Citation Nr: 21040549 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 15-41 654 DATE: July 5, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include as a result of asbestos exposure, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's respiratory disorder was incurred in service or was otherwise causally or etiologically related to service, to include asbestos exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for respiratory disorder, to include as a result of asbestos exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1954 to April 1958. The Veteran passed away in February 2018, during the pendency of this claim. The appellant is the Veteran's surviving spouse. This matter is on appeal from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter previously came before the Board in February 2018 and August 2019, whereupon it was remanded to allow for additional development, to include obtaining outstanding records and obtaining a VA etiology opinion regarding the Veteran's respiratory disorder. VA made multiple requests to obtain the outstanding records but found that they were unavailable. An etiology opinion was obtained in May 2021. Therefore, the Board finds that there has been substantial compliance with its remand directives, and no further action in this regard is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Provisions Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a respiratory disorder The appellant contends that the Veteran's respiratory disorder was related to his service. Specifically, he contends that he had asbestos exposure during service and while aboard various vessels, particularly the U.S.S. Chilton in June 1955, Pvt. Elden H. Johnson in December 1955, U.S.S. Olmsted in August 1957, U.S.S. Westchester County in September 1957 and APA 228 in January 1958. Service treatment records are silent for any complaints, treatments, and/or diagnoses relating to asbestosis or a respiratory disorder. Personnel records establish that the Veteran was indeed aboard each of the above named vessels at that times indicated. Exposure to asbestos was not noted in the service records. Post-service treatment records include March 2005 VA chest X-ray showing mild interstitial lung disease, a March 2014 VA chest X-ray showing fibrotic changes and pleural thickening and March 2015 and May 2015 X-rays showing chronic atelectasis. VA treatment records document the Veteran's respiratory diagnoses as chronic obstructive pulmonary disease (COPD), right pleural effusion, and right pleural thickening. The Veteran was provided a VA medical opinion in December 2019. The examiner opined that it was less likely than not that the Veteran's claimed respiratory disorder was incurred in or caused by his service. In his rationale, the examiner acknowledged the link between asbestos exposure and lung cancer but explained that there was no evidence in the record of the Veteran's exposure to asbestos nor any X-ray evidence of asbestosis. The examiner also opined that the Veteran's recurrent/chronic pleural effusion and scarring was due to congestive heart failure and later pneumonia but not asbestos exposure. The examiner explained that the fibrotic changes noted in the Veteran's lungs correspond to chronic inflammatory changes due to recurrent pleural effusion and not due to asbestos exposure. The examiner noted that the Veteran's military occupation specialty (MOS) provided minimal asbestos exposure. The examiner further concluded that the lengthy passage of time between the Veteran's minimal, if any, exposure to asbestos in-service and his death due to hypoxia/respiratory issues decades later, rendered it difficult to find any nexus or link between the two. The examiner further indicated that the March 2005 X-ray finding of mild interstitial lung disease was a common finding that may be related to other factors and that the March 2014 X-ray finding of fibrotic changes and pleural thickening are also common and may be related to other factors. The examiner further noted that the March 2015 and May 2017 X-ray findings showing chronic atelectasis were not findings that would be consistent with asbestos-related disease. The examiner opined that the Veteran's COPD was likely due to his tobacco use with recurrent chronic pleural effusion and scarring due to congestive heart failure and later pneumonia and that the fibrotic changes mentioned in the radiological studies later in 2013 correspond to chronic inflammatory changes due to recurrent pleural effusion. In a May 2021 addendum opinion, a VA examiner further noted that asbestos can cause lung cancer but there is no evidence of any exposure or X-ray evidence of asbestosis. The examiner also noted that pleural effusion thickening atelectasis interstitial lung disease are not signs of asbestosis and occurs with COPD and congestive heart failure. The Board notes that the Veteran and the appellant have contended that the Veteran's respiratory disorder is the result of his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's respiratory disorder and any instance or event of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran was competent to describe his symptoms and the appellant is competent to describe her observations regarding the Veteran's symptoms, the Board accords their statements regarding the etiology of the Veteran's respiratory disorder little probative value because he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issued. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing. In the instant case, there is no suggestion that the Veteran or the appellant has had any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinions of the Veteran and the appellant are non-probative evidence. Thus, upon a thorough review of the evidence of record, the Board finds that service connection for a respiratory disorder is not warranted. The Veteran's military occupational specialty was a wireman in a communication battalion and his military occupational specialty would have minimal exposure to asbestos. The December 2019 VA examiner reviewed the Veteran's entire file and found that his respiratory ailments, i.e. COPD, right pleural effusion, and right pleural thickening, were all unrelated to asbestos exposure and were instead more likely the result of tobacco use and other factors and a May 2021 VA examiner provided a consistent addendum opinion explaining that there was no X-ray evidence of asbestosis. The VA opinion and addendum opinion are more probative than the assertions of the Veteran and/or the appellant, as they are based on review of the record including the medical history as provided by the Veteran. Also, the conclusion is supported by a rationale. See Nieves-Rodriguez, 22 Vet. App. 295 (2008) (stating that most of the probative value of a medical opinion comes from its reasoning). There is no contrary probative opinion of record. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a respiratory disorder. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.