Citation Nr: 21041842 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-47 726 DATE: July 10, 2021 ORDER As new and material evidence sufficient to reopen the previously denied claim for entitlement to service connection for asbestosis has been received, the application to reopen is granted. Entitlement to service connection for asbestosis is denied. FINDINGS OF FACT 1. An October 2015 Board decision denied entitlement to service connection for asbestosis; the Veteran did not appeal this denial to the Court of Appeals for Veterans claims; thus, the decision is final. 2. Evidence received subsequent to the Board's October 2015 decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for asbestosis. 3. The preponderance of the evidence is against finding that the Veteran has a diagnosis of asbestosis that began during service, was aggravated by service, or otherwise resulted from the Veteran's military service. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for asbestosis has been received; the claim is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for entitlement to service connection for asbestosis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1969 to May 1974 and from September 1975 to August 1979. The Veteran also served in the Air National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. The Board notes that, in a June 2021 rating decision, the RO granted service connection for diabetes mellitus, Type II, and assigned a 10 percent rating, effective October 2, 2018. As this issue on appeal was granted, the issue is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). 1. As new and material evidence sufficient to reopen the previously denied claim for entitlement to service connection for asbestosis has been received, the application to reopen is granted. This matter is on appeal from an October 2017 rating decision, which denied entitlement to service connection for asbestosis because it was decided that the evidence of record did not show that the Veteran has a diagnosis of asbestosis. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 11718. Here, the RO last denied service connection for asbestosis in June 2011 on the basis that new and material evidence had not been submitted. After the Veteran filed a notice of disagreement and substantive appeal, an October 2015 Board decision found that new and material evidence had been submitted but denied the claim as it found that the Veteran did not have a diagnosis of asbestosis. The Board notified the Veteran of this decision and how to appeal. The record shows that he did not appeal this decision to the Court of Appeals for Veterans Claims. Therefore, this decision is final. The Board acknowledges that the RO had reopened and adjudicated the service connection claim for asbestosis on the merits in an October 2017 rating decision and most recently in an October 2018 Statement of the Case. Despite the determination reached by the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen the Veteran's claims with respect to this issue. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The pertinent evidence received since the October 2015 Board decision denying the service connection claim included a December 2010 letter from a private physician who conducted an asbestos physical and diagnosed the Veteran with asbestosis. As this new evidence relates to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for asbestosis, the criteria for reopening a claim of service connection for asbestosis has been met and the claim is reopened. 2. Entitlement to service connection for asbestosis is denied. The Veteran contends that he has asbestosis due to his military duties as an Air Force mechanic. According to the Veteran, he was exposed to asbestos dust while performing brake jobs and changing clutches. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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); 38 C.F.R. § 3.303. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran submitted a letter dated June 2002 from a private physician that indicates chest x-rays show the presence of small opacities compatible with a mixed dust pneumoconiosis, which indicates asbestosis. The Veteran underwent a VA examination in October 2014. The examiner noted the Veteran's claim that he suffered from asbestosis as a result of his work as a mechanic while on active duty. The examiner took a chest x-ray and compared it to a chest radiograph from January 2012. The final impressions from the x-ray were that there was no radiographic evidence of asbestos exposure, no radiographic evidence for pulmonary asbestosis, and that while there was irregular density in the right upper lobe, this was most likely a postinflammatory scar. The lungs did not appear to have changed since the earlier January 2012 image. Thus, the examiner concluded that the Veteran did not have an asbestos-related lung condition. A November 2015 chest x-ray showed no evidence of pulmonary vascular congestion or pleural effusion. No acute pulmonary pathology was seen. The Veteran was provided a VA respiratory conditions examination in June 2017. The examiner opined that the Veteran's claimed condition of asbestosis was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner provided the following: After review of Veterans medical records, there is no evidence of a recent asbestosis diagnosis, and evidence is lacking from 2002 report by Dr. [G] stating likely the presence of asbestosis. His report is lacking a detailed explanation of the x-ray report and there is no PFT accompanied with his report. A later x-ray in 2014 impressions are: no evidence of asbestos exposure and not evidence for pulmonary asbestosis. The right upper lobe findings are likely from inflammatory scaring. The PFT performed in 2015 notes restrictive disease with no clear diagnosis. Restrictive disease is associated with fibrotic nature of asbestosis but could be other diagnosis and would need a specialist evaluation. The PFT did not address the physiologic abnormalities detected in asbestos-exposed patients which are reductions in the DLCO [diffusing capacity of the lungs for carbon monoxide] and pulmonary compliance and/or the presence of exertional hypoxemia. The Veteran does have significant [coronary artery disease (CAD)] and does experience some fatigue and occasional shortness of breath which could be attributed to his CAD. He is not on any medications and/or oxygen for his claimed lung condition. While his MOS as heavy equipment mechanic did possibly provide environmental exposure from brake pads and other mechanical parts which had asbestos the evidence does not support the diagnosis. In August 2017, the Veteran submitted a December 2010 letter from a private physician who conducted an asbestos physical of the Veteran. He reported that the Veteran's exposure began in 1966 when he was an Air Force mechanic working on brake linings and clutches. According to the physician's letter, the Veteran worked as a pipefitter and from 1973 to 1975 and from 1979 to 1985, which exposed him to asbestos as "asbestos was everywhere including pipe covering, insulation, etc." The physician noted that a chest x-ray, dated May 24, 2010, showed parenchymal abnormalities consistent with bilateral pneumoconiosis. No pleural abnormalities or other abnormalities were noted. The physician stated that it was his opinion within a reasonable degree of medical certainty that the Veteran has asbestosis as manifested by parenchymal abnormalities by chest x-ray and by his occupational history of exposure to asbestos by the latency period. The Veteran also submitted the May 2010 radiograph report referenced in the December 2010 physician's letter. The report indicated the type of reading was "B" and that the film quality was overexposed. It was reported that there were parenchymal abnormalities consistent with pneumoconiosis but no pleural abnormalities consistent with pneumoconiosis. The Board notes that, as reported in a May 2017 VA posttraumatic stress disorder examination, the Veteran's civilian occupation was as a pipefitter for 34 years. The Veteran's reported duties in the Air Force from 1966 to 1979 were heavy equipment, refueling, and military police. In October 2017, the Veteran was provided an addendum medical opinion to address the December 2010 letter from the private physician submitted by the Veteran in August 2017. The examiner provided the following opinion: There is no medical evidence that the veteran has an accurate diagnosis of asbestosis. He was noted to have had an evaluation in 2010 and a B-reading of a chest X-ray was noted to have minimal findings associated with asbestosis. However that same B-reading noted that the chest X-ray was overexposed and therefore this X-ray should not have been used for a B-reading. The veteran has had recent X-rays performed at the VA with one specifically looking for any sign of asbestosis and the report was negative for this dated 10/17/2014. He was also noted to have a normal chest X-ray on 11/30. The Board places the most weight on the October 2014 and October 2017 VA examiners' opinions. While the June 2002 and December 2010 letters from private physicians indicated that the Veteran had asbestosis, the more current VA examinations concluded that this was not the case. The October 2014 examiner cited to two separate imaging studies performed on the Veteran's lungs in support of this conclusion. The October 2017 examiner noted that the May 2010 film quality was overexposed and should not have been used for a B-reading. In addition, the examiner noted that an October 2014 x-ray was negative, and a November 2015 x-ray showed a normal chest. As described above, the first prong of a service connection claim is a current disability. The evidence does not demonstrate that the Veteran had asbestosis during the pendency of the appeal. The U.S. Court of Appeals for Veterans Claims has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for asbestosis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran's claim for asbestosis must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, 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.