Citation Nr: 21041647 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 13-09 778 DATE: July 9, 2021 ORDER Entitlement to service connection for a pulmonary disability, to include chronic obstructive pulmonary disorder (COPD), is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran's pulmonary disability, to include COPD, is due to or otherwise related to his service, to include any potential in-service exposure to asbestos. CONCLUSION OF LAW The criteria for service connection for a pulmonary disability, to include COPD, to include as due to asbestos exposure, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from March 1964 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2015, when it was remanded for further development, and addendum opinions were obtained in April 2015 and June 2015. In November 2019, the Board again remanded the claim in order to obtain VA treatment records, which were subsequently associated with the file. The Board again remanded the claim in January 2021 in order to obtain an addendum medical opinion. Entitlement to service connection for a pulmonary disability, to include COPD, is denied. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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); 38 C.F.R. § 3.303. 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. 38 C.F.R. § 3.303(d). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). However, in this case, there is no question as to whether the Veteran's claimed respiratory disability preexisted his active military service; the Veteran's March 1964 entry examination does not note any pre-existing respiratory conditions. The Veteran contends that his COPD is related to his established in-service asbestos exposure. The Veteran's service treatment records are silent with respect to treatment for asbestosis or COPD. Additionally, while there are a few treatment notes that discuss upper respiratory infections, the Veteran's chest x-rays are generally noted as being "negative" or "clear." The Veteran submitted a June 2008 private opinion from Dr. J.F.P. in which he was diagnosed with both asbestosis and obstructive lung disease. Dr. J.F.P. noted that the diagnosis of asbestosis was "within a reasonable degree of medical certainty" and was based on a chest x-ray as well as pulmonary function tests (PFT), physical examination, and work history. Review of the chest x-ray showed increased interstitial markings in both lower lung zones, calcific densities at the left perihilar zone, and some lipping of the dorsal spine. The PFTs showed diffusion capacity at 81 percent of the predicted amount, total lung capacity at 92 percent of the predicted amount, and best force capacity at 91 percent of the predicted amount. The Veteran was also noted as having smoked two packs of cigarettes a day for approximately ten years. The Veteran was afforded an in-person VA examination in November 2011, and addendum opinions from April 2015, June 2015, March 2021, and May 2021 were also obtained. In the November 2011 examination, the examiner diagnosed the Veteran with COPD; however, the examiner found there was insufficient evidence to support a diagnosis of asbestosis. The Veteran reported starting to get short of breath and coughing up phlegm, which led him to approach an asbestos lawyer that helped him get tested for asbestosis. He reported this test showed he had asbestosis, and he was also told he had COPD. He also reported currently having shortness of breath and a cough that produces phlegm. He did not report having any treatment at that time. The Veteran stated he did smoke about two packs a day for six years. He reported being exposed to asbestos during his time as an electrician in the Navy, having worked on an older aircraft carrier, and was also exposed to chemicals while working at Dow following service. Both a chest x-ray and high-resolution CT scan were performed during the examination, which the examiner found to show no evidence of asbestosis or COPD. The examiner also conducted PFTs, stating the Veteran's FEV-1 percent results of 75 percent and 79 percent most accurately represented the Veteran's current pulmonary function. The examiner opined that the Veteran does not have a diagnosis of asbestosis. Additionally, the examiner noted that the number one cause of COPD is smoking, and the Veteran smoked two packs per day for between six and ten years, and thus his COPD was not due to service. In the April 2015 addendum opinion, the examiner stated the Veteran still had a current diagnosis of COPD and that it had not gone into remission. Additionally, the examiner again noted the Veteran did not meet the criteria for asbestosis, and therefore his COPD could not be aggravated by asbestosis. The November 2011 high-resolution CT scan of the Veteran's lungs is the "gold standard" used to diagnose asbestosis, and the results of this scan showed no signs of asbestosis. The examiner further noted that a person can be exposed to asbestos without ever developing asbestosis. The examiner also opined that the medical evidence was against finding that the Veteran's COPD was aggravated either by asbestosis or by exposure to asbestos, referencing the fact that his COPD had remained stable over time. In the June 2015 addendum opinion, the examiner stated because the Veteran did not meet the criteria for asbestosis based on the imaging done at the November 2011 examination, there is no medical nexus between his in-service exposure to asbestos and his respiratory condition. In the March 2021 addendum opinion, the examiner reviewed the November 2011 examination and found the high-resolution scanning showed no asbestosis. The examiner explained that a person can be exposed to asbestos without any impact on their health, regardless of the source of asbestos exposure. Because the Veteran does not have asbestosis, the examiner opined that there was no mechanism for the Veteran's asbestos exposure to have affected his pulmonary functions. In the May 2021 addendum opinion, the examiner explains that while an x-ray can show issues in the lungs, the nature of how x-rays are created means that the resulting picture is affected by all the tissues, including skin, bones, soft tissues, heart and lungs. A CT scan is able to show separate tissues free of interference. The examiner refers to the CT as the "gold standard" compared to a standard x-ray. Even so, the November 2011 examination included both a standard x-ray as well as a CT scan, both of which showed the Veteran's lungs to be normal with the exception of healed granulomas that were not relevant to this case. The examiner explains that asbestosis scarring, once present, is not reversible, and thus the absence of any asbestosis scarring in 2011 "definitely excludes that diagnosis." The examiner also states that the June 2008 x-ray may have had limiting technical factors that indicated the possibility of asbestosis, while the newer technology shows there actually is no evidence of asbestosis. With respect to the PFTs, the examiner opines that these show at most very mild obstructive changes in the June 2008 tests, while the November 2011 PFTs show normal values. However, asbestosis is commonly associated with a decrease in lung volumes and the diffusing capacity for carbon monoxide, and these were not present in either PFT. Thus, the examiner found the PFTs do not support a diagnosis of asbestosis. The examiner further explained that the pulmonary community does not consider COPD to be an asbestos-related disease. While a few articles have raised the question of an association between COPD and asbestosis, the idea of COPD being caused by asbestosis is in doubt. The examiner found the Veteran does not have asbestosis, and thus this could not have any secondary effect on his COPD. The Veteran was diagnosed with COPD in June 2008 and has a current disease; thus, the first element of direct service connection has been met. However, he is not service connected for asbestosis or any other respiratory condition. Therefore, the Board will only address direct service connection going forward. VA previously conceded that the Veteran's work as an electrician in the Navy would likely have exposed him to asbestos, meeting the second requirement of service connection. The only remaining question is whether the Veteran's current respiratory disorder, diagnosed as COPD, is related to his in-service asbestos exposure, or to any other incident of servie. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge, and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008). Here, the November 2011, April 2015, June 2015, March 2021, and May 2021 opinions were all provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. However, while the November 2011, April 2015, June 2015, and March 2021 examinations address whether the Veteran has asbestosis and whether the Veteran's COPD is related to asbestosis, none of these examinations address whether the Veteran's COPD is directly due to his in-service asbestos exposure. As such, these examinations are of great probative value with respect to the issue of asbestosis, but they have no probative value with respect to the question of whether the Veteran's COPD is directly due to or aggravated by his in-service asbestos exposure. The May 2021 examiner addressed whether the Veteran's COPD was directly due to his in-service asbestos exposure. The examiner, who specializes in pulmonary conditions, explained how COPD is not considered to be an asbestos-related condition in the pulmonary community. Additionally, the examiner explained how while there are some articles which raise the question of association between asbestosis and COPD, the idea of causation is in doubt. The examiner also addressed the June 2008 positive diagnosis of asbestosis and explained that while there may have appeared to be asbestos-related changes in the chest x-ray, x-rays are prone to interference of other tissues, which could have impacted the images. However, high-resolution CT scans are higher quality images that have less interference from other tissues in the body, and thus would be the more accurate imaging for diagnosing asbestosis. The Board finds that the thoroughness and detail provided in the May 2021 examiner's opinion is of great probative value because it is based on the examiner's medical expertise as a pulmonary specialist and the examiner provides detailed rationales for their findings. The June 2008 private opinion by Dr. J.F.P. provided a diagnosis of asbestosis based on a chest x-ray and PFT results. However, the Board finds this diagnosis to be of lesser probative value than all of the VA examinations with respect to the diagnosis of asbestosis. As stated previously, Dr. J.F.P.'s diagnosis was based on chest x-ray results and PFT results, and he found this diagnosis to be "within a reasonable degree of medical certainty." The use of a chest x-ray for diagnosis is less accurate than the high-resolution CT scan. As such, the multiple VA opinions addressing the lack of asbestosis scarring and other evidence in the Veteran's CT scan images are of greater probative weight. The June 2008 examiner did not address whether the Veteran's COPD was directly due to asbestos exposure, and as such, the opinion is of no probative value with respect to that question. After reviewing the evidence of record, the Board finds that the Veteran's COPD is not related to service, specifically to include his in-service asbestos exposure. As noted above, the Veteran was not found to have a current diagnosis of asbestosis. Additionally, COPD is not an asbestos-related disease, and as such, the Veteran's in-service asbestos exposure did not directly cause his COPD. As explained by multiple VA examiners, the Veteran could well have been exposed to asbestos and yet never develop asbestosis or another asbestos-related disease. In reaching these conclusions, the Board is not downplaying the Veteran's service or his exposure to asbestos. However, the evidence of record does not support that his current COPD is related to service, to include any in-service asbestos exposure, and instead is more likely related to his history of smoking two packs per day for between 6 and 10 years. Thus, the Board finds that the evidence does not support a finding that the Veteran's COPD is due to service, to include asbestos exposure, and service connection for a respiratory disorder is not warranted. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims for entitlement to service connection for a respiratory disorder, to include COPD, must be denied. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.