Citation Nr: 21016078 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 17-61 544 DATE: March 19, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disorder (COPD), sarcoidosis, fibrosis, and pneumoconiosis is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s respiratory disorder, to include chronic obstructive pulmonary disorder (COPD), sarcoidosis, fibrosis, and pneumoconiosis is related to service. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, to include chronic obstructive pulmonary disorder (COPD), sarcoidosis, fibrosis, and pneumoconiosis have been 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 September 1956 to April 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran and his spouse testified before the undersigned Veterans Law Judge during a May 2018 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2) (West 2012). This matter was previously before the Board in August 2018 and September 2020, wherein the Board remanded for addendum medical opinions. The matter has returned to the Board for adjudication. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that his respiratory conditions are due to his military service when he was exposed to asbestos and chemicals related to his duties as an aircraft supply clerk. The Veteran stated that he was exposed to asbestos from a coal boiler for steam heat in which the pipes were wrapped with asbestos and from pulling out asbestos from old buildings. See July 2002 Correspondence. The Veteran also reported that his workstation was inside a wire cage in a hanger where aircraft arrived and departed daily. He was exposed to dust fumes, chemicals, pollutants and irritant gases from aircraft that entered or exited the hangers. He also stated that he had to handle dirty mechanic rags and pieces of equipment in and out of the supply chain. See December 2011 Statement in Support of Claim. Regarding the Veteran's claimed in-service exposure to asbestos, his military occupational specialty (MOS) was a supply specialist. See DD-214, Certificate of Release or Discharge from Active Duty. His specific MOS is listed as a specialty for which VA has provided guidance concerning the probability of exposure. In this respect, exposure is considered minimal. However, as noted above, the Veteran indicated that he was exposed to asbestos from pulling out asbestos from old buildings during demolition work. Additionally, the Veteran has provided competent and credible lay statements regarding his exposure to dust fumes, chemicals, pollutants and irritant gases from aircraft during his time in the military. In this regard, the Board concedes that the Veteran was exposed to asbestos and other pollutants during his military service. In June 2018, in support of his claim, the Veteran submitted a medical opinion from his treating physician, Dr. T.P. The physician indicated that he follows the Veteran for general medical care and his first visit with him was in September 2002. Dr. T.P. noted that the Veteran reported a chronic cough that began during his time in the service and that the Veteran reported a seventeen pack/year history smoking but that he had been able to quit some ten years prior. At that time, he did not have a diagnosis of sarcoidosis. The physician stated that in May 2004 he referred the Veteran to Dr. E.E. for gallbladder surgery and Dr. E.E. found fifty small gallstones that were coal black. Dr. T.P. explained that black gallstones can be associated with sarcoidosis. Dr. E.E. biopsied the nearby liner and the pathology report confirmed sarcoidosis. Dr. T.P. stated that he remembered discussing with the Veteran that the cause of sarcoidosis at that time was unknown. A CT scan from June 2010 was read as pneumoconiosis, fibrosis, bronchiectasis, and COPD. Dr. T.P. stated that he has been asked to comment on the likelihood that the Veteran’s chronic lung disease is related to the exposure history he has documented during his time in the service. The physician stated that the Veteran has documented pneumoconiosis and fibrosis - a finding that can lead to chronic bronchitis, emphysema, and COPD. He explained that pneumoconiosis is associated with heavy mineral dust/fiber inhalation such as asbestos, cotton, coal, silicon, kaolin, etc. It is more common in people who smoke, but that is not a requirement. He rationalized that he has a fifty-six year old patient who has severe disabling COPD purely from kaolin exposure and he had never smoked. Dr. T.P. stated that he certainly thinks the dust/asbestos exposure he has documented contributed to his current COPD. While he was less certain of the connection with asbestos and sarcoidosis, a cursory search on the Internet yielded an article published in 2012 from Emory University and the University of Colorado (which houses the preeminent pulmonary disorder center in the U.S.) which confirms the causation effect of asbestos exposure on some cases of sarcoidosis. For instance, he explained that there was sharp increase in the incidence of sarcoidosis in first responders to the World Trade Center collapse. Dr. T.P. indicated he reviewed the medical record available to him of his 1956 entry physical examination which documents no respiratory disease and compared that with his exit physical which documents his new finding of chronic cough. He opined that the it is more likely than not his current pulmonary condition began during his active duty service and was initiated by the exposures he has documented. In addition, he stated that it is almost certain now that his later development of sarcoidosis was related to his exposures at that time. He would also add that his cigarette smoke exposure probably contributed a small fraction of his current symptoms. He noted that he has similar patients with that level of exposure (half pack per day for thirty-five years) who quit less thank twenty-five years ago who are almost asymptomatic. The Veteran was afforded a VA examination in November 2019. The VA examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner acknowledged that the Veteran was exposed to asbestos by explaining that one of the first steps in demolition is always asbestos abatement. She stated that there were no health problems for people living in the houses, but asbestos was present in the construction materials, so there was a problem for people doing the demolition. However, the VA examiner found that a nexus has not been established. The VA examiner explained that the Veteran does have interstitial lung disease, which include sarcoidosis, fibrosis, and pneumoconiosis. The earliest diagnosis for which interstitial lung disease was not until 2003 or 2004 (sarcoidosis). A forty-year gap in clinical manifestations with diagnosis argues against a direct cause-effect relationship with asbestos exposure during active duty resulting in interstitial lung disease. She also indicated that for COPD, there are multiple online sources reporting the etiology of COPD is tobacco abuse and that the Veteran’s spouse reported that the Veteran smoked from 1956 to the early 1980’s which is approximately thirty years. The VA examiner noted that the cause of sarcoidosis is unknown, therefore, a nexus cannot be established with military service. The cause of pulmonary fibrosis is unknown, but a risk factor is asbestos fibers, however, the Veteran’s pathology did not confirm asbestosis. Pneumoconiosis was considered but documented clinical manifestations after a forty-year gap following release from active duty does not support a direct cause-effect relationship. The September 2020 Board decision remanded the issue as the November 2019 VA examiner did not discuss the Veteran’s exposure to chemicals, solvents, fumes, and jet fuel while working in the aircraft repair hanger during his military service. In the November 2019 medical opinion, the VA examiner also did not distinguish between any damage caused by the Veteran’s smoking history versus any damage caused by the in-service chemical exposures. She also did not address the service treatment records (STRs) noting that the Veteran had coughs during service, including his separation examination from 1960 documenting post-nasal drip with cough. The same VA examiner who provided the November 2019 VA medical opinion provided the December 2020 medical opinion. With the exception of noting that the statement from the Veteran and his spouse on symptoms, research articles, his separation examination from 1960 noting post-nasal drip with cough can only be used to support a nexus based on speculation, the VA examiner essentially provided the same opinion as the one she provided in November 2019. Here, the Board finds that the November 2019 and December 2020 VA medical opinions did not fully address the questions posed to the VA examiner in the August 2018 and September 2020 Board remands. The VA examiner essentially provided a negative opinion based on the passage of time between the Veteran’s military service and the development of his lung conditions. In contrast, the Veteran’s treating physician, Dr. T.P. provided a positive nexus opinion and considered all the pertinent evidence of record, to include statements of the Veteran and cited to relevant evidence. There is no indication that the physician was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Indeed, he provided pertinent recitation of the record and fully supported his conclusions with specific citation to the Veteran's history. The Board accords probative weight to such opinion, as the opinion provided a complete rationale, relying on and citing to the records reviewed, and offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). Weighing the probative values of these opinions, both for and against service connection, the Board finds that the evidence is at least in equipoise. Therefore, the Board resolves reasonable doubt in the Veteran's favor and finds that service connection for a respiratory disorder, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.