Citation Nr: 21021143 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-44 412 DATE: April 9, 2021 ORDER Entitlement to service connection for a respiratory disability, to include interstitial lung disease, is granted. FINDING OF FACT There is an approximate balance of evidence regarding whether the Veteran’s respiratory disability, to include interstitial lung disease, is attributable to or caused by active military service. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, to include interstitial lung disease, are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1962 to June 1965. This matter comes to the Board of Veterans’ Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) dated in February 2015. The Veteran testified at a Board hearing in July 2019. The transcript has been associated with the record. This claim was remanded by the Board in November 2019 and August 2020. The case is ready for adjudication. 1. Entitlement to service connection for a respiratory disability, to include interstitial lung disease 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). 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 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. Turning to the evidence, the Board notes that the Veteran was not diagnosed with a lung disability during service. The Veteran’s service treatment records (STRs) are silent for a diagnosis of interstitial lung disease or asthma. The Veteran had normal clinical evaluation of the lungs at examinations in June 1962 and June 1965. At an outpatient appointment in July 2015, the Veteran complained of a cough. It was unclear if he had asthma or allergies. A private treatment record indicates that the Veteran was admitted to the hospital for shortness of breath in March 2016. The record reflects that his presentation was possibly cardiac in nature. However, his respiratory history suggested that, rather than having asthma, he had reactive airway syndrome following his exposure to caustic fumes in service. The Veteran had a persistent cough, and use of his anti-inflammatory agent routinely was emphasized to help with respiratory issues. In June 2016, several written statements were authored on the Veteran’s behalf. A fellow servicemember, G. G., explained that he worked in the same general area as the Veteran during service, and he would go to see the Veteran in the battery shop, which had a very strong smell. The battery shop smelled of sulfuric acid, and burned G. G.’s nose if he were in there longer than 5 minutes. He also reported that he never knew the Veteran to smoke. The Veteran submitted a letter from his time in service that he wrote to his then-girlfriend, I. L., describing his work in the battery shop. He explained that he worked with sulfuric acid in the shop. I.L., who met the Veteran in 1964 and married him in 1965, reported that in 1966, the Veteran had a persistent cough. The Veteran had traces of blood in his sputum for approximately three years. The blood stopped, but the coughing did not. A former coworker explained that the Veteran had excessive coughing, which interrupted his work. The Veteran frequently left the office due to fumes from cleaning supplies and perfumes. The Veteran’s previous supervisor, J. G., indicated that he had known the Veteran for over 18 years, and the Veteran never smoked. He always had problems with lung irritation, breathing issues, sensitivity, and coughing, especially when exposed to cleaning supplies at work. The Veteran testified at a Board hearing in July 2019. He explained that he worked in the battery shop for 18 months without protective equipment or working fans. The batteries gave off thick fumes while being charged, and he put sulfuric acid in the batteries while they were charging. Three people worked in the shop, and they would rotate so someone was always outside breathing fresh air. While in the shop, his throat would burn and he would cough. The Veteran’s lungs “bothered” him on the weekends when he was not working. The Veteran testified that he has had persistent coughing since service and he has been very sensitive to smells. He confirmed he never smoked. G. G. also testified at the Board hearing. He explained that the smell in the battery shop was so strong his eyes would water. In July 2019, the Veteran submitted articles in support of his claim. An article by the Agency for Toxic Substance and Disease Registry entitled “Public Health Statement: Sulfur Trioxide and Sulfuric Acid” explains that sulfuric acid is found in lead-acid batteries, and small droplets can be inhaled into the respiratory tract, and the effects include chemical burns, irritation, and difficulty breathing. The Veteran also submitted a study entitled “Increases in airway responsiveness following acute exposure to respiratory irritants. Reactive airway dysfunction syndrome or occupational asthma?” The study found a persistent long-term increase in nonspecific bronchial responsiveness following acute exposure to respiratory irritants, including sulfuric acid, in subjects with no history of asthma. The exposure induced acute symptoms of cough and dyspnea, and led to prolonged symptoms of variable airflow obstruction induced on contact with common respiratory irritants. Finally, the Veteran submitted an information sheet from the Canadian Centre for Occupational Health and Safety on sulfuric acid. It indicates that battery acid is very toxic and can cause severe irritation of the nose and throat, and long-term damage may result from a severe short-term exposure. The Veteran was afforded a VA examination in December 2019. He was diagnosed with interstitial lung disease. The examiner reviewed a chest CT dated in June 2019, which showed a few small pulmonary nodules and mild calcified pleural plaque. The examiner opined that the Veteran’s interstitial lung disease is less likely than not caused by or the result of exposure to sulfuric acid while on active duty. The examiner explained that the Veteran’s diagnosis was unclear, as his pulmonary fibrosis was idiopathic, and the studies did not show evidence of fibrosis after 12 years of exposure to sulfuric acid. In August 2020, the Veteran’s representative submitted argument, supported by citations to various websites. The representative explained and argued that inhalation of sulfuric vapor can be extremely irritating to the upper respiratory tract in the short-term, and can cause serious long-term lung damage. One website explained that chronic exposure can harm the respiratory system because of irritation and inflamed airways. In December 2020, the Veteran’s VA physician wrote a letter in support of his claim. The physician explained that the Veteran has a history of chronic lung disease with evidence of fibrotic and emphysematous changes, which are commonly seen in long-term smokers, but the Veteran never smoked. Based on the Veteran’s history of exposure to battery acid fumes, reported symptoms, and lack of smoking, it is at least as likely as not that the Veteran’s in-service exposure played a part in his development of chronic lung disease. The Veteran had another VA examination in February 2021, and was diagnosed with interstitial lung disease. The examiner stated that the Veteran did not have reactive airway disease or asthma, but his pulmonary fibrosis was idiopathic. The examiner reviewed the articles the Veteran submitted, along with the written statements and testimony, and concluded that it is less likely than not that the Veteran’s lung disability was caused by the in-service exposure. The examiner explained that he was a chemist by training and had not seen significant lung problems for sulfuric acid exposure; there was no basis that the battery shop would cause idiopathic pulmonary fibroses based on the time that passed. After reviewing the evidence, the Board concludes that direct service connection for interstitial lung disease is warranted. There is no dispute as to the existence of an in-service event. While the VA examinations of record explain that the Veteran’s interstitial lung disease is idiopathic, and the precise diagnosis is unclear, the Board notes that the Veteran’s June 2019 chest CT showed plaques and nodules. Moreover, the Board notes that the available diagnostic codes provide a general rating formula for interstitial lung diseases, regardless of the specific diagnosis. Therefore, the Board finds that the Veteran has a current disability for service connection purposes. As to the nexus element, the Board finds that there is an approximate balance of evidence for and against the Veteran’s claim. Therefore, reasonable doubt is resolved in the Veteran’s favor, meaning the Board finds there is a nexus between the Veteran’s exposure to battery acid in service and his interstitial lung disease. The Board affords all the lay statements regarding his symptoms, including the Veteran’s testimony and written statements from coworkers and the Veteran’s ex-wife, significant weight. The Board finds the Veteran and witnesses credible, and they are competent to report symptomatology which they have personally observed. In this regard, the Veteran has reported that he experienced coughing and shortness of breath during service, the Veteran and his ex-wife reported that he was coughing after service, and the Veteran and other witnesses reported that the Veteran had persistent coughing since separation. However, regarding the Veteran’s testimony on nexus, the Board affords it little weight. There is no evidence to suggest that the Veteran is competent to provide a nexus opinion. The issue is medically complex, as it requires the interpretation of symptoms, history, and medical findings by a trained medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board affords the negative opinions—the December 2019 and February 2021 VA examination reports—little weight. No rationale was provided for the significance of “interstitial lung disease” without a more specific diagnosis, and there was no explanation of what additional evidence would be needed to provide a more concrete diagnosis. Moreover, the examiners did not explain why the Veteran did not have asthma, reactive airway disease, or allergies. Finally, the conclusions were based on time passed, and did not adequately address the Veteran’s contentions and arguments, that is, citations to specific websites and articles indicating that long-term lung damage may result from short-term exposure. The Board affords the articles and citations in support of the claim little weight, as they are not reasoned opinions that take the Veteran’s specific circumstances into consideration. Finally, the Board affords the VA examiner’s December 2020 opinion some, but not significant weight. The examiner used the correct legal standard, and addressed the Veteran’s contention of sulfuric acid causing a lung disability. However, it is not afforded significant weight because the rationale does not address the Veteran’s diagnosis, other than explaining he has a chronic lung disease. With the negative opinions having little weight, and one positive opinion having some weight, and the articles and citations having little weight, the Board finds that the evidence is in relative equipoise. Therefore, the Board resolves reasonable doubt in the Veteran’s favor and finds that service connection for interstitial lung disease is warranted. S. L. Kennedy 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.