Citation Nr: 21022144 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-00 077 DATE: April 14, 2021 ORDER Entitlement to service connection for a respiratory disability, to include as due to asbestos exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the respiratory disability, to include as due to asbestos exposure, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, to include as due to asbestos exposure, are not met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1972 to May 1976. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This issue was previously before the Board in May 2018, when it was remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Entitlement to service connection for a respiratory disability, to include as due to asbestos exposure, Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In a May 2013 statement, the Veteran alleged that their respiratory disorder is due to working as a fireman in the boiler rooms on two ships while on active duty service. In a March 2014 statement, the Veteran asserted that they were only ever exposed to asbestos while serving on two World War II era Navy ships. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). April 2014 private treatment records (PTRs) note emphysematous changes. June 2013 VA treatment records indicate chronic obstructive pulmonary disorder (COPD). A July 2013 VA CT scan found centrilobular and paraseptal emphysema, and a foci of focal pleural thickening. A February 2014 VA examination found a diagnosis of emphysema. August 2016 VA treatment records note moderate emphysematous changes. June 2017 VA treatment records show centrilobular and paraseptal emphysema, mild pleural thickening, and noncalcified pleural plaques bilaterally. August 2018 VA treatment records show mild to moderate predominantly upper lobe centrilobular and paraseptal emphysema, biapical scarring, minimal scattered pleural thickening and/or noncalcified pleural plaque. An October 2019 VA examination found a diagnosis of emphysema. And a May 2020 VA examination found a primary diagnosis of COPD, with emphysema. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service event or injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). As noted above, the Veteran alleges the respiratory disability is due to asbestos exposure while working as a fireman in the boiler room of Navy ships in service. The Veteran’s DD-214 confirms a military occupational specialty (MOS) of fireman. January 1975 military personnel records note that the Veteran worked as a fireroom operator and boiler checkman. On the VA Form 9, the Veteran asserted that they were not given safety equipment while working around asbestos in the boiler rooms, and repairing equipment. In October 2015, the Veteran submitted a settlement agreement from CBS Corporation, Viacom, Inc., and Westinghouse Electric Corporation acknowledging that the Veteran was exposed to asbestos products used, manufactured, sold, or supplied by those companies from 1972 through 1976. Given the Veteran’s MOS, their service in World War II era ship boiler rooms, and the settlement agreement, the Board finds the Veteran’s statements regarding in-service asbestos exposure to be competent and credible. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, the second element of service connection is met. Third, the Board finds that the evidence of record does not support a finding that the respiratory disability is related to active service. The Veteran underwent a February 2014 VA examination where the examiner provided a negative nexus opinion. The examiner explained that there were no findings suggestive of asbestosis like pleural plaque/calcifications and/or interstitial fibrosis on a July 2013 CT scan. The examiner opined that there is radiological evidence of emphysema, which is most likely related to their long-term cigarette smoking habit. During the examination, the Veteran reported that they started smoking at 22, smoking a pack every two days, and quitting in August 2013. The examiner explained that the slightly reduced diffusion capacity can be explained on the basis of emphysema. In October 2014, the Veteran submitted a letter from a VA nurse who stated that they reviewed the CT scan, and entered data regarding asbestosis and a thoracic aneurysm into their chart, and encouraged them to file a claim for service connection. It is unclear which CT scan they are referring to, and whether they made a diagnosis of asbestosis themselves, or if they were merely adding asbestosis to the Veteran’s medical history at their request. The RO sought an addendum VA medical opinion from the February 2014 examiner in October 2019, who declined to give a new opinion, stating that it will be best served that this case be evaluated by a pulmonary specialist as this is not a straightforward case of asbestosis. The RO obtained an addendum VA medical opinion in May 2020 where the examiner provided a negative nexus opinion. The examiner explained that the 2013 CT scan, the October 2019 pulmonary function test, and the June 2014 medical opinion are all consistent with a primary diagnosis of COPD, and that it is widely held in medicine that COPD’s strongest association is with long-term cigarette smoking, which is supported by the Veteran’s records. The examiner cited an article from CHEST Journal on smoking and emphysema. The examiner further stated that the medical records lack evidence of asbestosis, and that asbestosis can lead to a risk of later mesothelioma, a specific cancer highly associated with asbestosis, but that this is not seen in the Veteran. The examiner noted that the Veteran has asserted that since both conditions are lung disease that there might be a nexus, but citing the Mayo Clinic, the examiner explained that emphysema is not associated with asbestos exposure. The examiner concurred with the 2014 negative nexus opinion that emphysema is most likely associated with the long-term cigarette use. The Board affords the May 2020 VA medical great probative weight. It reflects a thorough review of the record, and is supported with citations to relevant medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The Board also affords probative weight to the June 2014 VA medical opinion as it also reflects a thorough review of the record. See Nieves-Rodriguez, 22 Vet. App. at 302-04; Stefl, 21 Vet. App. at 124. The Board affords low probative weight to the October 2014 letter because it does not provide a clear nexus opinion. See Fagan v. Shinseki, 573 F.3d 1282, 1288-90 (Fed. Cir. 2009) (noting that an inconclusive etiology statement may be properly described as “non-evidence” but that the remainder of the examination report must still be considered by the Board); Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (noting that a physician’s opinion that a veteran’s time as a prisoner of war “could” have precipitated the condition is too speculative to provide medical nexus evidence). And the Board affords no probative weight to the October 2019 VA medical opinion because they declined to provide an opinion. See Fagan, 573 F.3d at 1288-90; Bloom, 12 Vet. App. at 186-87. Throughout the appeal period, the Veteran has repeatedly asserted that the VA has not done the correct testing needed to find a diagnosis of asbestosis, notably they described in an October 2014 statement that VA did not use contrast upon examination. Diagnosing a respiratory disability and determining the etiology of such a disability requires specialized medical knowledge or training. The Veteran is certainly competent to report that they were exposed to asbestosis while in service, as noted above. See Washington, 19 Vet. App. at 368. However, they are not competent to opine on the adequacy of the examinations chosen to diagnose the etiology of their respiratory disability as the record does not show they possess the requisite medical training, expertise, or credentials. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Notably, there are specific medical tests that are designed to reveal the etiology of respiratory disabilities. These tests were administered by medical professionals. Given the tests performed are generally recognized in the medical community, the results are afforded high probative value. In addition, the testing results are given more probative weight than the Veteran’s lay statements. Finally, the respiratory disability cannot be presumed to be related to service as it is not a chronic disease on the list of those subject to presumptive service connection. 38 U.S.C. § 3.309. Additionally, the record does not show that the symptoms began to manifest to a compensable degree prior to 2013, nearly 40 years following separation from active duty service. Accordingly, service connection is denied. (Continued on the next page)   In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.