Citation Nr: 0304917 Decision Date: 03/17/03 Archive Date: 03/24/03 DOCKET NO. 99-20 303A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), secondary to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Elizabeth Spaur, Associate Counsel INTRODUCTION The veteran had active service from October 1952 to September 1956 and from October 1956 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1999 decision by the Department of Veterans Affairs (VA) Denver, Colorado, Regional Office (RO). That decision denied service connection for COPD, secondary to asbestos exposure. FINDINGS OF FACT 1. All evidence necessary for review of the issue on appeal has been obtained, and the VA has satisfied the duty to notify the veteran of the law and regulations applicable to the claim, the evidence necessary to substantiate the claim, and what evidence was to be provided by the veteran and what evidence the VA would attempt to obtain on his behalf. 2. Evidence of record reasonably shows that the veteran was exposed to asbestos during service. 3. COPD is reasonably shown to be etiologically related to asbestos exposure during service. CONCLUSION OF LAW COPD, secondary to asbestos exposure, was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist As an initial matter, the Board observes that, during the pendency of this appeal, substantial revisions have been made to the laws and regulations concerning the VA's duties in developing a claim for a VA benefit. On November 9, 2000, the Veterans Claims Assistance Act (VCAA), Pub. L. No. 106- 475, 11 Stat. 2096 (2000) was enacted. The VCAA redefines the VA's obligations with respect to its duty to assist the claimant with the development of facts pertinent to a claim and includes an enhanced duty to notify the claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 1991 & Supp. 2002). See also Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). The final rule implementing the VCAA was published on August 29, 2001. 66 Fed. Reg. 45,620-45,623 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.156(a), 3.159 and 3.326(a) (2002)). These regulations, likewise, apply to any claim for benefits received by the VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by the VA as of that date, with the exception of the amendment to 38 C.F.R. § 3.156(a) (relating to the definition of new and material evidence) and to the second sentence of § 3.159(c) and § 3.159(c)(4)(iii) (pertaining to VA assistance in the case of claims to reopen previously denied final claims), which apply to any application to reopen a finally decided claim received on or after August 29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). In this case, the Board finds that all relevant facts have been properly developed in regard to the veteran's claim, and no further assistance is required in order to comply with the VA's statutory duty to assist him with the development of facts pertinent to his claim. See 38 U.S.C.A. § 5103A (West Supp. 2002); 38 C.F.R. § 3.159 (2002). Specifically, the RO has obtained records corresponding to medical treatment reported by the veteran and has afforded him a VA examination addressing his claimed disorder. There is no indication of additional relevant medical evidence that has not been obtained by the RO to date. The VA's duty to notify the veteran of the evidence necessary to substantiate his claim has also been met, as the RO informed him of the need for such evidence in a March 2001 letter. See 38 U.S.C.A. § 5103A (West 1991 & Supp. 2002). This letter, which includes a summary of the newly enacted provisions of 38 U.S.C.A. §§ 5103 and 5103A, also contains a specific explanation of the type of evidence necessary to substantiate the veteran's claim, as well as which portion of that evidence (if any) was to be provided by him and which portion the VA would attempt to obtain on his behalf. The specific requirements for a grant of the benefit sought on appeal will be discussed in further detail below, in conjunction with the discussion of the specific facts of this case. See generally Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Factual Background Service medical records indicate that a March 1954 chest x- ray report showed several small well-calcified densities in the right medial lung field below the hilum. There were a few fibro-calcific strands in the left third anterior interspace in the lateral lung zone. The impression was stable peripheral calcifications. A chest x-ray, taken at a September 1956 examination, showed an area of fibro-calcific disease in the left upper lobe, which appeared to be inactive. The impression was essentially negative. An October 1956 examination report noted that the chest x-ray was normal. A November 1956 chest x-ray report indicated there was a calcification in the left hilum, and a calcified parenchymal focus in the left mid-lung field. There was no evidence of active pulmonary disease at that time. A December 1956 service medical record indicated that the veteran was being treated for a cough. The x-ray report was negative, except for calcified lesions in the left hilum and parenchyma. An April 1969 service medical record reported that calcifications had been noted on the veteran's chest x- rays since 1956. The record also indicated there was no history of tuberculosis and previous tuberculosis tests had been negative. An April 1969 chest x-ray report showed calcified granulomata within the left hilar region. There was also a calcified granuloma within the lateral aspect of the left lobe and scattered smaller calcified granulomata within the same area. There was no evidence of active pulmonary disease. Examination reports dated March 1970 and January 1972 noted a history of granulomata on the veteran's chest x-rays. Service personnel records indicate that the veteran served aboard ships during his active naval service. A March 1999 letter from the veteran's private physician stated that the veteran reported being exposed to asbestos during service. The physician noted that the veteran had disabilities consistent with emphysema and restrictive lung disease. The physician stated that a combination of the veteran's "smoking and asbestos exposure [had] contributed to a combined obstructive and restrictive lung deficit." A November 1999 statement from the Navy Medical Liaison indicated that, although a positive statement that the veteran was or was not exposed to asbestos during service could not be made, asbestos exposure during service was "probable." An April 2001 VA examination report stated that the examiner had reviewed the veteran's medical records at the time of the examination. The diagnosis was COPD. The examiner noted that there was no evidence supportive of a diagnosis of asbestosis. She stated that "ties to service were not clearly established." An October 2002 VA examination report noted that the examiner reviewed the veteran's medical records. The diagnosis was mixed obstructive and restrictive lung disease "consistent with the combined effects of COPD secondary to smoking and asbestosis secondary to asbestos exposure during military service." The examiner stated that the veteran's pulmonary function test was consistent with a mixed disorder of obstructive and restrictive lung disease. He noted that it was "at least as likely as not that there [was] clinical evidence of mild asbestosis and chronic obstructive lung disease." He concluded his findings were similar to those of the veteran's private physician in the March 1999 letter. III. Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection may 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) (2002). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Analysis After having carefully reviewed the evidence of record, the Board finds that the evidence is at least in equipoise with regard to a grant of service connection for COPD, secondary to asbestos exposure. The United States Court of Appeals for Veterans Claims (Court) has held that in order to establish service connection, there must be evidence of both a service- connected disease or injury and a present disability which is attributable to such disease or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The Court has also held that generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Pond v. West, 12 Vet. App. 341, 346 (1999); see also Rose v. West, 11 Vet. App. 169, 171 (1998). The Board finds that the evidence of record shows that the veteran has a competent medical diagnosis of COPD. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A. § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service- related diseases and injuries to cases where the underlying in-service incident resulted in a disability). The question of whether the veteran's current diagnosis had its onset in or is otherwise related to active service, involves competent medical evidence as to medical causation. Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). The Board notes that there is no definitive statement affirming asbestos exposure during service. However, the Navy Medical Liaison did note asbestos exposure during service was "probable." There are three medical opinions of record regarding a nexus between the veteran's diagnosis of COPD and asbestos exposure in service. The March 1999 letter from the veteran's private physician noted that a combination of the veteran's "smoking and asbestos exposure [had] contributed to a combined obstructive and restrictive lung deficit." The October 2002 VA examiner specifically stated that the veteran's mixed obstructive and restrictive lung disease was "consistent with the combined effects of COPD secondary to smoking and asbestosis secondary to asbestos exposure during military service." In addition, the examiner noted it was "at least as likely as not that there [was] clinical evidence of mild asbestosis and chronic obstructive lung disease." The Board notes that the veteran's private physician did not provide a basis for his opinion. However, the October 2002 VA examiner did provide a basis for his opinion and noted that the veteran's medical records were reviewed. In addition, he concluded his findings were similar to those of the veteran's private physician in the March 1999 letter. A March 2001 VA examination report noted that the veteran did not have evidence supportive of a diagnosis of asbestosis. She stated that "ties to service were not clearly established." The Board notes that the examiner did supply a basis for her opinion and had reviewed the veteran's medical records. The Board finds that the evidence is at least in equipoise with respect to the veteran's claims. The record contains three medical opinions, two favorable and one unfavorable, that, viewed liberally, place the evidence in relative equipoise on the question of whether at least some aspect or portion of the COPD was secondary to asbestos exposure during service. A definite link is not required in order to establish service connection and opinions for and against the claim have plausible support and it does not appear necessary or appropriate to seek additional opinions or development given that those opinions on file are deemed competent and are balanced in terms of their evidentiary value. The Board is aware that each of the two favorable opinions attributes the veteran's COPD to both asbestos exposure and the veteran's smoking. However, the only issue before the Board is whether the veteran's current diagnosis of COPD may, in any way, have resulted, at least in part, from his military service. Both of these opinions indicate that, to some degree, the veteran's COPD is attributable to asbestos exposure during service. The Board is mindful of the policy considerations in 38 C.F.R. § 3. 303(a) to be applied in claims for service connection and general policy considerations set forth in 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519-20 (1997). Accordingly, service connection for COPD, secondary to asbestos exposure, is granted. ORDER Service connection for COPD, secondary to asbestos exposure, is granted. JEFF MARTIN Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.