Citation Nr: 21028746 Decision Date: 05/12/21 Archive Date: 05/11/21 DOCKET NO. 17-13 370 DATE: May 12, 2021 ORDER Entitlement to service connection for asbestosis is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's asbestosis is related to in-service asbestos exposure. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for asbestosis have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to January 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for emphysema, interstitial lung disease, and asbestosis. In September 2019, the Board remanded the Veteran's appeal to the RO for further evidentiary development. Entitlement to service connection for asbestosis is granted. In January 2016, the Veteran filed a claim for service connection for asbestosis. He contends that the asbestosis was caused by inhaling asbestos while repairing vehicles during his active duty service. 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, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (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 - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Turning to the evidence, the Veteran was diagnosed with bilateral pulmonary asbestosis in September 2015 by a private physician, Dr. W. The Veteran has credibly alleged that he was exposed to asbestos in service and such exposure is consistent with the duties of his military occupation (auto mechanic). Thus, the first two requirements of service connection have been met. Shedden, 381 F.3d at 1166-67. The third element of direct service connection is a nexus in this case, evidence that the Veteran's in-service exposure to asbestos caused his current asbestosis. On this question, there are multiple medical opinions. The September 2015 private medical opinion stated that "the Veteran's chest X-ray demonstrates parenchymal abnormalities as a result of his asbestos exposure." She noted the Veteran's in and post service exposure to asbestos and adequate latency period and wrote, "It is my professional opinion within a reasonable degree of medical certainty that this patient does have bilateral pulmonary asbestosis." The diagnosis of asbestosis reflects an opinion that the disease was caused by inhaling fibers of asbestos. See Crane v. Shinseki, No. 09-2053, 2011 U.S. App. Vet. Claims LEXIS 396 (Feb. 28, 2011) (mem dec) ("asbestosis" is defined in some medical references as "a form of pneumoconiosis (silicatosis) caused by inhaling the fibers of asbestos); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Although the Veteran had post-service as well as in-service asbestos exposure, reading the opinion as a whole and in the context of the evidence of record, including the reference to the latency period, it reflects a reasoned opinion that the Veteran's asbestosis was caused at least in part by his in-service asbestos exposure. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). A July 2016 VA medical opinion stated that the lung condition was less likely than not related to service because the Veteran had not been evaluated by a pulmonologist, he had smoked cigarettes for decades, and there was no evidence of causation. A February 2021 medical opinion stated that the Veteran's COPD and emphysema were more likely than not caused by the Veteran's years of smoking. The September 2015 medical opinion is supported by an article that the Veteran submitted in March 2017 which indicates that auto mechanical work can lead to asbestos exposure and asbestosis. While the July 2016 and February 2021 medical opinions are entitled to some probative weight, the September 2015 opinion is entitled to at least as much probative weight, in particular because it is supported by the March 2017 article. Sacks v. West, 11 Vet. App. 314, 317 (1998) (a medical article and treatise evidence "can provide important support when combined with an opinion of a medical professional"). The evidence is thus at least evenly balanced as to whether the Veteran's asbestosis is related at least in part to his in-service asbestos exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for asbestosis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that compensation is warranted for disability due to disease or injury in service and does not require that the current disability be completely due to an in-service disease or injury. 38 U.S.C. § 1110. In addition, the Veteran applied for service connection for asbestosis but the issue was broadened to include emphysema and COPD, which were diagnosed during the claim period, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). See July 1, 2016, and February 11, 2021 VA examinations. However, there is no evidence that emphysema or COPD are related to service or that a grant of service connection for those disabilities would increase the Veteran's compensation under the Rating Schedule. A separate decision as to entitlement to service connection for respiratory disability other than asbestosis is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.