Citation Nr: 21029839 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-04 262A DATE: May 17, 2021 ORDER Entitlement to service connection respiratory disorder, to include calcified granulomatous disease (claimed as chronic cough) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's calcified granulomatous disease began during active service, or is otherwise related to an in-service injury or disease, to include his conceded in-service exposures to herbicides and/or asbestos. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, to include calcified granulomatous disease have not been met. 38 U.S.C. §§ 1110, 1116(f), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to April 1970 in the United States Navy. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office. In April 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. The Board remanded the matter in July 2018 and September 2020 for further development. Now the matter is returned to the Board. The Veteran is seeking service connection for a respiratory disorder, which he initially claimed as chronic cough. He contends that his exposures to herbicides and/or asbestos in service resulted in his current disability. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2020). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2020). Notably, calcified granulomatous disease is not listed under 38 C.F.R. § 3.309(e). A presumption of service connection based on the herbicide exposure in the Republic of Vietnam during the Vietnam Era is not warranted for various other condition for which the VA Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32395-32407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21258-21260 (May 7, 2009). However, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for a disability due to herbicides exposure. See Combee v. Brown, 34 F.3d 1039 (1994). Also, the regulation provides that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2020). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. The evidence shows that the Veteran has a current diagnosis of calcified granulomatous disease. However, as stated above, the Board notes that calcified granulomatous disease is not included under 38 C.F.R. § 3.309(e) among the presumptive diseases for herbicides exposure. The Veteran's record indicates his medical history of asthma, but asthma is also not listed under 38 C.F.R. § 3.309(e). Thus, the Board finds that the Veteran's entitlement to presumptive service connection for his respiratory disorder, to include calcified granulomatous disease is not warranted. 38 U.S.C. §§ 1110, 1116(f), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). Now the Board will examine whether the Veteran is entitled to direct service connection for a respiratory disorder. First, the evidence of record shows the Veteran's current diagnosis of calcified granulomatous disease although a November 2020 VA examiner confirmed that the Veteran does not have a current diagnosis of asthma. Thus, the first Shedden element for service connection have been met. As to the in-service incurrence of the Veteran's current disability, his service treatment record does not show any complaints, diagnosis, or treatment related to a chronic cough condition. However, VA conceded the Veteran's exposure to herbicides based on the Veteran's nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019. See March 2020 VA Memorandum. Further, the Veteran's in-service exposure to asbestos is conceded in light of his competent lay statements and evidence showing his service aboard the USS Ashtabula from October 1968 until separation. Thus, the second Shedden element for service connection is also met. However, the November 2020 examiner opined that the Veteran's claimed conditions, to include asthma and calcified granulomatous disease, are less likely than not incurred in or caused by a clinical onset during service, or in-service herbicides exposure and/or asbestos exposures. The examiner noted that the Veteran did not experience any respiratory symptoms during service, and his only symptom of coughing began in 1996. The examiner provided that the Veteran's documented calcified granulomas is a rare condition, and it is reasonable to assign the cause of his chronic cough to the rare condition of calcified granuloma as the record shows that several well-qualified specialists have failed to pinpoint the cause and common conditions have been ruled out as the cause. Notably, the examiner provided that extensive literature search has failed to establish a connection between herbicides and/or asbestos exposure and calcified granulomatous disease. The Board finds the November 2020 medical opinion to be competent and credible evidence and assigns high probative weight to it as the examiner rendered the opinion after a review of the Veteran's records and medical literature in conjunction with an in-person examination of the Veteran. The Board acknowledges that the Veteran's private physician L.H. provided a statement in April 2017 that "[h]is symptoms may be related to Agent Orange, Asbestos, or some other toxic exposure during Navy service in Vietnam." See Dr. L.H. Letter received on May 5, 2017. Although Dr. L.H. competent and credible to provide a medical opinion on the matter, the Board cannot assign more probative weight to his opinion because it is speculative in nature and no supporting rationale was provided. Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran's calcified granulomatous disease began during active service, or is otherwise related to an in-service injury or disease, to include his conceded in-service exposures to herbicides and/or asbestos. As the preponderance of the evidence against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Veteran's entitlement to service connection for a respiratory disorder, to include calcified granulomatous disease is not warranted. 38 U.S.C. §§ 1110, 1116(f), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.