Citation Nr: 22002958 Decision Date: 01/20/22 Archive Date: 01/20/22 DOCKET NO. 18-13 838 DATE: January 20, 2022 ORDER Entitlement to service connection for respiratory disability, to include chronic obstructive pulmonary disease (COPD) and asbestosis, is denied. FINDING OF FACT The Veteran's respiratory disability is not related to active service. CONCLUSION OF LAW The criteria for service connection for respiratory disability, to include COPD and asbestosis have not been met. 38 U.S.C. §§ 1131, 5107 §§ 5107; C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from May 1960 to July 1963. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. In February 2020 and October 2020, the Board remanded the matter for further evidentiary development. With respect to the October 2020 remand, the agency of original jurisdiction obtained a February 2021 opinion which, for the reasons discussed below, was adequate to decide the claim. Thus, there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (substantial rather than strict compliance with the Board's remand directives is required under Stegall). Respiratory Disability Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in the active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that his respiratory disability is due to asbestos exposure during service. For the following reasons, the Board concludes that service connection for respiratory disability is not warranted. The Veteran's STRs are negative for complaints, treatment, or diagnosis of respiratory disability. At his July 1963 separation examination, his nose, sinuses, mouth, throat, and lungs were noted as normal. In an April 2017 statement, the Veteran asserted that his respiratory condition is due to asbestos exposure in the Navy. He stated that he remembered being very healthy and physically fit while he was in the service, however, it seemed like he had this congestion in his chest and throat all of his adult life. The Veteran noted that after he got out of the Navy, he worked as a pipe fitter for about 15 years, so was exposed to asbestos then as well. He further noted that after that, he took up the ministry full time, and no longer had exposure to asbestos or respiratory irritants after that time. The Veteran was afforded a VA examination in August 2017 where the VA examiner did not render a diagnosis. The VA examiner opined that the claimed condition was less likely than not occurred in or caused by the claimed in-service injury, event, or illness. The examiner cited an excerpt from UpToDate noting the lung function abnormalities seen in patients with asbestosis, which includes reduced lung volumes, particularly the vital capacity and total lung capacity, diminished DLCO, decreased pulmonary compliance, and absence of airflow obstruction by spirometry (normal ratio of the forced expiratory volume in one second to forced vital capacity). The examiner explained that the Veteran has only one of the four (diminished DLCO) which at this point is non-specific. The examiner noted that the pleural plaques on regular x-ray, commonly seen in asbestosis exposure, were not noted on any of the Veteran's chest x-rays. The examiner further noted that the job description of sonar operator on the USS Haynsworth would not reflect significant asbestos exposure. At his November 2019 Board hearing, the Veteran testified that he in fact had a great deal of asbestos exposure while serving aboard the USS Haynsworth, describing it as continuous. He testified that he spent a significant amount of his downtime in the boiler rooms with his best friend (which were full of asbestos), that the passageways on the ship with steam lines overhead hallways were full of asbestos, and that he slept every night directly below the mess decks where asbestos was lined in the floors to protect from fires. Additionally, he testified that he began having throat issues just prior to discharge from service. The Veteran noted that he and his colleagues did not go to sick bay unless they had to be carried there, so something like a throat issue was not the type of concern he would take to the doctor. In February 2020, the Veteran underwent a VA examination. A chest x-ray was performed, and the examiner diagnosed the Veteran with COPD. No PFT was performed due to the Veteran's blood pressure on arrival. The examiner opined that the Veteran's COPD is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that the Veteran has never been diagnosed with asbestosis nor has there ever been any evidence of asbestos related changes on chest x-ray or CT of the chest. The examiner agreed that asbestosis can cause COPD, and VA records from the past two years indicate the Veteran has been diagnosed and is currently being treated for COPD. The examiner noted there is no evidence of asbestosis. The examiner explained that without any evidence of asbestosis, it is impossible for asbestos exposure to cause his COPD. The Veteran had a CT of the chest in 2018, and radiologist interpretation of the lung fields was examined and reviewed in depth. The examiner further explained there is no evidence of pleural plaques or pleural thickening to indicate any evidence of asbestos disease. The examiner noted that while asbestos can cause COPD, there would need to be findings of pleural thickening/damage or plaques in order for it to cause COPD. The examiner further noted that she realizes the Veteran did quit smoking in 1969, however, the Veteran still does have a 20 year history of tobacco abuse. In May 2020, the Veteran's representative submitted several articles discussing an association between asbestos and lung diseases. The Veteran's representative noted that the VA examiner noted no evidence of pulmonary plaques but did not reference when the x-rays were taken or how the conclusion was reached without review by a pulmonologist who specializes in the field and is qualified to diagnose asbestosis. The Veteran's representative asserted that failure to diagnose a condition does not meant it is not there. The Veteran underwent another VA examination in December 2020, where he reiterated in-service asbestos exposure. He stated that he began to notice shortness of breath with exertion approximately 10 years ago and has a chronic cough that is productive at times. The examiner noted that due to risk of infection from Covid-19 virus pandemic, pulmonary function testing is contraindicated and is not performed due to risk of harm to the Veteran. In February 2021, VA obtained a medical opinion from a pulmonologist. The pulmonologist opined that the Veteran's claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The pulmonologist explained that a diagnosis of asbestosis requires a history of exposure which is not fulfilled in this Veteran in that the available history is that he was "around" undisturbed asbestos but did not work with or around asbestos that was disturbed by activity such as removal and replacement. The diagnosis also requires positive imaging studies that are not present in this case regarding interstitial, pleural or other thoracic disease related to asbestos. The pulmonologist further explained that COPD as a diagnosis requires the presence of obstruction which is defined by the FEV1/FVC ratio. This value is normal for this Veteran and, by definition he does not have COPD. The best diagnosis available based on symptoms of sputum production and response to bronchodilators is chronic bronchitis with reactive airways. This would be in the same general category as allergic disease such as asthma. There is no evidence for such a service connected disease process. The pulmonologist noted the articles by Yang and Emeagwali do not apply in that they both deal with populations defined asbestos disease by imaging, which does not apply to this Veteran. The article by Wilken is focused on fixed abnormalities and does not address airway responsiveness as seen in this Veteran. Additionally, the article by Wilken acknowledges heterogeneity (variability) of the articles reviewed and the fact that the lung function values were statistically lower than average but would not be of clinical importance as they did not fall outside of accepted normal limits. The pulmonologist further noted that he is an Internist and Pulmonologist having completed training in 1973 and with a current medical license and Board Certifications. Thus, in summary, the Veteran does not have commonly accepted criteria for asbestos disease including sensitive imaging studies and a history of exposure that does not rise to the levels (including the Reviewer's experience) seen in accepted cases of asbestos disease. The Veteran does not have the fixed obstruction of COPD and, by testing has a condition of chronic bronchitis with reactive airways. The pulmonologist indicated that condition is not connected to service related exposure to asbestos nor is it connected to other factors of service. The pulmonologist further indicated that he disagrees with the diagnosis of COPD given in the examination of December 2020 in that obstruction is not present using the commonly accepted defining value of FEV1/FVC. The pulmonologist concluded that the best diagnosis available chronic bronchitis with reactive airway. In a July 2021 statement, the Veteran indicated that he was reiterating what his representative stated, that the ordered testing could not be performed due to government regulations associated with the Covid pandemic. Thus, the examiner had nothing new to work with, so there was nothing upon which to base a new opinion. The Veteran contended that reference to the standards for examinations outlined in McCray v. Wilkie, 31 Vet. App. 243, 257-58 (2019) were needed, and it would be easy to see that his claim should not be denied without a thorough review of his military and medical history, in association with the current testing as ordered. He noted that this was why he provided the medical research about testing for lung disease associated with asbestos exposure. The VA examiners and pulmonologist explained the reasons for their conclusions based on an accurate characterization of the evidence, therefore, their opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The February 2021 pulmonologist's rationale for the negative opinion, he specifically addressed the articles submitted by the Veteran's representative discussing an association between asbestos and lung disease. Moreover, VA examiners and pulmonologist considered the Veteran's lay statements in their opinions and found that, even if credible, they did not indicate a nexus between the current disability and active service. The Board is cognizant of McCray, holding that "a medical text's qualifying or contradictory aspects may affect the probative value and adequacy of any ensuing medical opinion that relies on the text." Id. at 257-58. Here, however, the December 2020 VA examiner considered all aspects of the submitted literature. Not only did the December 2020 VA examiner indicate that there was a risk of harm in performing the respiratory testing due to the Veteran's blood pressure, but the February 2021 pulmonologist specifically considered the issue of whether testing was required to give an opinion and concluded it is was not. The pulmonologist did not rely entirely on the submitted medical research in forming his conclusion but, instead, considered all relevant facts in this case. Therefore, the Board finds the pulmonologist's opinion is an adequate medical opinion and the most probative evidence of record regarding the likely etiology of the Veteran's current respiratory condition. In addition, there is no contrary medical opinion in the evidence of record. To the extent that the Veteran asserts that a respiratory disability is related to service, he is competent to attest to his observations and the etiology of simple medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). He is not, however, competent to opine on complex medical matters such as the etiology of respiratory disabilities, which are questions that relate to internal medical process that extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n.4 (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). To the extent that the Veteran's statements are competent, the specific reasoned opinions of the VA examiners and pulmonologist are of greater probative weight than the Veteran's more general lay assertions. The Board appreciates the thorough and thoughtful statements and contentions of the Veteran and his representative. While the Board must render a decision which grants every benefit that can be supported in law while protecting the interests of the Government, 38 C.F.R. § 3.103(a), it is bound by the laws and regulations that apply to veterans' claims. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.105. For the above reasons, application of the law to the facts of this case reflects that the evidence is neither evenly balanced nor approximately so with regard to whether service connection for respiratory disability is warranted. Rather, the evidence persuasively weighs against service connection for respiratory disability. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102, is therefore not for application as to this claim. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.