Citation Nr: 21023288 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-39 958 DATE: April 20, 2021 ORDER Entitlement to service connection for asbestosis is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s asbestosis is causally related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for asbestosis have not been met. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1965 to July 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board remanded the issue above for further development. VA received a negative records response from the Social Security Administration (SSA) in January 2020 and obtained the requested opinion in March 2020. As such, the directives have been substantially complied with and the appeal is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for asbestosis In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Treatment records reflect that the Veteran is currently diagnosed with asbestosis. With regards to an in-service injury or disease, the Veteran’s service treatment records do not show complaints of, treatment for or a diagnosis of asbestosis and the Veteran received a normal chest x-ray in July 1967. Instead, the Veteran has alleged that he was exposed to asbestos in service while working as a pipefitter. The Veteran’s DD Form 214 shows that the Veteran was assigned to the U.S.S. Ruchamkin and his military occupational specialty was a pipefitter, which is recognized as a specialty with a high likelihood of asbestos exposure. As such, the Board finds that asbestos exposure in service has been established. The Board notes that the Veteran also stated that his asbestosis may have been caused by his cigarette smoking in service. However, for claims filed after June 9, 1998, such as in this case, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to a veteran’s use of tobacco products, including use during service. 38 U.S.C. § 1103; 38 C.F.R. § 3.300. Therefore, smoking in service is not a valid basis for granting service connection and will not be addressed further. Although a current disability and an in-service injury have been shown, the preponderance of the competent medical evidence is against such a finding that the Veteran’s asbestosis is casually related to his active service. VA obtained a medical opinion concerning the etiology of the claimed asbestosis in February 2014. The examiner opined that the Veteran’s asbestosis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that although the Veteran reported asbestos exposure while in service, there was no medical evidence in the claims file to support the claim. The examiner noted that the Veteran’s chest X-ray on discharge from the service in 1967 was normal and that the Veteran had additional asbestos exposure during his subsequent 35-year work history. However, the Veteran disputed the factual premise of the February 2014 VA examiner’s opinion. The examiner indicated that the Veteran worked for a power company from 1976 to 2002 and was exposed to asbestos regularly without any respiratory protection during that time. However, the Veteran stated that in later years of employment awareness grew regarding the dangers of asbestos exposure and that they began requiring respirators and implemented other safety precautions. See August 2014 notice of disagreement (NOD). In addition, the Veteran reported that he performed office work during his last ten years at the power company. As the February 2014 opinion appears to have been based on an inaccurate factual premise, it is entitled to no probative weight. Reonal v. Brown, 5 Vet. App. 458, 460–61 (1993). VA obtained a second opinion in February 2020. The examiner opined that the Veteran’s asbestosis was less likely than not incurred in or caused by service. In support of this opinion, the examiner stated that although during service the Veteran was assigned to a ship which is known to have high risk of asbestos exposure, the length of the Veteran’s period of service was under two years. The examiner then noted that there was no evidence of asbestosis for decades following the Veteran’s separation from service and that he had decades of asbestos exposure after separation, specifically noting that the Veteran reported asbestos exposure for approximately twenty-five years following separation. In sum, the examiner stated that the decades with no evidence of asbestosis following service coupled with the decades of post-service exposure made it unlikely that asbestosis was incurred in service and was then dormant until after non-military exposure to asbestos has ended. There is no evidence that the February 2020 examiner was either not competent or credible. Further, the examiner noted that he reviewed the Board’s remand and the Veteran’s claims file, considered the Veteran’s high risk of asbestos exposure in service and his post-service work history, and supported the opinion with rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). As such, the Board finds that the opinion is entitled to significant probative weight. A VA treatment note dated August 2018 reported that the Veteran was in the U.S. Navy for two years where he was a welder and pipefitter and extensively exposed to asbestos. The examiner indicated that the Veteran has chronic pulmonary problems for which two inhalers were prescribed, which is likely due to asbestosis. The examiner stated that it is more likely than not that the Veteran’s asbestosis is due to exposure in the U.S. Navy. However, the examiner provided no rationale supporting the opinion and further failed to address the Veteran’s extensive exposure to asbestos post-service. Id. As such, the Board finds that the August 2018 opinion is entitled to no probative weight. A review of post-service treatment records shows a private treatment record dated in January 1998 that noted an impression of persistent left pleural based density. In an April 2003 clinical note, Dr. D. S. noted that the Veteran was exposed to asbestos while working as a welder in the Navy between 1966 and 1968, while working as an installer at a sprinkler company between 1969 to 1976, and while working at Duke Power between 1976 to 1986 as a mechanic. Dr. D. S. stated that the Veteran removed and applied asbestos containing insulation in all of these work settings. A September 2005 letter from Dr. S. P. stated that the Veteran worked for Duke Power from 1976 until 2002 and that he worked in maintenance and construction. The letter noted that the Veteran’s duties included removing asbestos-containing insulation from pipes, pipe fitting, grinding off asbestos-containing gaskets, using compressed air to clean dust off surfaces, and cleaning up asbestos-containing debris. The Veteran worked in close proximity to individuals who were welding, insulating pipes and removing asbestos-containing insulation from pipes. It was noted that dust was frequently in the air and all over his clothing. Respiratory protection was not used. The letter further noted that prior to 1976 the Veteran worked in other jobs that also resulted in asbestos exposure. The claims file also contains settlement offers from different companies concerning asbestos exposure. The Board notes that the Veteran has argued that his asbestosis is due to his in-service asbestos exposure. However, he has not shown that he has specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The diagnosis and etiology of asbestosis are matters requiring medical expertise to determine. As such, the Veteran’s opinion that his asbestosis is casually related to his asbestos exposure in service, as opposed to his lengthier post-service exposure, is not competent medical evidence. As the statements are not competent, they are entitled to no probative weight. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran’s current asbestosis is causally related to his period of service. The Veteran’s statements asserting that his asbestosis is causally related to his period of service are not competent, and therefore are entitled to no probative weight. Further, the August 2018 opinion did not address the Veteran’s extensive post-service asbestos exposure or provide a supporting rationale, and therefore is also afforded no probative weight. Conversely, the February 2020 VA opinion provided a clear conclusion supported by a discussion of the extent of the Veteran’s in-service and post-service asbestos exposure. As the preponderance of the evidence is against a finding of a nexus, service connection on a direct basis is not warranted in this case. 38 C.F.R. §§ 3.102, 3.303. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. 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.