Citation Nr: 0308060 Decision Date: 04/29/03 Archive Date: 05/06/03 DOCKET NO. 00-14 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as secondary to asbestos exposure. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD K.Y. McLeod, Associate Counsel INTRODUCTION The veteran had active service from October 1955 to May 1974. This matter is on appeal to the Board of Veterans' Appeals (Board) from a February 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the veteran's claim of entitlement to service connection for COPD, including as secondary to exposure to asbestos in service. The veteran filed a timely notice of disagreement and the RO subsequently provided a statement of the case (SOC). In May 2000 the veteran perfected his appeal, and the issues were subsequently certified to the Board. The veteran presented for a hearing before a Hearing Officer at the RO in November 2000; a transcript is of record. FINDINGS OF FACT 1. The competent evidence of record indicates that the veteran worked on Naval ships as a mechanic in engine rooms and auxiliary machine rooms from 1955 to 1974. 2. The veteran began complaining of shortness of breath, weight loss, increased fatigability, rib cage and paraspinous pain, and chest pain between 1988 and 1990, approximately 15 years after service. 3. The competent medical evidence of record is at least in equipoise as to whether the veteran's current diagnosis of COPD is due to exposure to asbestos in service. CONCLUSION OF LAW Giving the veteran the benefit of the doubt, his current pulmonary disorder, including COPD, was incurred in service as a result of asbestos exposure. 38 U.S.C.A. §§ 1110, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background Service medical records are silent for any complaint, treatment, or diagnosis of chronic obstructive pulmonary disease. Service personnel records indicate that the veteran worked as a Chief Machinist's Mate in the main engine rooms and the auxiliary machinery rooms. He repaired refrigeration and air conditioning units. The veteran also completed fire- fighting school. During his career the veteran was stationed above various Naval ships, including the USS Niagara Falls, USS Jason, USS Hull, USS Ozbourn, USS Whitehurst, and the USS Dixie. In December 1969 the veteran was awarded the Navy Achievement Medal, with Combat "V" based upon his service aboard the USS Niagara Falls as Chief Petty Officer from April 7 to October 4, 1968, during combat operations against the enemy. After retiring from the Navy, the veteran worked for a chemical company. Treatment records indicate that the veteran was seen at the Amarillo Diagnostic Clinic from July 1988 to July 1990. He presented with complaints of shortness of breath, weight loss, increased fatigability, rib cage, and paraspinous pain, and chest pain. The veteran reported an extensive history of cigarette smoking. The veteran was diagnosed with COPD, which was attributed to his history of smoking. VA outpatient treatment records indicate that the veteran quit smoking in 1988. His diagnosis of COPD was continued. Laboratory findings from Health Examinetics, dated in September 1989, indicate questionable plaque in the right lateral pleura. In a VA consultation report dated in March 1992, Dr. C. Funderberk indicated possible asbestosis. The veteran presented for a hearing before a local Hearing Officer in November 2000. He testified that while in the Navy he had worked as a crash fire fighter at NAS Greenfield, where he wore suits that he stated contained an outer layer composed of asbestos. Then the veteran reported working on various ships in engine rooms and fire rooms. According to the veteran, he also worked with refrigeration, air conditioning, hydraulics, and evaporator flaps. The veteran further testified that, on occasion, asbestos fell from the pipes that he handled. He also stated that asbestos was used in insulation, and that many of the engine rooms had silicon asbestos materials. He reported mixing asbestos with water to repair piping. He acknowledged that he worked for a chemical company after service, and that some of the buildings had fiber pieces with asbestos shielding around them. He also reported that there was asbestos that came from some of the boiler pipes. However, he denied working on piping or any equipment that contained asbestos. He submitted a buddy statement from J. S., who reported being on board the USS Dixie with the veteran from 1962 to 1963. According to J.S., he worked with the veteran in the fire room and engine room where they handled asbestos material almost daily. He indicated that they frequently used an asbestos cloth to cover asbestos-based insulation on various piping. J.S. also reported receiving bags of asbestos fiber in bags and mixing it with water in containers to make moldable insulation for pipes, pumps, and compressors. His wife and representative assisted the veteran in his testimony. The veteran was provided a VA examination in December 2000. Dr. J. Riker noted review of the veteran's claims folder and his contention that he was exposed to asbestos while in the Navy. She also noted Dr. Funderberk's opinion that the veteran's pulmonary condition might be related to asbestos exposure. Physical examination revealed 90% oxygen saturation levels even after walking for five minutes at the veteran's own pace. His lungs were clear to ausculation bilaterally, and his heart rate and rhythm were normal with no murmurs, rubs, or clicks. The veteran was diagnosed with COPD, moderately severe, which the examiner stated was as likely as not related to the veteran's history of cigarette smoking. Dr. Riker opined that there was minimal evidence of asbestosis. The veteran was treated from March to April 2001 at the National Jewish Medical and Research Center. In March 2001 probable pleural plaques were noted; however, the films were inadequate for interpretation. The impression was pleural and parenchymal evidence of pneumoconiosis. The examiner also noted that there was a question of saber sheath tracheal deformity that could represent significant underlying obstructive airway disease. In December 2002 the Board determined that further development was required in this matter. Pursuant to authority granted by 67 Fed. Reg. 3,009, 3,104 (Jan. 23, 2002) (now codified at 38 C.F.R. § 19.9(a)(2) (2002), the Board sought to obtain records concerning the veteran from the Social Security Administration (SSA), and requested that the veteran be afforded another VA examination to determine whether the veteran's current respiratory/pulmonary condition was at least as likely as not due to exposure to asbestos in service. In December 2002, SSA indicated that the agency could not locate the veteran's folder. Subsequently, the veteran presented for a VA examination in February 2003, in accordance with the Board's development request. Clinical evaluation revealed mild obstructive disease, with lung volumes within normal limits. Chest X-rays showed moderate hyperinflation, which the examiner noted was most likely due to COPD. There was no pleural effusion or pulmonary vascular congestion and his cardiothoracic ratio was within normal limits. The examiner concluded that, based upon the veteran's long history of asbestos exposure, "as well as an appropriate delay period between exposure and onset of symptoms, it is at least a 50/50 probability that [the veteran's] current COPD condition may be traced back to heavy asbestos exposure while on active duty." II. Analysis A. Preliminary Matters In November 2000, during the pendency of this appeal, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. § 5103 (West 2002)). VA has long recognized that the Department has a duty to assist the veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.103(a) (2002). The recent changes in law have amended the requirements as to VA's development efforts in this, and other pending cases, modifying and clarifying VA's duty to assist a claimant in evidentiary development. See VCAA, supra. See generally Holliday v. Principi, 14 Vet. App. 280 (2001). In addition, VA has published new regulations to implement many of the provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2002)). Judicial case law is inconsistent as to whether the new law is to be given retroactive effect. The U.S. Court of Appeals for Veterans Claims has held that the entire VCAA potentially affects claims pending on or filed after the date of enactment (as well as certain claims that were finally denied during the period from July 14, 1999, to November 9, 2000). See generally Holliday v. Principi, supra; see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). That analysis would include cases that had been decided by the Board before the VCAA, but were pending in Court at the time of its enactment. However, the U.S. Court of Appeals for the Federal Circuit has held that only section 4 of the VCAA (which eliminated the well-grounded claim requirement) is retroactively applicable to decisions of the Board entered before the enactment date of the VCAA, and that section 3(a) of the VCAA (covering duty-to-notify and duty-to-assist provisions) is not retroactively applicable to pre-VCAA decisions of the Board. See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002) (stating that Dyment "was plainly correct"). Although the Federal Circuit appears to have reasoned that the VCAA may not retroactively apply to claims or appeals pending on the date of its enactment, the Court stated that it was not deciding that question at this time. In this regard, the Board notes that VAOPGCPREC 11-2000 (Nov. 27, 2000) appears to hold that the VCAA is retroactively applicable to claims pending on the date of its enactment. Further, the regulations issued to implement the VCAA are expressly applicable to "any claim for benefits received by VA on or after November 9, 2000, the VCAA's enactment date, as well as to any claim filed before that date but not decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001). Precedent opinions of the chief legal officer of the Department, and regulations of the Department, are binding on the Board. 38 U.S.C.A. § 7104(c) (West 2002). Therefore, for purposes of the present case, the Board will assume that the VCAA is applicable to claims or appeals pending before the RO or the Board on the date of its enactment. The VCAA contains a number of new provisions pertaining to claims development procedures, including assistance to be provided to claimants by the RO, and notification as to evidentiary requirements. We have carefully reviewed the veteran's claims file, to ascertain whether remand to the RO is necessary in order to assure compliance with the new legislation. We note that the development of medical evidence appears to be complete. By virtue of the SOC and the SSOCs provided by the RO in March 2000, February 2001, and March 2002, the veteran has been given notice of the information and/or medical evidence necessary to substantiate his claim. More specifically, in the March 2000 SOC, the veteran was advised that the RO would obtain VA treatment records and any adequately described private treatment records on his behalf, if he so requested. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (noting that VA must communicate with claimants as to the evidentiary development requirements of the VCAA). See also Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). It thus appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for an equitable disposition of this appeal. Moreover, he has been clearly advised of the importance of his cooperation with VA in reporting for medical examination, to generate up-to-date evidence as to his claim for service connection, and he has so reported. We further note that, under new 38 C.F.R. § 20.903 (2002), the Board is generally required to provide notice of any additional evidence secured on development pursuant to new 38 C.F.R. § 19.9(a)(2) (2002). However, given the disposition below, the Board concludes that such notice is unnecessary in the present case. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertaining to his claim, under both former law and the new VCAA. 38 U.S.C.A. § 5107(a) (West 2002); Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-98 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103 and 5103A (West 2002)). The Board therefore finds that no useful purpose would be served in remanding this matter for more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no benefit flowing to the veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In fact, the Court has stated, "The VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims." Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). B. Discussion In general, under pertinent law and VA regulations, service connection may be granted if the evidence establishes that the veteran's claimed disability was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.306. Notwithstanding the lack of a diagnosis during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in, or as a result of, service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). While there is no current specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations, VA has issued procedures on asbestos-related diseases which provide some guidelines for considering compensation claims based on exposure to asbestos, in the VA Adjudication Procedure Manual, M21-1, Part VI, Para. 7.68 (Sept. 21, 1992) (formerly DVB Circular 21-88-8, Asbestos-Related Disease (May 11, 1988)). VA has acknowledged, after consideration of medical and scientific principles, that a relationship may exist between asbestos exposure and the development of certain diseases, including pulmonary fibrosis and lung cancer, which may occur 10 to 45 years after exposure. When considering VA compensation claims, adjudication personnel have the responsibility of ascertaining whether available military records demonstrate evidence of asbestos exposure in service, and to assure that evidentiary development is accomplished to ascertain whether or not there is pre-service and/or post- service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed disease(s), keeping in mind the latency and exposure information noted above. In the present case, the veteran served as a Chief Machinist's Mate in the United States Navy for almost twenty years. He worked in the main engine and auxiliary machinery rooms. He was responsible for maintenance and repair aboard various U.S Naval vessels. In his sworn testimony before the Hearing Officer, the veteran reported using asbestos-based insulation in repairing pipes, pumps, and compressors. The Board notes that the veteran was awarded the Navy Achievement Medal with the Combat "V" for service rendered during combat operations against the enemy from April 7 to October 4, 1968, while aboard the USS Niagara Falls. Recognizing that the veteran has demonstrated no particular medical expertise, the Board finds him to be a credible witness with regard to his in-service exposure to asbestos in the line of his duties as a machinist's mate. In the absence of any evidence to the contrary, a combat veteran's assertions of the incurrence of a disease or injury in service, when consistent with his duties, may establish actual exposure. 38 U.S.C.A. § 1154(b) (West 2002). The competent evidence of record indicates that the veteran is a combat veteran. Additionally, his allegations of exposure to asbestos are consistent with his duties as a machinist's mate. Recognizing that his combat service represented only a portion of his military career, and that he does not assert that enemy activity caused his disability, nevertheless, for the reasons discussed above, the Board finds that competent evidence of record indicates that the veteran was exposed to asbestos in service. Now the Board must turn its focus to whether the veteran had any intervening pre-service and/or post-service exposure to asbestos. The record is silent for any evidence of pre- service exposure. After retiring from the Navy, the veteran worked for a chemical company. He testified that some of the buildings had fiber pieces with asbestos shielding around them, and that there was asbestos used on the boiler pipes. However, the veteran denied working on piping or any other equipment that contained asbestos. In the absence of any evidence to the contrary, the veteran's personal report of exposure will thus be accepted. Finally, the Board recognizes that the competent medical evidence of record indicates that the veteran began complaining of shortness of breath, weight loss, increased fatigability, and chest pain in 1988. At the time he was diagnosed with COPD, which that examiner attributed to his prolonged history of cigarette smoking. However, laboratory findings in 1989 indicated a questionable plaque in the right lateral pleura. In March 1992, Dr. Funderberk indicated possible asbestosis. Dr. Riker opined in December 2000 that there was minimal evidence of asbestosis. Furthermore, the VA examiner in February 2003 noted X-ray evidence of moderate hyperinflation of the lungs. The examiner concluded that the veteran's history of exposure and an appropriate delay between exposure and onset of symptomatology makes it at least as likely as not that the veteran's current COPD may be traced back to his heavy asbestos exposure while on active duty. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2002); VCAA § 4, 114 Stat. 2096, 2098-99 (2000) (now codified as amended at 38 U.S.C.A. § 5107(b) (2002)). In the present case, there is competent medical evidence that the veteran's current COPD is related to years of cigarette smoking. However, there is also competent medical evidence that his condition is related to extended asbestos exposure in service. Under the specific and unique facts of this case, the Board finds that the competent medical evidence of record is in relative equipoise, and that the veteran is entitled to the benefit of the doubt. Accordingly, the veteran is entitled to service connection for COPD, claimed as secondary to asbestos exposure. ORDER Service connection for COPD, claimed as secondary to asbestos exposure in service, is granted. ANDREW J. MULLEN Veterans Law Judge, 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.