Citation Nr: 0512244 Decision Date: 05/03/05 Archive Date: 05/18/05 DOCKET NO. 03-08 989 DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as secondary to asbestos exposure in service. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Linda F. McCain, Counsel INTRODUCTION The veteran served on active duty from December 1950 to December 1953. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This case was previously before the Board in February 2004 and was remanded to the Agency of Original Jurisdiction for additional development. The required development actions have been completed, and the case has returned to the Board for further appellate proceedings. In April 2005, a motion to advance this case on the Board's docket was granted due to the veteran's advanced age. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900 (2004). FINDINGS OF FACT 1. COPD has been diagnosed. 2. The veteran's military occupational specialty was apprentice heating specialist. 3. A preponderance of the competent medical evidence of record indicates that a nexus does not exist between chronic the veteran's military service and his currently diagnosed COPD; rather COPD has been medically ascribed to a lengthy history of tobacco use. CONCLUSION OF LAW Chronic obstructive pulmonary disease was not incurred in or aggravated by the veteran's military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks entitlement to service connection for COPD. In essence, he contends that COPD is the result of in-service asbestos exposure. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. The VCAA On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) [codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)]. The VCAA eliminates the concept of a well-grounded claim, and redefines the obligations of VA with respect to the duty to assist claimants in the development of their claims. First, under the VCAA the VA has a duty to notify the claimant and his representative of all information and evidence needed to substantiate and complete a claim. Second, the VCAA redefines the obligations of VA with respect to its duty to assist a claimant in the development of a claim. Notice VCAA notice letters dated in July 2002 and in February 2004 apprised the veteran of the information and evidence necessary to substantiate his claim. The veteran was specifically informed that in order to be successful in the service connection claim, the evidence had to show that there was an injury or disease in military service; there was a current disability; and there is a relationship between the current disability and the injury or disease in service. See the July 24, 2002 VCAA letter from the RO to the veteran, page 1 and the February 17, 2004 letter from the VA Appeals Management Center to the veteran, page 4. The VCAA letters also apprised the veteran as to which information and evidence, if any, that he is to provide, and which information and evidence, if any, VA will attempt to obtain on his behalf. See, in particular, the February 17, 2004 letter from the VA Appeals Management Center to the veteran, page 3. The Board finds that this correspondence satisfied VA's duty to notify the veteran, as required by Quartuccio v. Principi, 16 Vet. App. 183 (2002), 38 C.F.R. § 5103 and 38 C.F.R. § 3.159 (2004). The veteran was also advised to send any evidence in his possession, pertinent to the appeal, to VA. See the February 2004 VCAA letter, page 1. In essence, the veteran was asked to "give us everything you've got" with respect to the claim, in compliance with 38 C.F.R. § 3.159(b)(1). See Pelegrini v. Principi, 17 Vet. App. 412 (2004). The United States Court of Appeals for Veterans Claims (the Court) held that compliance with 38 U.S.C.A. § 5103 requires that the VCAA notice requirement be accomplished prior to an initial unfavorable determination by the agency of original jurisdiction. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the present case, the veteran's claim was initially denied in September 2002, after provision of VCAA notice in July 2002. Because the VCAA notice in this case was provided to the veteran prior to the initial AOJ adjudication denying the claim, the timing of the notice complies with the express requirements of the law as found by the Court in Pelegrini. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In this case the veteran's service medical records have been obtained. The veteran submitted private medical evidence, which will be discussed below. The veteran has also been provided with a VA examination and his VA medical records have been obtained. The veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. There is no indication that there exists any additional obtainable evidence which has a bearing on the veteran's claim which has not been obtained. In a letter dated February 10, 2005, the veteran's representative indicated that he had nothing further to submit. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim has been consistent with the provisions of the law. Pertinent law and regulations Service connection In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of 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. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual background The veteran's service medical records reveal no indication of a lung disability. The A chest X-ray taken in December 1953 was negative. The veteran was admitted to a VA hospital in March 1955 because he had been refused a food handlers' certificate on the basis of a positive chest X-ray finding earlier that month. X-rays of the chest failed to reveal any major pathology; a VA physician stated that the chest films were normal. The diagnoses were pulmonary fibrosis due to unknown cause, and calcification of lung due to unknown cause. The veteran was provided a special VA chest examination in April 1955. X-rays of the veteran's chest were noted to be normal. The diagnosis was no demonstrable pulmonary disease found. In January 1956, the veteran's chest X-rays taken during and after his period of active service were studied by a VA radiologist at the VA tuberculosis unit. Calcific densities were noted on films in December 1950, December 1953, March 1955, and April 1955. The physician concluded in substance that the X-ray films showed no active lung pathology throughout the veteran's period of active service. The veteran was hospitalized at a VA facility in February 1956 for complaints of frequent dry cough and an instance of coughing up blood. X-rays revealed bilateral basilar lung coarsening of markings. There were small calcific deposits in the right upper and lower lung. The cardiovascular silhouette remained within normal limits. Radiographs of the chest following the installation of contrast medium revealed no abnormalities of the lungs. The diagnosis was no pulmonary disease, with history of hemoptysis. The veteran was admitted to a VA hospital in September 1961 with complaints of coughing up blood. Chest X-rays upon admission were normal. Initial pulmonary function tests showed a severe, obstructive and restrictive deficit. Diagnoses included chronic bronchitis due to unknown cause and aggravated by inhalation of tobacco smoke; moderate obstructive pulmonary emphysema due to undetermined cause; and hemoptysis of undetermined cause. VA hospitalization in May and June 1962 resulted in pulmonary diagnoses identical to those given in the September 1961 VA hospitalization. The veteran was again hospitalized at a VA facility in November and December 1962, complaining of "sore lungs" and of being short-winded. The diagnoses were chronic bronchitis due to smoking tobacco, with hemoptysis, and obstructive pulmonary emphysema, due to unknown cause. The veteran was admitted to a VA hospital in January 1965 complaining of bad lungs. It was noted that the veteran had had five previous VA hospital admissions since 1955 for cough, exertional dyspnea, and squeezing soreness in the mid chest. The veteran reported hemoptysis every five to six months of pure blood for several weeks. The examiner noted that workups at the hospital had been negative except for bronchitis and emphysema. The diagnoses included obstructive pulmonary emphysema and chronic bronchitis. Subsequent medical records indicate continuing and ongoing pulmonary problems. The veteran submitted an October 2002 statement from D.W.B., his private physician. The physician noted that the veteran reported exposure to asbestos while in the military. He reported that that pulmonary function tests (PFT's) revealed the veteran to have moderate obstructive disease, small airway disease, and air trapping. Dr. D.W.B. stated that it was his opinion that the veteran had chronic pulmonary disease, however, the telltale signs of pulmonary fibrosis, including radiographic presence of linear opacities, a "ground glass" appearance in the lung fields, or classical honeycombed lung, which are hallmarks of pulmonary fibrosis, were not actually present in the veteran's chest X-rays. The veteran was afforded a VA respiratory examination in January 2003. The diagnoses were history of pulmonary fibrosis, with no evidence of fibrosis on chest X-ray, and chronic obstructive pulmonary disease. The VA examiner noted that history of asbestos exposure usually causes the development of fibrotic interstitial lung disease, i.e., pulmonary fibrosis. He further noted that complications of asbestos exposure included the development of lung cancer, mestheliomas, and pleural plaques. He stated that those complications had an increased risk of development with history of smoking. The VA examiner was of the opinion that the veteran's chronic obstructive pulmonary disease was most likely related to his history of chronic smoking for 58 years, and not to asbestos exposure. He indicated that the number one risk factor for development of chronic obstructive pulmonary disease was cigarette smoking. It was the physician's opinion that it was less likely than not that the veteran's asbestos exposure caused his onset of chronic obstructive pulmonary disease. He finally noted that pulmonary fibrosis secondary to asbestos exposure could cause aggravation of chronic obstructive pulmonary disease. In February 2005, Dr. D.W.B. opined that it was "quite possible" that the veteran's lung disease could have been caused by asbestos exposure; however, this would be "hard to prove". Dr. D.W.B. further stated that the veteran's smoking history made it difficult to completely blame asbestos for his problems. Analysis The veteran asserts, in substance, that he was exposed to asbestos when he assisted in the replacement of asbestos tape and blankets on tanks and lines on 27 steam boilers and hot water boilers in the barracks, mess halls, and recreation rooms on Griffiths Air Force Base in Rome, New York. He further asserts that his currently diagnosed COPD is the result of such asbestos exposure. As discussed in the law and regulations section above, service connection requires that three elements be met: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. With respect to the first Hickson element, it is uncontroverted that the veteran has COPD. Turning to the second element, in-service disease or injury, the Board will separately address the question of disease and injury. With respect to in-service disease, COPD was not diagnosed in service or for a number of years thereafter. There were equivocal x-rays in and after immediately service; however, VA examiners in 1955 and 1956 discounted any in-service disease based on review of those x-rays. With respect to in-service injury, in this case asbestos exposure, the Board finds that the veteran's military occupational specialty (apprentice heating specialist) and his own statements indicate that he was exposed to asbestos in service. The Board further observes in passing that in February 2005, the veteran was service connected for bladder cancer as secondary to asbestos exposure. Taking into consideration the veteran's in-service activities, the Board concludes that the veteran was exposed to asbestos in service, thus satisfying Hickson element (2). See McGinty v. Brown, 4 Vet. App. 428, 432 (1993) With respect to the third Hickson element, medical nexus, resolution of this issue requires competent medical evidence, which can be provided neither by the Board or by the veteran himself. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions] and Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992) [a lay person without medical training is not competent to comment on medical matters]. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, consistent with Colvin, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: 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. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The medical opinions of record hinge on the matter of the veteran's long-standing history of tobacco smoking, versus his history of asbestos exposure, as a cause of his current COPD. The VA examiner in January 2003 was of the opinion that the veteran's chronic obstructive pulmonary disease was most likely related to his history of chronic smoking for 58 years, and not to asbestos exposure. The examiner indicated that the number one risk factor for the development of chronic obstructive pulmonary disease was cigarette smoking. The VA examiner also opined that it was less likely than not that the veteran's asbestos exposure caused the onset of chronic obstructive pulmonary disease. This is powerful evidence against the claim. The veteran's private physician in February 2005 opined that the veteran's smoking history made it difficult to completely blame asbestos for his lung problems. The physician further opined that it was quite possible that the veteran's lung disease could have been caused by asbestos exposure; however, this would be hard to prove. The Court has held that medical evidence is speculative, general or inconclusive in nature cannot support a claim. See Obert, supra; see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Here, Dr. D.W.B.'s opinion is hedged in such a way as to be virtually meaningless. In essence, he admitted that he could not establish to any degree of certainty that asbestos exposure led to COPD. This statement is speculative and inconclusive in nature and as such cannot support a claim for service connection. See also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Moreover, the February 2005 statement of Dr. D.W.B. appears to be direct conflict with his earlier statement, dated in October 2002, in which he specifically discounted the presence pulmonary fibrosis based on his review of x-ray evidence. That earlier statement in fact is congruent with the opinion of the VA examiner, who noted in January 2003 that asbestos exposure usually causes the development of fibrotic interstitial lung disease, i.e., pulmonary fibrosis, and that with respect to this veteran there was no evidence of fibrosis on chest X-ray. In fact, Dr. D.W.B. elaborated in some detail as to why the x-rays were not reflective of asbestos exposure. Dr. D.W.B. stated that telltale signs of pulmonary fibrosis, including radiographic presence of linear opacities, a "ground glass" appearance in the lung fields, or classical honeycombed lung, which are hallmarks of pulmonary fibrosis, were not actually present in the veteran's chest X-rays. In short, a preponderance of the competent medical nexus evidence of record indicates that (1) x-ray evidence does not indicate that any residuals of in-service asbestos exposure exist and (2) the veteran's current COPD is due to his lengthy history of cigarette smoking not to asbestos exposure. For that reason, the third Hickson element, medical nexus, has not been met, and the veteran's claim fails on that basis. In conclusion, for the reasons and bases expressed above, the Board concludes that A preponderance of the evidence is against the veteran's claim of entitlement to service connection for COPD. The benefit sought on appeal is accordingly denied. ORDER Service connection for chronic obstructive pulmonary disease as secondary to asbestos exposure is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs