Citation Nr: 21026363 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 12-11 660A DATE: April 30, 2021 ORDER Entitlement to service connection for a lung disability, to include COPD and interstitial lung disease, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s lung disability, to include COPD and interstitial lung disease, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for lung disability, to include COPD and interstitial lung disease, have not been 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 has active service from January 1957 to January 1961. This case is again before the Board of Veterans’ Appeals (Board) from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans’ Law Judge at an April 2019 hearing. The Board issued a July 2019 denial of this claim. The Veteran appealed to the Court of Appeals for Veterans Claims (Court), and an April 2020 joint motion for partial remand (JMR) was issued (4/28/2020 CAVC Decision). The JMR cited inadequate reasons or bases addressing the Veteran's lay reports that he was exposed to asbestos while in service. The Board remanded the claim to the RO for additional development in September 2020. Finding there has been substantial compliance with the Board’s remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review. Lung disability, to include asbestosis pleura. The Veteran contends that his diagnosis of a lung disability is due to his active service at a radar site in Alaska, from 1957 to 1958 (3/16/2005 Medical Treatment Record -Non-Government Facility, p. 3; 10/02/2008 Medical Treatment Record -Government Facility, p. 10). The Veteran contends that the radar site had asbestos in the walls, ceilings, around heating pipes that ran through the same tunnels he had to walk through from building to building (8/04/2008 VA 21-526 Veterans Application for Compensation or Pension, pg. 8; 4/11/2019 Hearing Transcript, pg.3). The Veteran also contends that he was exposed to non-ionizing radiation during service while living beside the radar facility (4/11/2019 Hearing Transcript, pg. 7). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In review of this case, the Board notes the record does not suggest, nor does the Veteran assert, exposure to ionizing radiation, or that he is a radiation exposed Veteran within the meaning of 38 C.F.R. § 3.309 (d) (3). Accordingly, consideration of presumptive service connection for radiation exposure is not warranted in this case. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board acknowledges that the Veteran has current diagnoses COPD and interstitial lung disease. The Board further recognizes that he served in Alaska from 1957-1958, where he walked through tunnels, stayed inside, and lived beside a radar facility. Nevertheless, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of a lung disability began during service or is otherwise related to an in-service injury, event, or disease, to include the described conditions of his active service. Review of the Veteran’s service treatment records does not reveal in-service complaints or diagnoses of any lung disabilities. Upon discharge, the Veteran’s lungs and chest were clinically evaluated as normal (8/12/1968 STR - Medical, pg. 10). Moreover, no relevant complaints were raised in the Report of Medical History completed at that time. While not dispositive, his service treatment records weigh against his claim. VA treatment records show the Veteran was not diagnosed with COPD and interstitial lung disease until 2001, decades after his separation from service. The Veteran is competent to describe his experiences on active duty, to include walking through tunnels, remaining inside due to harsh weather conditions, and that walls, ceilings and piping were lined with asbestos that was bad shape and flaking. He is also competent to note that he lived adjacent to radar systems. However, the evidence of record does not suggest he is competent to render a diagnosis of asbestosis or to relate his current diagnoses to his in-service exposures. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Turning to the medical evidence of record, the Veteran was afforded a February 2019 VA examination for respiratory conditions. The examiner confirmed the Veterans 2001 diagnoses of respiratory conditions, chronic obstructive pulmonary disease, and interstitial lung disease (03/09/2019 C&P Exam). After an in-person examination and review of the Veteran’s medical and occupational history, the February 2019 examiner opined the Veteran’s lung disabilities were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. An April 2019 positive nexus opinion from a private practitioner is of record (4/16/2019 Medical Treatment Record -Non-Government Facility). The physician opined after a review of the Veteran's medical history, it is at least as likely as not that his current condition was caused by or was incurred during his military service. This opinion contained no further rationale. A September 2020 addendum opinion was obtained (9/25/2020 C&P Exam). The examiner, after review and consideration of the file, previous opinions, lay statements, verbal history and testimony of the Veteran, opined that it is not at least as likely as not that the Veteran has a lung disability related to an in-service injury, event, or disease, including the Veteran’s contended exposure to asbestos and non-ionizing radiation during active service at a radar site. The September 2020 examiner explained medical records did not support finding a pre-existing, or in-service or pulmonary condition at time of separation. Service treatment records do not contain complaints, diagnoses, or treatment for a lung condition. The examiner did not find the Veteran’s condition was diagnosed during active duty service or within a year after separation from service, and did not find medical evidence of continuity of symptoms from service until the current diagnosis. The examiner noted that a chest X-ray from March 2005 was normal, without active process, supporting that there was no asbestos-related disease at that time, The examiner also noted other documentation from 2005 included a positive history of post-military occupational exposure to asbestos, benzene and cement dust. In 2008, there was moderate obstructive impairment with air trapping from the obstruction ventilatory impairment. Additionally, there was possible concomitant restrictive ventilatory impairment; additional testing was recommended. VA pulmonary function tests (PFTs) with lung volumes in October 2008 shows only obstructive impairment, normal DLCO, and normal lung volumes indicating no underlying restrictive component. The examiner noted this would not support underlying asbestos related disease. Additionally, VA chest X-rays from September 2020 found no pleural effusion or pleural plaques or other changes suggesting asbestosis related disease or progression of an earlier process. The examiner explained the difference between COPD and asbestosis. The examiner explained that there was no restrictive disease on VA PFT with lung volumes in 2008, DLCO was normal and there were no irregular opacities to support objective evidence of an asbestosis diagnosis. Complications of asbestos exposure and asbestosis include pleural plaques, pleural thickening, pleural effusions, interstitial lung disease with fibrosis, bronchiectasis, and lung or pleural cancers. These chronic conditions were not found. The examiner also considered findings from 2001 and 2008, also citing to medical literature, ultimately concluding noting that the Veteran’s lung diagnoses is not related to asbestos exposure, but rather the more likely etiological cause of the COPD is the Veteran's smoking history. The examiner also explained that non-ionizing radiation is not associated with adverse health effects. Radar is a type of non-ionizing radiation and therefore not a likely cause of adverse health effect including COPD or pulmonary disease. The examiner cited to medical research in support of this point. The examiner also explained the Veteran’s current condition, diagnoses, and etiology is a complex medical question and not determinable by lay observation. (9/25/2020 C&P Exam). In weighing the evidence of record, while the Veteran is competent to describe his experiences and observations of his active service, to include seeing what he believed to be asbestos and living next to radar, the record does not suggest he has training to assess asbestos or radiation exposure, or specialized medical training, education, or specialized experience to provide a competent diagnosis, or opinion as to onset of his diagnosed lung disease, or nexus to service. Because he does not possess specialized training, education or experience, the Board does not assign his lay statements probative weight. The Board finds the September 2020 addendum opinion to be of the most probative weight and against the Veteran’s claim. The September 2020 negative nexus opinion is the most detailed of record and is based on a thorough review and understanding of the record and medical history. The Board accepts the ultimate conclusion of the September 2020 opinion over the February 2019 and April 2019 opinions of record. The February 2019 examination was previously assessed as inadequate and the private April 2019 opinion in favor of the Veteran’s claim is also inadequate as it is not supported by any rationale. As such, the September 2020 opinion is found to be the most probative of record and weighs against the Veteran’s claim. In light of the foregoing, the Board finds the weight of the most probative evidence of record is against the Veteran’s claim. Accordingly, the claim for service connection for a lung disability is denied. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.