Citation Nr: 21027052 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-31 612 DATE: May 4, 2021 ORDER Service connection for a respiratory condition due to asbestos exposure (claimed as asbestosis) is denied. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's in-service asbestos exposure has led to a chronic disability, such as asbestosis. CONCLUSION OF LAW The criteria for service connection for a respiratory condition due to asbestos exposure (claimed as asbestosis) have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from May 1960 to January 1964. The matter is on appeal before the Board from a December 2014 rating decision. The Veteran was scheduled to appear at Board hearings in November 2018 and in May 2019. The Veteran postponed the November 2018 hearing and was a no show for the May 2019 hearing. The Veteran's hearing request was deemed withdrawn. The Board previously remanded the issue for further development in October 2020. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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). Respiratory Condition The Veteran asserts that he has a respiratory disability that is due to exposure to asbestos while serving in the military. Specifically, in a statement submitted in October 2014, the Veteran contended that he was exposed to asbestos while serving as a machinist repairman aboard the U.S.S. Trathen, the U.S.S. McMorris, and the U.S.S. Parsons. The Veteran reported that his duties involved working on valves, pumps, and machines that were covered in asbestos, and that the removal of asbestos packing material on valves and gaskets required him to scrape and grind the material causing fibers to become airborne and therefore inhaled. The Veteran's occupational specialty of machinist's mate is probable for asbestos exposure. Thus, in-service exposure to asbestos is conceded. A review of the Veteran's service treatment records (STRs) does not show any diagnoses for any respiratory conditions. Nor do they reflect any complaints or treatments that may be related to a respiratory condition. The Veteran has undergone two VA respiratory examinations in-person and one telephone interview over the course of the appeal. He first underwent a VA examination in December 2014, at which the examiner noted the Veteran to have a diagnosis of chronic obstructive pulmonary disease (COPD). The Veteran reported that in the last few years he had started coughing up phlegm and having shortness of breath. He acknowledged having smoked for a long time. He relayed that he had been told that he has asbestosis, but denied having undergone any lung biopsy. The examiner found that the Veteran did not have asbestosis and that it was less likely than not (less than 50 percent probability) that he had a disability that was caused by exposure to asbestos. In the examination report, the examiner noted that he had reviewed the Veteran's file, and that the Veteran had a diagnosis of COPD, airflow limitation, and asbestos exposure. The examiner did not see a diagnosis for asbestosis in the Veteran's file. There were no records of a CT scan. His pulmonary function tests with mild obstruction and normal DLCO would not indicate a diagnosis of asbestosis. The Veteran next underwent a VA examination in April 2017, at which the examiner reported the Veteran to have diagnoses of COPD and asbestos related pleural disease. It was noted that the Veteran had a long history of smoking, however, he no longer smoked, but he did still use smokeless tobacco. The examiner found that the Veteran's claimed condition of asbestosis was less likely than not (less than 50 percent probability) incurred in or caused by asbestos exposure in service. The examiner rationalized that while the Veteran has asbestos related pleural plaques noted on imaging, a diagnosis of asbestosis could not be made because there is no fibrosis on imaging. Due to the COVID pandemic, the Veteran was seen virtually via telephone in December 2020 for evaluation of possible asbestosis. He reported that he used to see a pulmonologist who had told him that he has asbestosis. He denied any current respiratory symptoms such as shortness of breath, cough, or wheeze. He sometimes feels a "little short of breath" when bending over, but that is the only time. He denied chest pain, orthopnea, edema, and PND. He relayed that he lives on a 2-acre lot, and that he walks all over it on a daily basis without difficulty. He had gone to compensation and pension at the Naval Weapons Station a few years prior after being told he had asbestosis. It was noted that the Veteran had smoked from age 18 to 25. Since then he had smoked cigars, and he still uses smokeless tobacco. The Veteran was assessed with mild COPD and benign asbestos pleural plaques. He had no sign of interstitial disease on chest x-ray, no symptoms of respiratory disease, and normal lung volumes. Thus, there is currently no evidence of asbestosis. In the medical opinion, the examiner reported that the Veteran was exposed to asbestos in the Navy, and as a consequence has benign asbestos plaques. However, there is no definitive evidence of asbestosis or other chronic asbestos exposure related respiratory disorder. The diagnosis of asbestosis was entertained and carried forward without meeting diagnostic criteria on the Veteran's record by an outside pulmonologist, who is no longer practicing. No physician at VA has agreed with the diagnosis, because the Veteran does not have restrictive dysfunction or a decrease in diffusion capacity on pulmonary function testing. His chest x-rays have shown the benign plaques, but have not been consistent with a diagnosis of asbestosis. The Veteran also stated that he did not have persistent dyspnea or cough. His pulmonary function testing is consistent with mild COPD, which is a smoking related condition not directly attributable to military service. A review of the Veteran's VA and private treatment records does not reflect any findings of any greater significance than those relayed above. In general, the Veteran's private treatment records show diagnoses of asbestos exposure, airflow limitation with COPD, and emphysema. Additionally, they show the Veteran to have a history of smoking. Based upon the foregoing, service connection for a respiratory condition is not warranted. The Veteran does not have a diagnosis for asbestosis. While the Veteran does have diagnoses for other respiratory conditions, they have not been shown to be related to his active military service, to include his in-service asbestos exposure. Rather, his diagnosis of COPD was contributed to his history of smoking in the December 2020 medial opinion. The Board notes that in the December 2020 medical opinion the Veteran's diagnosis of benign asbestos pleural plaques was attributed to asbestos exposure in the military. However, the diagnosis does not establish an asbestos related disability for which compensation is warranted, as there are no attributable symptoms. Rather, it simply suggests asbestos exposure in the past. The benign asbestos pleural plaques have only manifested in laboratory findings, they have not manifested as a disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (where the Court construed a disability as an impairment in earning capacity due to disease, injury, or defect). As such, the weight of the evidence is against the conclusion that the Veteran's in-service asbestos exposure has led to a disability such as asbestosis. Accordingly, service connection for a respiratory condition due to asbestos exposure is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.