Citation Nr: 21031797 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-38 463 DATE: May 24, 2021 ORDER Service-connection for a lung disorder, claimed as pleural plaque thickening due to asbestos exposure, is denied. Service-connection for a chronic liver disease, diagnosed as hepatitis C, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's lung disorder, pleural plaque thickening due to asbestos exposure, began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's chronic liver disease, diagnosed as hepatitis C, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a lung disorder, claimed as pleural plaque thickening due to asbestos exposure, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a chronic liver disease, diagnosed as hepatitis C, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from December 1970 to July 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from Department of Veterans' Affairs (VA) Regional Office (RO) rating decisions denying service-connection for (1) a lung disorder, claimed as pleural plaque thickening due to asbestos exposure, and (2) a chronic liver disease, diagnosed as hepatitis C. These matters were previously before the Board in November 2018, where they were remanded back to the Agency of Original Jurisdiction for further development. These matters have now returned to the Board for adjudication on their merits. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38U.S.C.§§1110, 1131, 1153; 38C.F.R.§§3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38C.F.R.§3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Service-connection for a lung disorder, claimed as pleural plaque thickening due to asbestos exposure. In the Board's November 2018 decision, this matter was remanded to determine whether the Veteran's record contained any objective evidence to corroborate his claim that he was exposed to asbestos while serving. In particular, the remand requested that the AOJ comply with the administrative protocols outlined in the DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The DVB Circular does not create a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Nolen v. West, 12 Vet. App. 347 (1999); see also VAOGCPREC 4-2000; 65 Fed. Reg. 33422 (2000). Based on the DVB Circular guidelines, in order for a Veteran to establish entitlement to compensation based on exposure to asbestos, the evidence must show both in-service asbestos exposure, and a diagnosed disability that has been associated with in-service asbestos exposure. In this case, a diagnosis of an asbestos-associated disability has already been obtained in February 2012, the Veteran was diagnosed with lung pleural calcifications that were suspected to be secondary to asbestos exposure. A VA examiner in November 2019 confirmed that this was an asbestos-associated condition. Therefore, only the question of in-service asbestos exposure remains. As to specific exposure information, the Veteran made several assertions as to his exposure. He asserted that he believed he was exposed to asbestos while serving as a correctional specialist in Fort Jackson, where daily cleanups of the piping systems produced asbestos dust which he recalls inhaling. He also indicated that he was similarly exposed to asbestos during basic training at Ford Ord and during AIT at Fort Gordon, where cleaning asbestos-covered pipes and asbestos-backed flooring also produced asbestos dust. The National Personnel Records Center was contacted for any remaining records which may have contained information to support the Veteran's claim. The Veteran's full personnel record was produced multiple times, to include both administrative documents as well as service treatment documents. However, none of these records suggested that the Veteran had any asbestos exposure. Certain military occupational specialties (MOS) entailed a higher probability of exposure to asbestos. See VBA Manual M21-1, IV.ii.1.I.3.d., Use of Navy MOS to Determine Probability of In-Service Asbestos Exposure. The instant Veteran's MOS was that of a correctional specialist. This MOS is not one of those identified as having had probable exposure to asbestos. The November 2019 VA examiner opined that, assuming the Veteran's history is accurate in that he was buffing congoleum floors daily x 40 minutes/day in service from 1970-72, enough dust could be generated in that process and time frame to cause pleural plaques. While this opinion is positive, it is not probative for three reasons. First, the Veteran did not state that he buffed the floors daily for 40 minutes from 1970-72. He informed the examiner that "he can't recall seeing the dust for 90 days basic and 6 months for AIT." Hence, the duration of exposure was much less than that cited by the examiner. Second, the VA examiner's opinion was based on the assumption that the Veteran the floors being buffed were made from congoleum. The Veteran did not state why he thought the floors were made from congoleum; this appears to be a speculative inference on the Veteran's and examiner's part. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). Third, and finally, the examiner speculated that buffing the floor for 40 minutes per day for two years "could" generate enough dust to cause pleural plagues. Again here, the examiner is stating a speculative, conjectural premise, which is not probative. Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009). Pure speculation cannot form the basis for a grant of service connection. 38 C.F.R. § 3.102. Overall, the VA examiner's opinion, while positive, was based on multiple, conditional, inferences that are speculative at best. Hence, this part of the opinion is no more than hypothetical, and not probative support for the claim. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Another major consideration is the Veteran's post-service employment working at the Mare Island Naval Shipyard. VA has found that working in a naval shipyard does increase one's likelihood of asbestos exposure, going as far as to dedicate guidance specifically for the purpose of classifying asbestos exposure amongst Navy personnel. See M21-1, IV.ii.2.C.2.d., Occupational Exposures to Asbestos. While the Veteran reported in an October 2001 VA examination that he did work on naval ships during service once or twice a year and believed to also have been exposed to asbestos there, the Veteran also admitted in a September 1999 questionnaire that this employment exposed him to asbestos on a daily basis for approximately 30 years. Following the November 2019 VA examination, the examiner noted that asbestos incurrence was indeed likely from his post-service employment. Compared with the speculative and conditional part of the VA examiner's opinion, this part is much more definitive and cogent. Hence, it is probative. Hence, considering the facts in a light most favorable to the Veteran, it is less likely than not that the Veteran was exposed to asbestos in service. For all the foregoing reasons, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran's current pleural plaque thickening disability is related to service and, accordingly, service-connection must be denied. 2. Service-connection for a chronic liver disease, diagnosed as hepatitis C. The Veteran contends that he incurred hepatitis C in service due to sharing cigarettes, drinks, and razors with servicemen during his active duty. The claim is denied as there is no evidence of a nexus to service. While the Veteran finished service in 1972, he was not diagnosed with hepatitis C until August 2008. The record does not include any indications, nor has the Veteran ever claimed, that he began experiencing hepatitis C symptomatology proximate in time to service. The Veteran has proposed multiple theories of how he may have contracted hepatitis C in-service -- namely, though shared cups, cigarettes, and razors. However, a November 2019 examiner opined that it was less likely than not that the Veteran's current hepatitis C condition was contracted by any of the proposed in-service exposures. The examiner explained that any exposure due to drinking cups and/or cigarettes was unlikely, because the risk of incurrence was not appreciably increased by these means. The examiner explained that whatever potential risk of infection may exist from sharing razors was significantly outweighed by the substantial likelihood of hepatitis C infection from the Veteran's admitted years of intranasal and/or intravenous drug use. Records indicate that the Veteran used both intranasal cocaine and intravenous heroin both during and following his service, and ceased drug use in 1980. The examiner opined, citing medical literature, that these intranasal and intravenous means of incurrence were well-established means of exposure in the medical field, and therefore far more likely modes of contracting hepatitis C than from sharing razors. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the Board finds that the preponderance of the evidence is against a finding of service-connection for hepatitis C and entitlement to compensation for this disability must be denied. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Narnor, Harriyah 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.