Citation Nr: 21014765 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-38 001 DATE: March 15, 2021 ORDER Entitlement to service connection for a respiratory disability, to include asbestosis and chronic obstructive pulmonary disease (COPD) is denied. FINDINGS OF FACT 1. The competent evidence shows that the Veteran does not have a definitive diagnosis of asbestosis. 2. The Veteran’s COPD is not caused by or attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for asbestosis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. 2. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1962 to July 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This case was remanded to the AOJ in July 2020 for additional development. The Board finds that the AOJ substantially complied with all remand directives, and the case is ready for adjudication. 1. Entitlement to service connection for a respiratory disability, to include asbestosis and COPD Generally, 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., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may only be awarded to an applicant who has a disability existing on the date of application or at any time during the appellate period, not for past disability. Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997)); Romanowsky v. Shinseki, 26 Vet. App. at 294. The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Furthermore, 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, 1 Vet App. at 49. 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. The Veteran contends that his respiratory disability, including COPD and asbestosis, is caused by his exposure to asbestos during service. The claim for COPD fails on the nexus element, and the claim for asbestosis fails on the current diagnosis or disability element. Therefore, as explained in more detail below, the claim for service connection for a respiratory disability must be denied. Turning to the evidence, the Board notes that the Veteran had normal lungs at entrance and separation examinations in March 1961 and July 1964. He was not diagnosed with COPD during service. Chest X-rays performed in July 1961, August 1962, and May 1964 were negative or essentially negative. At a VA screening in March 2014, when asked if the Veteran had smoked over 100 cigarettes in his lifetime, the answer was “yes.” However, he no longer smoked. The Veteran submitted his claim in March 2015. He reported seeking service connection for asbestosis because of working as a mechanic in the military and working on brakes containing asbestos. A letter dated in March 2016 from Dr. K. S. B. indicates that Dr. B. was the Veteran’s family doctor. He made a diagnosis of asbestosis, based on gradually increasing pulmonary symptoms and the Veteran’s exposure to asbestos during service. The Veteran reported not using protective masks to replace asbestos brake pads. The Veteran’s VA treatment records from March 2016 reflect a diagnosis of asbestosis. The AOJ obtained an opinion regarding the Veteran’s claim in October 2016. The examiner opined that it is less likely than not that the Veteran had asbestosis incurred in or caused by an asbestos exposure in service. There were no objective radiographs to support a diagnosis of asbestosis. The examiner explained that a diagnosis of asbestosis required radiographic evidence of structural changes and histology to confirm. Asbestosis refers to the pneumoconiosis caused by inhalation of asbestos fibers, and is characterized by slowly progressive, diffuse pulmonary fibrosis. The Veteran’s pulmonary functioning tests are consistent with COPD. In a written statement dated in October 2016, the Veteran reported that he was not exposed to any other chemicals other than asbestos on the brakes. A VA medical record dated in April 2017 indicates that the Veteran underwent a biopsy of a lung nodule. It was found to be benign. Private records dated in December 2017 show that the Veteran had an unusual density in his right lower lobe, but there was no malignancy found in the lung mass. An opinion regarding the etiology of the Veteran’s respiratory disability was provided in January 2020. The examiner recounted all the records reviewed, including some VA records indicating that the Veteran stopped smoking in 2005, and had previously smoked 1/2 pack a day for approximately 20 years. A March 2017 record regarding the biopsy specifically showed no culture growth after three days, no organisms, no squamous epithelial cells, no fungi, no anaerobes, and no evidence of tumor or granuloma. There was no evidence of abnormal lung tissue on pathology and the biopsy was negative. The examiner opined that it is less likely than not that the Veteran had a diagnosis of asbestosis that could be related to service. While asbestosis appeared in the records, the Veteran’s diagnosis was COPD, which is not related to asbestos exposure. The most important risk factor for COPD is cigarette smoking. The records showing an asbestosis diagnosis do not include documentation regarding what diagnostic results led to the diagnosis. The diagnosis appears in “past medical history,” which is often obtained from subjective reports of the patient. The examiner reviewed Dr. K. B.’s letter and observed there was no mention of the diagnostic work-up that led to his diagnosis. The examiner also observed that the Veteran was followed for several years by a pulmonologist, who would likely have the most expertise regarding work-up, diagnosis, and management of asbestosis, and the available notes from that physician did not include a diagnosis of asbestosis. The available X-rays and CT scans of the chest did not show pleural plaques or indications of pleural disease, such as small bilateral parenchymal opacities with multi-nodular or reticular pattern or honeycomb appearance. Additionally, the Veteran’s pulmonary functioning tests are consistent with his COPD diagnosis. The Veteran underwent a VA examination for respiratory disabilities in December 2020. He was diagnosed with COPD, and the examiner noted that a diagnosis of asbestosis was not warranted. The examiner explained that, to confirm an asbestosis diagnosis, lung scarring must be evident in imaging scans. Scarred lung tissue appears more opaque on X-rays, and in advanced cases of asbestosis, lung tissue may have a honeycomb-like appearance. Inhaling asbestos may lead to the formation of pleural plaques, which the Veteran did not have. The examiner opined that it is less likely than not that the Veteran had a diagnosis of asbestosis, and it is less likely that his COPD is due to exposure to asbestos during service. The Veteran’s COPD is caused by his history of tobacco smoking for about 20 years, and COPD is not caused by asbestos. Based on a review of the competent medical evidence, the Board concludes that service connection for a respiratory or lung disability is not warranted. First, the Board concludes that the Veteran does not have a definitive diagnosis of asbestosis as per the VA medical examiners. As outlined above, the pertinent legal criteria require that the evidence establish a current disability. This criterion is not met in this case with regard to the claimed asbestosis. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Therefore, the Board finds that service connection for asbestosis is not warranted. Although the record shows that the Veteran believes he has asbestosis, the medical records do not reflect this diagnosis. Moreover, there is no evidence to suggest that the Veteran is competent to diagnose this disability. The issue is medically complex, as it requires the interpretation of symptoms and medical findings by a trained medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, although the diagnosis of asbestosis appears in the Veteran’s records, the VA examinations of record, when taken together, explain that the diagnosis appears in the medical history, which is subjectively provided by the patient, and that the Veteran’s pulmonologist, who would have the most expertise in diagnosing asbestosis, did not provide such a diagnosis. Additionally, the examiners explained what is required to render such a diagnosis and indicated that the imaging and histopathology of the Veteran’s biopsy did not support an asbestosis diagnosis. Given that the medical professionals have provided a fully reasoned and adequate explanation why the Veteran does not have an asbestosis diagnosis, the Board must rely on the competent medical evidence before it in concluding that the criterion of a current disability is not met. The Board affords the pulmonology records and the October 2016, January 2020, and December 2020 VA opinions more weight than Dr. B.’s letter and the VA outpatient records in this conclusion. As noted, the Veteran’s pulmonologist did not diagnose asbestosis, which the Board finds significant. The Board acknowledges that the VA examinations of record are based on available records, and additional private records have not been obtained; however, the explanations provided with respect to what needs to be shown to diagnose asbestosis are still relevant and are based, in part, on review of the pulmonology records and Dr. B.’s letter. They directly address the Veteran’s contention that he has asbestosis, and adequately explain why, based on the available evidence, he does not. Therefore, the Board finds them collectively adequate to decide the asbestosis claim. The Board specifically affords the October 2016, January 2020, and December 2020 opinions significant weight regarding the asbestosis claim. (Continued on the next page)   Second, with regard to the Veteran’s COPD, the Board finds that service connection is not warranted as there is no nexus between COPD and the Veteran’s service. The Veteran’s COPD was not incurred in or diagnosed in service, as evidenced by the service treatment records. Additionally, the January 2020 and December 2020 VA examinations indicate that the Veteran’s COPD was caused by smoking, not asbestos. Although the January 2020 VA examination opined that “it is less likely as not the claimed asbestosis is proximately due to or caused by asbestos exposure,” and did not specifically write that his COPD was similarly not caused by asbestos, the explanation that smoking is the most important risk factor for COPD is significant. Because of the deficiency, though, the Board affords the opinion some, but not significant weight. The December 2020 VA examiner, however, wrote, the “Veteran’s claimed asbestosis/COPD is less likely than not due to exposure to asbestos during service.” The examiner further explained that asbestos does not cause COPD. As the December 2020 VA examination address COPD with the correct legal standard, the Board finds it adequate to decide the COPD claim. The Board also affords it significant weight in finding there is no nexus. In sum, regarding the asbestosis claim, with three negative nexus VA opinions having significant weight and outweighing Dr. B.’s opinion, the Board finds the preponderance of the evidence weighs against a finding that the Veteran has a diagnosis of asbestosis. Regarding COPD, with the January 2020 VA opinion having some weight and the December 2020 VA opinion having significant weight, the Board finds that the preponderance of the evidence is against the claim for COPD. The Board notes that service connection for a disability caused by the use of tobacco products is barred as a matter of law. 38 U.S.C. § 3.300. As there is insufficient evidence of record attributing any respiratory disability to service, including exposure to asbestos, the claim must be denied. In reaching the above 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 in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). M. MCPHAULL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.