Citation Nr: 21040041 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 14-43 656 DATE: July 2, 2021 ORDER Entitlement to service connection for respiratory condition is denied. FINDINGS OF FACT 1. The Veteran was exposed to both asbestos and herbicides during the course of his military career. 2. The Veteran's current respiratory conditions manifested many years after service and are not related to that service, to include herbicide or asbestos exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for respiratory condition have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Navy from July 1959 to July 1963 and September 1963 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In April 2017, the Board denied the claim for service connection. In October 2017 the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand citing the Board's failure to provide adequate reasons or bases in its denial. The issue was remanded for additional development in January 2018, June 2019, November 2020, and April 2021, and the case has since been returned for further appellate review. Service Connection 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Regulation provides that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to herbicide agents is not precluded from establishing service connection for such disability as due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. 1. Entitlement to service connection for respiratory condition The Veteran contends he is entitled to service connection for respiratory condition as a result of asbestos or herbicide exposure during his active duty service. The Veteran asserts he served eight years aboard various Navy ships, performing additional MOS duties that exposed him directly to asbestos. Alternatively, he asserts he was exposed to herbicide agents during his Vietnam service that resulted in his current respiratory condition. The October 2017 Joint Motion for Remanded concluded the Board did not provide adequate reasons and bases for denying the Veteran's service connection claim for several reasons. First, the parties agreed the Board failed to fully address the Veteran's contentions of asbestos exposure or make a credibility determination in discounting his testimony. In his April 2013 NOD, the Veteran objects to the August 2012 examiner's conclusion the he was exposed to asbestos in post-service employment rather than as a cook during service. The Veteran instead asserts he served aboard several ships over an eight-year span, with exposure on an ongoing 24-hour basis. He reports he worked at an oil and gas well for only nine months following service and as an assemblyman installing batteries for an automobile company for only three years. He contends the nature and duration of his post-service employment does not outweigh his exposure to toxic debris aborad Navy vessels in the 1950s and 1960s. Further, the Veteran contends he was assigned additional duty, including installing and removing bulkhead insulation as well as deck crew responsibilities. Second, the parties agreed the Board did not consider the Veteran's herbicide exposure as a potential cause of his respiratory condition. The Veteran asserts his private physician indicated several spots on his lungs found in 2011 were due to herbicide exposure. Third, the JMR concluded the Board did not satisfy the duty to assist in obtaining an adequate examination and opinion for the Veteran's COPD condition. The August 2012 and August 2014 examinations concluded the Veteran's COPD was not related to asbestos exposure, however they failed to opine whether the condition was related to service directly. The question for the Board is whether the Veteran has a current respiratory disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran originally filed a claim of service connection for asbestosis in December 2011. The claim was further developed throughout the appeal period and the Veteran was not shown to have a diagnosis of asbestosis. However, other respiratory diagnoses emerged and the claim was expanded in April 2017 as indicated on the title page of this opinion. The Board concludes that, while the Veteran has a current diagnosis of COPD and calcified granulomas, and evidence shows that in-service events occurred, the preponderance of the evidence weighs against finding that the Veteran's respiratory condition began during service or is otherwise related to an in-service injury, event, or disease, to include asbestos and herbicide exposure. As evidenced by VA and private treatment records, the Veteran has current diagnoses of bilateral calcified granulomas and chronic obstructive pulmonary disease (COPD), specifically emphysema centrilobular. Therefore, the first element of service connection is met. Military personnel records confirm the Veteran's military occupational specialty (MOS) as a commissaryman with service aboard the USS Leary (DD-879) beginning December 1966. The USS Leary is confirmed to have operated on the Mekong River Delta in October 1967. Therefore, the Veteran is presumed to have been exposed to herbicide agents as a result of his overseas service in the Vietnam War. Generally, the Veteran's MOS is assigned a "minimal" probability of asbestos exposure due typical MOS duties. However, the Board finds the Veteran competent and credible to report additional duty assignments as they are consistent with the circumstances of his service and are supported by his military personnel record. As such, the second element of service connection is satisfied. However, the Board finds the evidence does not establish a nexus to service, and therefore the remaining element necessary for service connection is not established. The Veteran was provided VA examinations in August 2012, October 2014, March 2018, November 2019, February 2021, with addendum opinions provided in January and May 2021. He has submitted private treatment records, to include the Mayo Clinic, covering various periods from 2004 to 2020. Thorough review of the evidence shows the Veteran respiratory conditions did not occur in-service, are not subject to presumptive service connection, but are instead related to intercurrent causes following his military separation. Private treatment records from Dr. MSC show X-rays taken in August 2004 originally identified increased interstitial marking bilaterally. Dr. MSC concluded the Veteran had asbestosis on the basis of X-ray imaging, decreased diffusion, and crepitant rales on examination. In January 2006, Dr. MSC again noted the Veteran's increased interstitial marking are consistent with asbestosis in the setting of appropriate occupational exposure. November 2010 treatment with the Veteran's cardiologist, Dr. DTK, show X-ray findings of small bilateral pulmonary nodules. The Veteran declined further evaluation, however, X rays taken November 2011 continued to show chronic interstitial changes and a diagnosis of COPD was given. A May 2012 Disability Benefits Questionnaire (DBQ) and diagnostic imaging were first completed regarding the Veteran's claim for asbestosis. X-ray results confirmed small nodules bilaterally and the examiner diagnosed the Veteran with interstitial fibrosis, noted as "likely asbestosis." However, pleural plaques consistent with asbestos exposure were not found. Private treatment records were subsequently submitted, and an August 2012 addendum opinion was provided. Noting the 2004 and 2006 private opinions, the examiner opined the Veteran's pulmonary interstitial fibrosis was at least as likely as not related to asbestosis, but concluded it was not related to service. The examiner relied on the Veteran's post-service employment to conclude any asbestos exposure more likely occurred after separation. However, the October 2014 VA examiner concluded the Veteran did not have a respiratory condition consistent with asbestosis. He reasons that serial studies conducted since the Veteran's provisional diagnosis failed to show findings consistent with asbestosis, noting a November 2013 private CT scan did not show results consistent with asbestos changes. He notes the 2004 private treatment records do not indicate biopsy was performed or that CT scans were available to the clinician. He further notes the November 2011 Mayo Clinic diagnosis of COPD did not discuss asbestosis or asbestos exposure, but instead notes a history of cigarette smoking. The March 2018 examiner concluded there was no pathology to render a respiratory diagnosis other than COPD, noting CT results were negative for asbestosis. The November 2019 examiner also concluded there was no evidence of any asbestos-related pulmonary disease stating, "While the veteran may have been exposed to asbestos while on active duty, there is no evidence of asbestosis, pulmonary plaque, or pulmonary fibrosis." He explained the Veteran's previous diagnosis of pulmonary fibrosis was made based on X-ray imaging, rather than CT scans, which is standard for making a diagnosis. He notes recent CT scans do not show evidence of any pulmonary fibrosis, however, the diagnosis of COPD remains. Similarly, the January 2021 examiner notes that although the veteran was given a provisional diagnosis of asbestosis in 2004, X-rays "merely indicate nonspecific inflammation, swelling, or scarring of the lung interstitium but are not detailed enough to substantiate findings for asbestosis." She further explains CT scans are used as the gold standard to diagnose and confirm respiratory conditions from asbestos exposure. She also opined the Veteran's 2004 pulmonary function testing (PFT) results showed a decreased diffusion capacity that is more pathologically consistent with COPD, and the Veteran's CT scans from 2016 to 2020 only note COPD and lung granulomas. Based on the conclusions of the December 2019 and January 2021 examiners, prior examinations and opinions relying solely on X-ray imaging to diagnose the Veteran's respiratory conditions are given little probative value, to include the private opinions from 2004 and 2006, as well as the May 2012 VA examination. Recent private treatment records include CT imaging that confirms the Veteran's current diagnoses of COPD and bilateral nodules. A March 2017 follow-up CT scan found the Veteran's lung nodules to represent granulomas with calcification, as lung cancer was ruled out. February 2018 private treatment shows the Veteran's right nodule resolved, however, his left lung nodule remained. The November 2019 examiner provided an explanation that benign granulomas are not due to asbestos exposure but instead fungi and mycobacteria. The January 2021 examiner similarly cites medical literature indicating pulmonary granulomas are pathologically caused by mycobacteria or fungi. She also notes a causal relationship between asbestos exposure and granulomas is not found in medical literature. The examiner indicates the Veteran's granulomas were likely caused by infection to the lungs after separation, noting in-service chest X-rays and separation exam results were normal. A May 2021 examiner concludes an opinion regarding in-service lung infection from mycobacteria or fungi is not possible without resorting to speculation. The examiner notes the Veteran's service treatment records are silent for a chronic respiratory disorder, lung cytology, or biopsy. Board review of the Veteran's service record and September 1969 separation examination confirms they are silent for complaints of respiratory symptoms, infections, or diagnosis. Further, the Veteran has not alleged an in-service respiratory infection or similar occurrence. The January 2021 examiner concluded, "considering the overall available medical treatment record, documentation, medical literature, diagnostic testing, and objective findings, it is unlikely that the Veteran's claimed respiratory disorder, to include COPD, is due to herbicide agents exposure or asbestos." She provided thorough review of the claims file, citing the frequency of private treatment notes discussing the Veteran's extensive history of smoking. The Veteran's private clinician notes he has been a smoker for over 60 years. This is supported by his July 1959 entrance examination which notes "mild shortness of breath during exercise, [Veteran] is a smoker." Mayo Clinic records throughout 2016, 2017, and 2018 indicate the Veteran had a smoking history of two packs per day, which decreased to one and a half packs of cigarettes per day. November 2020 notes indicate the Veteran continues to be a pack a day smoker. Mayo Clinic entries indicate the Veteran was counseled for smoking cessation techniques multiples times due to the known effects of smoking worsening COPD. The January 2021 examiner cites Mayo Clinic literature finding the main cause of COPD in developed countries is tobacco smoking. She further concludes the Veteran's COPD is more likely due to chronic smoking and less likely than not due to herbicide exposure or asbestos. An addendum obtained the following month indicates the January 2021 examiner's rationale is "supported by the current evidence-based medical literature." The November 2019 examiner also opined the Veteran's COPD (emphysema) "is directly related to his long history of smoking", as the most important risk factor contributing to the severity of COPD is the amount and duration of cigarette smoking. Citing private treatment records in support, The March 2018 examiner also concludes the Veteran's COPD is at least as likely as not the result of smoking and not caused by military exposures. The May 2021 examiner notes 2016 private treatment records indicate the Veteran's emphysema is "likely related to history of smoking" as well as previous two pack a day smoking behavior. He further notes the Veteran's shortness of breath may have cardiac etiology as well as COPD. The Board notes the Veteran's shortness of breath, or dyspnea, are often noted at treatment for his coronary artery disease (Diagnostic Code 7005) as a known symptom. Taken together, the several VA opinions of record establish that the Veteran's respiratory conditions are not at least as likely as not related to an in-service injury, event, or disease, including asbestos and herbicide exposure or fungal infection. As evidenced by the 2004 opinion of Dr. RCT, the Veteran's onset of symptoms began in 1999 and he was not diagnosed with a respiratory disorder until many decades after his separation from service. His service treatment record is silent for respiratory complaints and there is no indication he has a respiratory disorder subject to presumptive service connection for chronic diseases. The VA opinions are probative because they are based on accurate, updated diagnostic testing and are consistent with recent findings of the Veteran's private physicians. Private treatment records spanning a decade provide the examiners with an accurate medical history and frequent assessment of the Veteran's condition. The opinions provide clear conclusions and cite supporting medical data concerning various theories of entitlement. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiners indicate and note consideration of the Veteran's lay statements and facts relevant to the claim. As discussed above, the 2004 and 2006 private opinions of Dr. DTK and Dr. MSC are given less probative value, due to the Veteran lacking an asbestosis diagnosis. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Further, it has been noted, and more recent Mayo Clinic demonstrate, that CT scans are more appropriate for providing respiratory diagnoses. Therefore, opinions based solely on X-ray imaging are not afforded substantial probative value. The remainder of the Veteran's record does not indicate a positive nexus between his disorder and service, rather any mention of asbestos exposure in the private treatment record is found to be self-reported causes or history noted by the Veteran. Further, the claimed respiratory conditions are not among the "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to this case. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Notwithstanding asbestos and herbicide exposure, the medical record does not support exposure is the cause of the Veteran's disorder. Mayo Clinic records instead show a focus on the Veteran's extensive history of smoking with no further opinion regarding the Veteran's military service. As the disability is shown by VA examiners, and supported by private treatment records, to be attributable to intercurrent causes, the Veteran's COPD and granulomas are not otherwise etiologically related to an in-service injury or disease. While the Veteran believes he has a diagnosis of asbestosis, the medical evidence does not support such a conclusion. The Veteran is competent to report in-service experiences and respiratory symptoms, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of herbicide or asbestos exposure. The issue is medically complex, as it requires specialized medical knowledge of the pulmonary system and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The issue is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Id.; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence and the claim for service connection must be denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.N. Chapman, 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.