Citation Nr: 21023734 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 20-04 485A DATE: April 21, 2021 ORDER Entitlement to service connection for a respiratory disorder, characterized as chronic obstructive pulmonary disease (COPD) and emphysema, is granted. FINDING OF FACT The Veteran’s current respiratory disorder, diagnosed as COPD and emphysema, is at least as likely as not related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disorder, diagnosed as COPD and emphysema, are met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1961 to December 1964. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision. Within one year of the RO’s June 2018 denial of service connection for COPD, the Veteran submitted an August 2018 request for reconsideration and private treatment records related to his claim. Consequently, the June 2018 rating decision did not become final, and the Veteran’s original claim remained pending under 38 C.F.R. § 3.156(b). The agency of original jurisdiction (AOJ) denied the claim once more in a September 2018 rating decision, and the Veteran filed a timely notice of disagreement in March 2019. As the record reveals that the Veteran also has a diagnosis of emphysema, in addition to COPD, and as each issue is considered a respiratory disorder, the Board has condensed the claims into one issue to encompass all current respiratory disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection for a Respiratory Disorder 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. Service connection requires that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran contends that he has a respiratory disorder because of exposure to asbestos and other toxic fumes during active service. In statements in support of this claim, he reported having served aboard a ship where he was charged with removing electrical wiring and cable that was insulated with asbestos. See, for instance, May 2018 Lay Statement from Veteran. He also stated that he had been exposed to burnt aircraft fuel, stack gas, and airborne particulates. Id. In a February 2020 statement of the case, VA noted that the Veteran served as a radarman on the USS Forrestal, indicating there was minimal probability for asbestos exposure based on his military occupational specialty. Thus, in resolving reasonable doubt in the Veteran’s favor, the Board finds that he was exposed to asbestos in service. Moreover, given the circumstances of the Veteran’s service, the Board accepts his reported in-service exposure to toxic chemicals, including burnt aircraft fuel, stack gas, and airborne particulates, as credible and consistent with his service. The Veteran’s service treatment records are negative for any complaints of, treatment for, or a diagnosis of a respiratory disorder. A December 1964 separation examination report reveals a normal clinical evaluation of his chest and lungs. Private treatment records dated in February 2018 show that the Veteran was diagnosed with COPD. The treatment physician, Dr. K.M.S., noted that the Veteran had been a patient under his care for COPD since November 2017. He stated, based on pulmonary function studies dated in January 2018, that the Veteran has severe COPD. A May 2018 VA examination report also shows a diagnosis of COPD, with a diagnosis date of 2001. In addition, a subsequent December 2020 medical opinion from Dr. K.M.S. confirms a current diagnosis of emphysema. As previously stated, Dr. K.M.S. noted in a February 2018 letter that he had been treating the Veteran for COPD since November 2017. He stated that it was his professional opinion that the Veteran’s COPD was at least as likely as not caused by exposure to multiple industrial fumes and asbestos during active service. In May 2018, the Veteran was afforded a VA respiratory examination, at which time the examiner diagnosed him with COPD. The examiner indicated that the Veteran’s in-service asbestos exposure was probable. She negatively opined that the Veteran’s COPD is less likely related to asbestos exposure during military service and is more likely related to his record of smoking one pack of cigarettes per day for over 30 years. The examiner indicated that her opinion was based on a review of the Veteran’s medical records and up-to-date medical literature. In private treatment records dated in July 2018, from Dr. K.M.S., it was noted that centrilobular emphysema was most prominent in the upper lobes. The physician also documented a diagnosis of dyspnea multifactorial, including COPD alpha-1 antitrypsin. He noted that interstitial changes with reticular nodular subpleural changes in the lower lung zones were more than likely asbestos exposure. The physician explained that the Veteran has had significant asbestos and paint exposure while onboard a Navy aircraft carrier. He also indicated that the Veteran was a remote 37-pack smoker. Additional private treatment records, dated in January 2019, reflect the Veteran’s continued follow-up treatments for his respiratory disorders. In an addendum medical opinion obtained in January 2020, a VA examiner stated that asbestos exposure does not directly cause COPD, but that it can increase a person’s risk of developing the condition. She explained that COPD may weaken the lungs, making a person more susceptible to additional asbestos-related diseases. She further stated that, as per the National Institutes of Health, COPD is most frequently caused by smoking, and the Veteran has documented cigarette smoking since entering service. The examiner reiterated that asbestos is responsible for several pulmonary diseases, but that COPD is not one of them. However, she noted that subpleural changes in the lower lungs are at least as likely as not due to asbestos exposure. In a very detailed letter dated in December 2020, Dr. K.M.S. emphasized that he is a board-certified pulmonary and critical care physician who had been treating the Veteran since 2017. He stated that he had reviewed the Veteran’s records, including military records, VA treatment records, pulmonary function tests, and computerized axial tomography (CAT) scan findings—and that it is not absolute that asbestos alone may have contributed to the interstitial findings on the CAT scan or that tobacco contributed to COPD. Dr. K.M.S. indicated that there are multiple studies related to the inhalation of foreign fumes and foreign substances as contributing to COPD. He explained that, as asbestos has been in use on industrial jobs, to include the Veteran’s jobs in service, the references related to airway injury COPD also apply to the Veteran. He referred to a July 2004 study of Finnish construction workers, published in the Journal of Occupational Health, which documented emphysema findings associated with heavy asbestos exposure on high-resolution CAT scans. Dr. K.M.S. also referred to a separate study that was published in September 1995 in the Journal CHEST, which focused on the findings of pneumoconiosis and both smokers and nonsmokers with silicosis or asbestos exposure. He noted that, in the absence of smoking, patients with asbestos or silicosis pneumoconiosis did develop emphysema. After reviewing the Veteran’s records and pertinent literature, the physician opined that it is as likely as not that emphysema was a direct result of the Veteran’s early service years on the Navy ship where he was exposed to asbestos. Based on the above, the Board finds that the Veteran’s respiratory disorders are related to his military service, to include his in-service exposure to asbestos and other toxic chemicals. The findings of the medical opinions of Dr. K.M.S. are consistent and probative, especially when considered with the other evidence of record, as they address the relevant medical question at issue and are based on their understanding of the Veteran’s relevant history as well as the physician’s medical expertise. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where the rationale provided by an examiner did not explicitly lay out the examiner’s journey from facts to a conclusion,”) & Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole in the context of the evidence of record). While the Board acknowledges the negative opinions of the VA examiner, they are assigned less probative weight as the examiner did not address the Veteran’s theory of entitlement regarding his exposure to multiple industrial fumes during active service. Based on the foregoing, the weight of the evidence supports a finding that the Veteran’s current COPD and emphysema are at least partly related to his established exposure to asbestos and other toxic chemicals during service. Service (CONTINUED ON NEXT PAGE) connection for a respiratory disorder, diagnosed as COPD and emphysema, is therefore granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.