Citation Nr: 21020708 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-24 335 DATE: April 8, 2021 ORDER Entitlement to service connection for a pulmonary/respiratory disability, to include as due to asbestos exposure is denied. FINDINGS OF FACT 1. The Veteran had probable exposure to asbestos in service and outside of service. 2. The most probative (competent and credible) evidence of record is against a finding that the Veteran had a pulmonary/respiratory disability which was as likely as not causally related to service. CONCLUSION OF LAW The criteria are not met for service connection for a pulmonary/respiratory disability, to include as due to asbestos exposure. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1953 to October 1957. He died in September 2018 during the pendency of this appeal; however, his surviving spouse, his widow, since has been substituted to process this claim to completion. In July 2015, the Veteran and D.B. testified at a Board hearing before a Veterans Law Judge who is no longer employed at the Board. In December 2016, the Board duly informed the Veteran that he consequently was entitled to another hearing before a different Veterans Law Judge of the Board that would ultimately decide his appeal. However, the Veteran did not elect to have another hearing. In January 2017, the Board, in pertinent part, denied entitlement to service connection for a pulmonary disorder, to include as secondary to asbestos exposure, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court/CAVC). In February 2018, the Court issued an order that vacated the part of the Board decision which denied this claim, and remanded it for compliance with a Joint Motion for Partial Remand (JMPR) in which the parties agreed that VA should obtain an October 11, 2011 National Institute for Occupational Safety and Health (NIOSH) examination by Dr. S.L.N. which had been referenced by VA’s March 2016 Disability Benefits Questionnaire (DBQ) examiner, and incorporate it into the Veteran’s claims file. In May 2018, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) to obtain the record. In September 2020, the Board again remanded the matter because newly obtained records still did not contain an October 11, 2011 NIOSH record from Dr. S.L.N. As noted in the 2018 JMPR, the parties were unable to locate the 2011 NIOSH report. Unfortunately, VA has still not been able to obtain the report and has notified the Appellant (see January and February 2021 correspondence). VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency. The claims file does not reflect that Dr. S.L.N. (a civilian) submitted any additional records to a Federal agency, which then retained possession of them. Notably, the August 2012 VA examination report, the May 2014 Statement of the Case (SOC), and the April 2016 supplemental SOC (SSOC) are all unremarkable for a NIOSH report or a report by Dr. S.L.N in the list of evidence. The only reference to anyone reviewing the report is the DBQ’s examiner; the April 2016 supplemental SOC mentions the report only in the context of the DBQ examiner’s opinion. Thus, it can reasonably be found that the Veteran may have provided the DBQ examiner with the report, but that the examiner did not retain it. Regardless, the report is not of record, is not available, and upon further review, the Board finds that the Appellant is not prejudiced by the lack of the report. The March 2016 DBQ examiner’s opinion is still adequate regardless of the claims file’s lack of the October 2011 NIOSH report or any other October 2011 cited material. According to the 2016 DBQ examiner, he considered that the Veteran had presented with shortness of breath in 2011, and that the Veteran had reported that in service, he worked in a engine room and was exposed to asbestos, that he repaired cars and trucks at a gas station from 1957 to 1961, that he worked as a bus driver until retiring in 1990, that he was exposed to asbestos in the garage where it was stored and the environment was extremely dusty, and that he has unequivocal evidence of asbestos induced pleural disease caused by his cumulative occupational exposure to asbestos dust and a NIOSH evaluation. Although an October 2011 NIOSH evaluation and record of complaints is not associated with the claims file, the Board finds that the 2016 opinion is still adequate for several reasons. First, the Appellant has not disputed that the Veteran worked in an engine room in service, and that post-service, the Veteran repaired cars and trucks for four years, and then worked as a bus driver, that the Veteran was exposed to asbestos in a garage, or that the Veteran had cumulative occupational exposure to asbestos dust. Second, the Appellant has not disputed that the Veteran has asbestos-induced pleural disease, and the Board acknowledges that he had such a disability. Third, the evidence of record corroborates the Veteran’s post-service employment. For example, the Veteran’s October 1959 Report of Medical History for annual certificate purposes reflects that his usual occupation is as a mechanic; the Veteran’s May 1975 Enrollment Certification reflects that he had been a service station attendant for one year, and a truck driver for 6 months; the Veteran’s October 2011 VA Form 21-4138 states that he owned or worked at service stations for several years, and was a city bus driver from 1963 to 1990; VA clinical records note that he retired from driving a bus; a June 2005 Blue Ridge Cardiology and Internal Medicine (hereinafter Blue Ridge) record reflects that the Veteran reported having worked as a bus driver for more than 30 years; and the Veteran reported to the 2016 examiner that post-service he had worked as a general auto mechanic and later drove a bus for 27 years. Essentially, the pertinent information upon which the 2016 examiner relied has been corroborated by other evidence which is associated with the claims file. In addition, there is no disagreement that the Veteran had a probability of exposure to asbestos in service. Thus, VA has fulfilled its duty to assist, and another remand to further attempt to obtain a NIOSH report would merely delay adjudication of the claim without any benefit to the Appellant. Entitlement to service connection for a pulmonary disability, to include as due to asbestos exposure In March 2011, the Veteran filed a claim for service connection for chronic lung problems as due to asbestos exposure in service. In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a nexus between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. An opinion by VA's Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-00. VA must analyze the Veteran's claim of entitlement to service connection for asbestos-related disease under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527(1993); McGinty v. Brown, 4 Vet. App. 428, 432(1993). VA guidelines specify that asbestos fibers may produce fibrosis, including interstitial pulmonary fibrosis or asbestosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). The latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. The Veteran’s service personnel records (SPRs) reflect that he served on a ship as a machinist’s mate, which VA assumes had a “probable” exposure to asbestos. The medical evidence includes medical records noting diagnoses of a variety of pulmonary disorders including asthma, COPD (chronic obstructive pulmonary disease), pulmonary fibrosis, and pleural plaques consistent with asbestos exposure. Consequently, the Veteran's claim was reframed by the Board more generally as a claim for a pulmonary disability to include all of the aforementioned diseases. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also Brokowski v. Shinkseki, 23 Vet. App. 79 (2009). The Veteran’s service treatment records (STRs) are unremarkable for respiratory and/or pulmonary complaints or disease. His September 1957 Report of Medical Examination reflects that his lungs and chest were normal upon evaluation, and his chest x-ray was negative. The Veteran separated from service in 1957. His October 1959 Report of Medical History for annual certificate (Reserve) purposes reflects that he denied asthma, shortness of breath, pain or pressure in the chest, or a chronic cough. The earliest clinical evidence of a respiratory/pulmonary disability is not for more than four decades after service separation. A December 2002 Northern Hospital of Surrey County record reflects that the Veteran has bilateral partially calcified pleural plaques compatible with asbestos exposure. November 2005 Blue Ridge records reflect that the Veteran has an acute exacerbation of chronic bronchitis with underlying COPD, and that he has a past medical history which is significant for COPD. A December 2005 Blue Ridge record notes an assessment/plan of COPD on supportive measures. An October 2009 Blue Ridge record reflects a clinical assessment of COPD and pulmonary fibrosis with history of Methotrexate intolerance. An April 2010 Blue Ridge record reflects that the Veteran has a history of Methotrexate-induced lung toxicity, and COPD/asthma with mild persistent symptoms. A February 2012 examination report notes a diagnosis of COPD in 2010 and asbestosis in 2002. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran was a mechanic and bus driver after service and was exposed to asbestos for many years living in the city. The examiner also stated that the Veteran was a machinist mate in the Navy for four years and was exposed to asbestos in the pipe covering of the plumbing aboard the ship engine room but did not cut into the pipe; he was present when piping was repaired but otherwise had no direct exposure to asbestos. The examiner opined that it was more likely than not that the Veteran had a longer asbestos exposure time as a mechanic and bus driver than as a machinist’s mate in the service. The examiner was not of the opinion that the potential exposure briefly in the Navy as a machinist mate resulted in the asbestosis seen as pleural plaques in the lungs on examination; the Veteran's exposure to asbestos in the Navy was brief at best as he did not work on the pipes in his MOS and the pipes were covered. In his June 2014 formal appeal, the Veteran stated that he had to take apart piping and cut into piping to replace gaskets while in service, mechanically repairing the pipes. A March 2016 VA examination report reflects that the Veteran reported that in service, his tasks included repairing pipes, maintaining generators, repairing packing and gaskets, and loading shells. The Veteran also reported that he smoked from 1947 to 1967. After separation from service, he worked as a general auto mechanic and as a bus driver. The Veteran denied a history of COPD and asthma, and reported that these diagnoses were made based on a cold he had with noted wheezing. He reported that he does not use any pulmonary medications. he also reported that the pulmonary fibrosis was diagnosed as secondary to his methotrexate which had been prescribed for his non-service-connected psoriasis. The examiner noted that pulmonary function tests (PFTs) in 2011 and 2016 were normal. COPD and/or Asthma The 2016 examiner determined that the Veteran does not have either COPD or asthma. The examiner explained that the Veteran's PFT results were within normal limits and did not support diagnoses of asthma or COPD. As noted above, the Veteran's medical records do mention COPD and asthma multiple times. However, those references generally characterize the Veteran as seeking medical treatment for an acute condition such as bronchitis with "underlying" COPD or asthma. (See e.g. Medical Records received May 2011 pg. 3). As such, this evidence is more in the character of a recitation of the Veteran's reported medical history than it is evidence of an active and chronic diagnosis. See Leshore v. Brown, 8 Vet.App. 406, 409 (1995) (finding the repetition of lay medical histories by healthcare providers not competent as evidence of disability). Importantly, the examiner's determination that the Veteran does not have either COPD or asthma is consistent with the Veteran's testimony that those diagnoses were originally included in his medical records erroneously, and consistent with the PFTs. The Veteran also denied having been diagnosed with either COPD or asthma during his March 2016 examination. The Veteran was competent to report "a contemporaneous medical diagnosis." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Given that the Veteran's explanation is consistent with the findings of the VA examiner, the Board finds that the Veteran was also competent to report that he did not have chronic symptoms and that he believed that he did not have an accurate diagnosis of either COPD or asthma. Even assuming that the Veteran did have COPD and/or asthma, there is no probative evidence of record that it is as likely as not causally related to service rather than post service factors (e.g. environmental, smoking, etc.). There is also no probative evidence of continuity since service (see 1957 and 1959 records). Pulmonary Fibrosis The preponderance of the evidence is against a finding that it is at least as likely as not that the Veteran has pulmonary fibrosis due to service, to include asbestos exposure. Specifically, the VA examiner determined that the Veteran's pulmonary fibrosis was less likely than not (less than 50 percent probability) related to the Veteran's pleural plaques or his military service. The examiner reasoned that the Veteran's diagnosis of pulmonary fibrosis was due to the Veteran's use of methotrexate as treatment for a nonservice-connected condition; the examiner noted that pulmonary fibrosis is a known side effect of methotrexate. The examiner's opinion is consistent with the medical records provided by the Veteran. Those records report that he began taking methotrexate prior to March 2006 and discontinued this treatment approximately February 2008 when his doctors suspected he was developing lung problems as a result of this medication. For example, in an April 2010 private treatment record from Blue Ridge Cardiology, it was noted that the Veteran had a history of Methotrexate-induced lung toxicity. Pleural Plaques The clinical records reflect that the Veteran had pleural plaques which were consistent with asbestos exposure (e.g., see February 2012 and March 2016 examination reports, and December 2002 and October 2009 Norther Hospital of Surry County records). Nevertheless, the preponderance of the evidence is against finding a connection between the Veteran's pleural plaques and his in-service asbestos exposure. The examiners in February 2012 and March 2016 both reached this conclusion because the Veteran's civilian career as a mechanic and bus driver also exposed him to asbestos on a more regular basis and for a far longer period of time than did his duties in the Navy. As noted by the 2016 examiner, pleural plaques are more likely to develop after repeated exposure to asbestos. The Veteran had approximately three years aboard a ship in service (beginning August 1954 when he transferred to the USS Dortch) and it is probable that he was exposed to asbestos in his role as a machinist’s mate. However, prior to service, the Veteran attended a trade/vocational (automobile mechanics) school, had leisure time activities of minor repairs of automobile mechanics, and had a one-year history of work as a metalizing-machine operator. Post service, he worked as a truck driver, a mechanic, as a service station attendant for several years, and then worked as a bus driver for approximately two decades. Essentially, his combined years of pre and post service employment with likely exposure to asbestos far exceeded his service time. There is no probative opinion with an adequate rationale that the Veteran’s in-service exposure to asbestos equals or outweighs any pre and post service exposure. Neither the Veteran nor the appellant hs not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his pulmonary/respiratory disabilities, including in terms of whether related or attributable to anything that occurred during his time in the military. This determination is beyond their lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Conclusion The VA opinions, when taken with the record as a whole, provide sufficient evidence that the Veteran did not have a pulmonary/respiratory disability casually related to service, to include asbestos exposure. In addition, there is no evidence of continuity of symptoms since service, or a probative opinion with adequate rationale (i.e., discussing both in-service and non-service asbestos exposure) that it is as likely as not that any of the above-noted disabilities is due to service. For these reasons and bases, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). . L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.