Citation Nr: 21026741 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 13-30 565 DATE: May 3, 2021 ORDER Entitlement to service connection for a lung condition is denied. FINDING OF FACT Asthma first manifested decades after service and is not attributable to any injury or event thereto, to include claimed exposure to asbestos. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, to include asthma, have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1969 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2020 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Most recently, this issue was before the Board in May 2020. At that time, the Board remanded the claim for additional evidentiary development, specifically a nexus opinion. As will be discussed in more detail below, the Board finds that there has been substantial compliance with the remand directives from May 2020 regarding the claim for service connection for a lung condition. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order). The Veteran is seeking service connection for a lung condition, which he claims was caused by his alleged in-service asbestos exposure. Specifically, he has been diagnosed with asthma and reports that during service, he was exposed to asbestos via floor tiles and piping while working on the USS North Hampton. See Board Hearing Transcript, pp. 16-17. 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). Regarding the Veteran's assertion that he has a respiratory disability that is related to in-service asbestos exposure, there is no specific statutory guidance with regard to asbestos-related claims, nor has VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases (DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular)) that provides guidelines for considering compensation claims based on exposure to asbestos. The DVB Circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI (this has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C). See also VAOPGCPREC 4-00. The guidelines provide that the latency period for asbestos- related diseases varies from 10 to 45 years or more between first exposure and development of disease. It is noted that an asbestos- related disease can develop from brief exposure to asbestos or as a bystander. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial fibrosis, or asbestosis); tumors; pleural effusions and fibrosis; pleural plaques; and, cancers of the lung, bronchus, larynx, pharynx and urogenital system (except the prostate). M21-1MR, IV.ii.2.C.9.b. Specific effects of exposure to asbestos include lung cancer, gastrointestinal cancer, urogenital cancer and, notably for this case, mesothelioma. Disease-causing exposure to asbestos may be brief and/or indirect. Current smokers who have been exposed to asbestos face greater risk of developing bronchial cancer, but mesotheliomas are not associated with cigarette smoking. M21-1MR, IV.ii.2.C.9.c. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1 MR, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. Lay persons are competent to provide opinions on some medical issues falling within the realm of common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the facts of the case, the Veteran's military personnel records indicate that he served aboard the USS North Hampton; his military occupational specialty (MOS) was a Boatswain's Mate, which has a minimal probability of asbestos exposure. Although minimal, the Board finds that such probability satisfies the requirement for in-service injury. Thus, the outcome of this case turns on whether the Veteran manifests an asbestos-related disease that is etiologically related to his period of service. For the ensuing reasons, the Board finds that the evidence preponderates against the claim and service connection for a lung condition is not warranted. Post-service, in May 2012, the Veteran reported experiencing shortness of breath for approximately three years. He underwent a pulmonary diagnostic study, at which time, he was noted to have mild airflow obstruction with immediate improvement with inhaled bronchodilator. He was diagnosed with asthma and prescribed a steroid inhaler, which he used every day. Subsequent treatment records document the Veteran's continued use of his inhaler to control his asthma; treating physicians advised the Veteran to stop smoking but did not provide an etiology for the Veteran's asthma. Notably, the Veteran has not been diagnosed with any other respiratory disability. Regarding the nexus requirement, there is one medical opinion of record. In December 2020, the Veteran was afforded a VA examination to determine the nature and etiology of his asthma. Upon review of the record and examination of the Veteran, the examiner diagnosed asthma and found that the Veteran's asthma was less likely than not incurred in or caused by service, to include asbestos exposure. In so finding, the examiner cited medical literature for the premise that asbestos exposure does not cause asthma. Rather, the examiner acknowledged the Veteran's smoking history and found that there was no medical evidence to associate the Veteran's asthma with his period of service. Upon consideration of the record, the Board finds that service connection for a respiratory disability is not warranted. While minimal asbestos exposure during service is conceded, on this record, there is no probative evidence linking the Veteran's current asthma to his in-service exposure. The most probative evidence on this issue of nexus consists of the December 2020 VA examination. The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, upon review of the record, to include the Veteran's contentions, the examiner found that there was no medical basis to associate asbestos exposure with asthma. The examiner discussed relevant facts in the Veteran's medical history, to include his smoking history, coupled with the lack of medical evidence of an association between asthma and asbestos exposure to support the negative nexus. As the opinion was well-reasoned and based on specific facts in the record, the Board assigns the negative nexus opinion high probative value. The only evidence in support of the claim consists of the Veteran's lay statements. As noted above, the Veteran is competent to attest to anything within his immediate purview, to include his observable symptoms and his various exposures. See Jandreau, 492 F.3d at 1377. However, he is not competent to provide a diagnoses or etiology of his symptoms; such conclusions require medical training and knowledge beyond the realm of immediately observable symptoms. The Veteran has not specifically described the onset of asthma in service and/or persistent or recurrent symptoms since service. There is competent medical evidence of normal lungs and chest at separation from service with a chest x-ray within normal limits (WNL) with no treatment for asthma in service. In May 2012, the Veteran himself described the onset of shortness of breath approximately three years prior. Notably, asthma is not deemed a chronic disease under 38 C.F.R. § 3.309(a) and testimony alone would be unable to establish an in-service onset. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). The Board finds that the credible lay and medical evidence reflects the onset of asthma many years after service. (continued on the next page) In sum, the record does not demonstrate that the Veteran currently has a respiratory disorder attributable to his period of service. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.