Citation Nr: 21024810 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-61 230 DATE: April 26, 2021 ORDER Entitlement to service connection for a breathing disability, to include asthma and obstructive sleep apnea, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a breathing disability that began during active service or is causally or etiologically due to service. CONCLUSION OF LAW The criteria for service connection for a breathing disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1961 to August 1968. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in September 2019 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In December 2019, the Board remanded this claim for additional development. That development having been completed, the claim is now ready for appellate review. The Board notes that this appeal was originally adjudicated solely as entitlement to service connection for obstructive sleep apnea. See December 2015 rating decision. As noted in the December 2019 remand, during the September 2019 Board hearing, the Veteran and his representative asserted that his claim was meant to pursue entitlement to service connection for a breathing disability, caused by toxic exposures in service. Therefore, the Board recharacterized the Veteran’s claim as entitlement to service connection for a breathing disability, to include sleep apnea. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Importantly, the Veteran was denied service connection for asbestosis in a February 2017 rating decision; the Veteran did not appeal this decision, and as such, entitlement to service connection for asbestosis will not be discussed in this decision. Entitlement to service connection for a breathing disability. The Veteran seeks entitlement to service connection for a breathing disability. He asserts he began having trouble breathing approximately twelve years after service, which continually became worse. He believes his symptoms are due to exposure to asbestos and/or carbon tetrachloride. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 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). Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The theory of continuity of symptomatology is an alternative route to establish service connection for specific diseases and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all 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. 4 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily 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 v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. First, the Board notes that the Veteran has diagnoses of obstructive sleep apnea and asthma. See February 2021 VA examinations. Next, the Board notes exposure to asbestos has been conceded based on the Veteran’s military occupation specialty (MOS) of electrician’s mate in the Navy, which the Department of the Navy has deemed to be in the category of “probable exposure” to asbestos. See November 2016 statement of the case. Additionally, the Board resolves doubt in the Veteran’s favor and concedes that the Veteran was likely exposed to carbon tetrachloride in the service, as he testified that it was used to clean the electrical generators. Thus, the question for the Board is whether the Veteran’s currently diagnosed disorders began during service or are at least as likely as not related to his time in service, to include exposure to asbestos and/or carbon tetrachloride. The Veteran was afforded a VA examination in November 2016. The examiner noted that service treatment records are silent for any chronic, recurring, or persistent sleep complaints. The separation examination is also silent for any sleep complaints, nor did the examining provider on separation note any sleep abnormalities. The examiner noted that the Veteran was diagnosed with sleep apnea in 2009. The examiner explained that sleep apnea is an anatomical/physiological disorder most commonly caused by airflow obstruction from the oropharynx to the lungs, which can be caused by either enlargement of the neck muscle mass, which when supine, obstructs airflow or weakness of the posterior pharynx muscles and prevents keeping the airway open when supine. The examiner stated that asbestosis does not result in upper airway compromise nor cause the mass effect that predisposes one towards a sleep apnea condition; therefore, it is less likely as not that the Veteran's current sleep condition is due to his military service duties and activities that ended 48 years ago. The Board acknowledges that the majority of this opinion pertains to whether the Veteran’s obstructive sleep apnea is due to his reported asbestosis rather than any possible relationship to exposure to asbestos, and therefore, is accorded little probative value. The Veteran was afforded a VA examination in February 2021 for his sleep apnea. After review of the file and examination of the Veteran, the examiner opined it is less likely than not that the Veteran’s sleep apnea is due to exposure to asbestos or carbon tetrachloride. The examiner explained that carbon tetrachloride is known to primarily affect the liver, kidneys, and central nervous system; causes of sleep apnea are obesity, narrowed airway, being male, smoking, nasal congestion, hypertension, and asthma. The examiner stated there is no documented evidence of the chemical carbon tetrachloride causing pulmonary problems, such as chronic obstructive pulmonary disease (COPD) or sleep apnea. Continuing, the examiner also indicated that there is no evidence that exposure to asbestos causes sleep apnea. The examiner explained that based on the pulmonary function tests (PFTs) from February 2017, the Veteran’s total lung capacity was 87 percent, which is normal. The examiner stated that if there was damage to the lungs due to asbestos, then there would be fibrosis, which would cause a decrease in total lung capacity. Therefore, based on the evidence of record, the examiner opined that the Veteran’s sleep apnea is less likely than not incurred in or caused by carbon tetrachloride or asbestos exposure. The Veteran was afforded a VA examination in February 2021, at which time he was diagnosed with asthma. After review of the file and examination of the Veteran, the examiner opined it is less likely than not that the Veteran’s asthma is due to exposure to asbestos or carbon tetrachloride. The examiner explained that if there was damage to the lungs from exposure to asbestos, there would be fibrosis, which would cause a decrease in total lung capacity; here, based on the pulmonary function tests of February 2017, the Veteran’s total lung capacity was 87 percent, which is normal. Also, the February 2021 pulmonary function test showed normal spirometry with a FEV1 equal to 84 percent, which is normal as well. Furthermore, the chest x-ray from October 2020 showed no acute appearing chest findings. Regarding carbon tetrachloride, the examiner stated the chemical affects mainly the liver, kidneys, and central nervous systems; there is no evidence that the chemical directly impacts the pulmonary system. Rather, the impact to the pulmonary system is usually secondary to problems associated with the liver and/or acute renal failure, at which time respiratory insufficiency can ensue. The examiner stated the Veteran has asthma, which does not follow from exposure to asbestos or carbon tetrachloride. Therefore, based on the evidence of record, the examiner opined that the Veteran’s respiratory disorder of asthma is less likely than not due to service. The Board finds the February 2021 VA opinions highly probative because the examiners had the appropriate training, expertise, and knowledge to evaluate the claimed disorders. Furthermore, the examiners also reviewed the records, performed clinical examinations, and considered the Veteran’s statements regarding the nature and history of his conditions. There are no probative medical opinions to the contrary of record. The Board has considered the Veteran’s own statements regarding the nature and etiology of his disorders. The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss pain and other symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran, however, is not competent to render an opinion as to the cause or etiology of his current disorders because asthma and sleep apnea may be due to many different causes thereby rendering the question of causation a matter of medical complexity requiring medical expertise to resolve. Here, the probative medical evidence has indicated that there is no relationship between the Veteran’s current asthma and sleep apnea and his time in service. Additionally, the Board notes the Veteran submitted medical articles discussing the effects of exposure to carbon tetrachloride; however, the article indicates that carbon tetrachloride affects mainly the liver, kidneys, and central nervous system, which supports the February 2021 VA examiner’s opinion. The article submitted does not indicate that carbon tetrachloride has effects on the respiratory system or breathing, to include asthma or sleep apnea. The Veteran also submitted articles regarding exposure to asbestos, however, the articles do not indicate that exposure to asbestos has been linked to sleep apnea or asthma. In summary, although the Veteran had in-service exposure to asbestos and carbon tetrachloride, and he has current diagnoses of asthma and sleep apnea, there is no probative persuasive medical evidence his current disorders are due to service, and there is no probative evidence that his disorders began during service. Although the Veteran believes that the symptoms he has experienced over the years are due to his exposures during service, the preponderance of medical evidence of record indicates that there is no such causal relationship. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a breathing disability, to include asthma and sleep apnea. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.