemicals, fumes from welders and cutting torches, and other airborne environmental contaminants in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, there is nothing to explicitly contradict his reports, and they are generally consistent with the evidence of record and the circumstances of his service. Therefore, the Veteran’s reports of in-service exposure to asbestos, lead paint, chemicals, fumes from welders and cutting torches, and other airborne environmental contaminants is conceded. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). In a May 2006 private medical opinion, D. A. Chapman, D.O. stated that the Veteran had been his patient for a number of years and that he had never been a smoker, but that he was diagnosed as having emphysema. Dr. Chapman also found that the Veteran did not have a genetic defect that would cause emphysema. As such, he stated that he would “have to assume” that the Veteran’s in-service exposure to fumes and asbestos would be the only cause of his emphysema. He found that “the only plausible explanation would be the Veteran’s exposure while in the military.” In August 2006, the Veteran submitted a medical treatise article about emphysema, to include its causes. It listed smoking as the most common cause of emphysema, as well as a genetic cause for emphysema. In an August 2006 statement, the Veteran reported in-service exposure to asbestos and lead based paint. His post-service occupational history included driving trucks for seven years, construction, and the restaurant business. He did not smoke. In November 2006 and August 2007 statements, the Veteran’s wife stated that she truly believed that the Veteran’s in-service exposure to asbestos, lead paint fumes, and fumes from welders and cutting torches caused his breathing problems. In a November 2006 statement, S. J. reported observing the Veteran’s steady decrease in his ability to perform physical activity due to shortness of breath. This had worsened in the past three years. In a December 2006 statement, D. P. reported that she had been acquainted with the Veteran and his wife for a number of years and had noticed that it had become increasingly difficult for the Veteran to breath when he exerted himself. She stated that the Veteran had never smoked and had gotten “plenty of good food and exercise” over the years. In a letter received in July 2009, a VA physician reported that he had been treating the Veteran since September 2007. The Veteran experienced symptoms of dyspnea and shortness of breath, pulmonary function tests revealed mild restrictive defect, and a CT scan of the lungs revealed mild bilateral centrilobar emphysematous changes. The physician opined that as the Veteran’s in-service exposure to chemicals, exhaust fumes, and asbestos may have caused his current respiratory symptoms, a VA examination was justified. In a July 2009 statement, the Veteran reported in-service exposure to chemicals. In August 2009, the Veteran described his symptoms and expressed his belief that his breathing problems were due to his in-service exposure to lead paint, fumes from welders and cutting torches, and asbestos. In August 2016 and August 2017, the Veteran again reported that he had been exposed to asbestos and lead paint in service. In December 2020, a VA physician reviewed the Veteran’s claims file and opined that it was less likely than not that the Veteran’s emphysema/COPD was due to his in-service exposure to asbestos. The physician noted that medical literature did not show that COPD was caused by asbestos and that the April 2006 VA treatment record noted that the Veteran’s emphysema could not be attributed to asbestos. The physician addressed Dr. Chapman’s opinion and found that it was not supported by a scientific explanation. According to post-service VA treatment records, the Veteran was a lifetime non-smoker and was diagnosed with COPD and emphysema. In May 2005, PFT’s showed moderate emphysema with mild wheezing and a March 2006 CT scan showed moderate centrilobular emphysematous changes. In an April 2006 VA treatment record, the treatment provider noted that the Veteran had no striking family history of emphysema and that he did not have any other identifiable risk factor for emphysema, to include passive smoking, occupation, or pre-existing asthma. However, a CT scan did not demonstrate evidence of an asbestos-related thoracic disease. It was noted that the Veteran and his wife were convinced that his difficulty breathing was due to lung disease associated with his prior asbestos exposure. However, the VA treatment provider explained the Veteran’s impairment could not be attributed to asbestosis and that, while he could develop an asbestos-related condition in the future, the Veteran did not have one at the time. Dr. Chapman’s May 2006 opinion and the December 2020 VA opinion are based upon treatment of the Veteran and/or a review of medical literature and his treatment records and consideration of his reported history, and they are accompanied by specific rationales that are consistent with the evidence of record and the circumstances of the Veteran’s service. Thus, Dr. Chapman’s May 2006 opinion and the December 2020 VA opinion are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Although the opinion of the VA physician included in the letter received in July 2009 is of limited probative value because it is speculative, it at least supports the conclusion that the Veteran’s emphysema was related to his environmental exposures in service. In light of the above medical opinions, the Board finds that the evidence is at least evenly balanced as to whether the Veteran’s emphysema was related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, entitlement to service connection for emphysema is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) The Board notes that the benefit granted herein is service connection for emphysema, although the issue on appeal was previously characterized as including a claim of service connection for COPD, and there is evidence of this respiratory diagnosis during the claim period. Also, service connection has already been awarded for restrictive lung disease and asbestosis. Given that there is no evidence to distinguish between all of the symptoms of the Veteran’s respiratory disabilities, a separate decision as to entitlement to service connection for respiratory disability other than emphysema, restrictive lung disease, and asbestosis is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). Thus, in applying the benefit of the doubt doctrine, all the Veteran’s respiratory symptoms must, therefore, be attributed to his service-connected emphysema, restrictive lung disease, and asbestosis. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.