Citation Nr: 0710870 Decision Date: 04/12/07 Archive Date: 04/25/07 DOCKET NO. 03-36 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for chronic bronchitis secondary to asbestos exposure. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Daniel Markey, Associate Counsel INTRODUCTION The veteran had active military service with the U.S. Coast Guard from March 1955 until retiring in March 1975. This case comes to the Board of Veterans' Appeals (Board) from a February 2002 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied the veteran's claims for service connection for asbestosis and chronic bronchitis, secondary to asbestos exposure. He appealed both claims. In April 2005, the Board remanded these claims to the RO via the Appeals Management Center (AMC) for further development and consideration. And an October 2006 AMC decision, on remand, granted the veteran's claim for service connection for asbestosis. There is no indication he has appealed either the 10 percent rating initially assigned for this condition or the effective date, so that claim has been resolved leaving only the claim concerning his chronic bronchitis. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement (NOD) must thereafter be timely filed to initiate appellate review of the downstream claim concerning the compensation level assigned for the disability). FINDINGS OF FACT 1. Chronic bronchitis was not initially manifested until many years after the veteran's service in the military had ended and is currently characterized as mild, with no lung involvement. 2. The preponderance of medical evidence shows the veteran's chronic bronchitis is unrelated to his military service - and, in particular, to asbestos exposure. CONCLUSION OF LAW The veteran's chronic bronchitis was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131, 5103A (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) redefined VA's duties to notify and assist the veteran in the development of a claim. The VCAA is codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2006), and the implementing VA regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate his claim, including apprising him of the evidence VA will attempt to obtain and the evidence he is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). To the extent possible, the notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of the notice are not prejudicial to the claimant. Id. See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), reversed and remanded, 444 F.3d 1328 (Fed. Cir. 2006), affirmed, No. 02-1077 (December 21, 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to cure a timing defect). In this case, in February 2001, July 2002, and April 2005 letters, the RO provided notice to the veteran regarding what information and evidence was needed to substantiate his claim, as well as what information and evidence he needed to submit, what information and evidence would be obtained by VA, and the need for him to advise VA of or submit any further evidence in his possession pertaining to his claim. The April 2005 letter specifically addressed his claim in the context of the predicated exposure to asbestos, as required by M21-1, Part VI, par. 7.21(d)(1). See also VAOPGCPREC 4- 2000 (April 13, 2000). This included providing a questionnaire to obtain information concerning his history of exposure and an explanation of how the RO would assist him. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes his service medical records (SMRs), service personnel records, asbestos literature, private medical records, lay statements, and VA treatment and examination reports. For these reasons, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no indication there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to him. See Pelegrini, supra; Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, as the Board concludes below that the preponderance of the evidence is against his claim for service connection, any question as to an appropriate downstream disability rating or effective date to be assigned is rendered moot. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Law and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2006). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 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). As to claims for service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). As to the M21-1, it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service [see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)]; determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there is a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) [see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)]. In this regard, the M21-1 provides the following non- exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, Part VI, par. 7.21(a)(1) & (2). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, Part VI, par. 7.21(b)(1). In addition, the M21-1 notes that, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos. See M21-1, Part VI, par. 7.21(b)(2). Next, the Board notes the M21-1 provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease [see M21-1, Part VI, par. 7.21(c)]; the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease [see M21-1, Part VI, par. 7.21(b)(2)]; and exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (Id.). The Court has held that the M21-1 does not create a presumption of exposure to asbestos during service for claimants that worked in one of the occupations that the M21- 1 list as having higher incidents of asbestos exposure. See also Dyment v. West, 13 Vet. App. 141, 145 (1999); Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993); and Ashford v. Brown, 10 Vet. App. 120 (1997). Therefore, in claims for service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to his disability was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In determining whether service connection is warranted, VA is responsible for considering both the positive and negative evidence. If the evidence, as a whole, is supportive or is in relative equipoise (i.e., about evenly balanced), then the veteran prevails. Conversely, if the preponderance of the evidence is negative, then service connection must be denied. See 38 C.F.R. § 3.102 (2006); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet App. 518, 519 (1996); See also Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) ("[T]he VCAA simply restated what existed in section 5107 regarding the benefit-of-the-doubt doctrine" and does not mandate a discussion of all lay evidence of record.) Here, the veteran contends that - not only does he have asbestosis as a result of exposure to asbestos while serving aboard ship in the United States Coast Guard, but he also has chronic bronchitis. As mentioned, he has established his entitlement to service connection for the asbestosis; the AMC granted this benefit in October 2006, following the Board's prior remand. But his chronic bronchitis is an entirely different matter. In this, and in other cases, only independent medical evidence may be considered to support Board findings. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Here, nothing on file shows the veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). While the medical evidence shows the veteran was exposed to asbestos during service in the manner alleged and has been diagnosed with bronchitis (in addition to the asbestos- exposure-related disease, asbestosis), the preponderance of the competent medical evidence on file shows his bronchitis is at most mild, does not actually involve his lung, and most importantly is not attributable to his military service - including the exposure he had to asbestos. The veteran's service personnel records show he had a 20-year career with the United States Coast Guard. During that span he served onboard numerous ships including the Beech, Campbell, Oak, Maple, and Firebush. His service medical records are unremarkable for disease or injury involving his lungs or respiratory system in general. He retired from the Coast Guard in March 1975. In a September 1996 outpatient note the veteran reported a history of smoking 3 packs of cigarettes per day for several years before quitting in 1973. He complained of mild sputum production, worse at night. X-rays from that month revealed increased bronchovascular markings in the middle and lower lung fields, which were thought to represent chronic bronchitis. The following year, in June 1997, he was found to have a resolved case of clinical pneumonia and his diagnosis of chronic bronchitis was carried forward. Complaints of coughing and yellow sputum continued through June 1998, and his diagnosis of bronchitis was shown in outpatient records through March 1999. A computerized tomography (CT) scan of the veteran's chest in November 2001 revealed multiple pleural plaques, bilaterally. Several of these plaques were described as calcified and one of them produced a nodular silhouette. No pulmonary mass lesions were seen and no acute disease was observed. Based on that CT scan, a private physician stated the veteran had asbestosis. And based on the veteran's report, the examiner found there to have been significant exposure to asbestos. The physician also reported observing "what sound[ed] like a fairly chronic cough with production of brownish phlegm", indicating the veteran reported a history of chronic bronchitis. In March 2003, the veteran was accorded a VA examination for respiratory diseases. He reported a history of serving on ships that were had pipe insulation made from asbestos. He reported his pertinent diagnoses as well, and complained of intermittent shortness of breath and difficulty with exertion. He reported no dyspnea at rest and no cyanosis, and said that he got bronchitis three times per year, requiring treatment with antibiotics. He did not then have a history of requiring medicine for this condition, including the use of bronchodilators. On objective physical examination, the veteran had no abnormalities. The examiners overall impression was that of a history of asbestos exposure and apparent increasing of shortness of breath. Further testing, including x-ray and pulmonary function tests (PFTs), were required before the veteran's condition could be diagnosed. The chest x-ray came back negative and the PFT was normal, too. In April 2003, the examiner concluded there was no evidence of asbestosis. Correspondence from a private physician, received in August 2004, stated the veteran was suffering from chronic cough and shortness of breath. Based upon the November 2001 CT scan and the veteran's complaints, the private physician found the veteran likely had asbestos exposure while serving with the Coast Guard in 1955 (to 1975). In a note dated in August 2005, a VA nurse practitioner opined that the chest x-ray is the most common tool used to detect asbestos-related disorders. She added that x-rays usually show pleural changes in people who have been exposed to asbestos. She described these pleural changes as plaques, thickening, and effusion, which were not shown on the veteran's March 2003 x-ray. Accordingly, a negative diagnosis was given with respect to any respiratory disease. In January 2006, following the Board's remand, the veteran was provided another VA examination for respiratory conditions. His pertinent service and medical history was discussed and his claims file reviewed. The examining physician reviewed internet research on the topic of asbestos exposure and attached these records to his report. He weighed the use of objective evidence from x-rays and CT scans. He also noted the time lapse and latency periods between initial exposure and subsequent manifestations. Based on his assessment, he concluded the veteran's lung problems were at least as likely as not related to asbestos exposure onboard his ship. He then stated that sequalae of this exposure includes bronchitis and chronic bronchitis, which he believed to be current diagnoses for the veteran. Another VA examination was provided in September 2006. The veteran's claims file again was reviewed and pertinent past service and medical history discussed. PFTs were conducted and analyzed, but the results were considered difficult to interpret due to the veteran's reports of fatigue with the effort. The examiner noted that a repeat test might be considered, if needed. A CT scan was also performed and it showed minimal lower lobe interstitial prominence and pleural disease bilaterally with localized areas of soft tissue thickening as well as calcification compatible with a history of asbestos exposure. However, the examiner added there was no significant involvement of the veteran's lungs at that time. The examiner then summarized his findings. He indicated there was pleural calcification that was more likely than not due to asbestosis. Some inspirational crackles were noted, but again there was no significant lung involvement per the CT scan. He did state that the pulmonary crackles were attributable to the mild interstitial pulmonary fibrosis that was due to asbestosis. After again discounting the reliability of the PFTs, the examiner indicated the veteran's flow volume loop was normal based on post bronchodilation results. He stated there is most likely an absence of airway obstruction. Based on all of these factors, he concluded the veteran's exertional dyspnea was also attributable to his asbestosis. Specifically, however, with respect to the veteran's bronchitis, the examiner stated the veteran had this condition by history, that it was mild based on the absence of airway obstruction in studies conducted that day, and most importantly that it was unrelated to asbestos exposure. Other relevant evidence of record includes outpatient treatment notes. VA outpatient notes from August 2005 indicate the veteran had no significant complaints, including dyspnea. He was found to have reactive airway disease by history. Other notes from August 2005 record his history of cigarette abuse and indicate a history of "apparent reversible airway disease well controlled with the use of Avadair." The veteran has also submitted internet articles describing asbestosis and addressing likely sources of contamination. It is clear from the medical and other evidence in this case that the veteran has suffered from lung problems that are at least partly attributable to his military service. Indeed, this was readily acknowledged in the AMC's October 2006 decision granting service connection for asbestosis. But the same is not true of his chronic bronchitis because, although he has it (or at least has at various times in the past), this condition, unlike his asbestosis, has not been etiologically linked to his military service - and, in particular, to exposure to asbestos. See Hickson, supra. So his bronchitis claim must be denied. At his March 2003 VA examination, the veteran said that he gets bronchitis three times per year and requires treatment with antibiotics. But based on x-rays and PFTs that indicated no abnormalities, he was not diagnosed with any conditions at that time, including chronic bronchitis. This is probative evidence that, despite subjective complaints to the contrary, there were no medical findings of chronic bronchitis at that time. In the August 2004 private physician's letter, there was again no mention of bronchitis. In August 2005, another letter from a VA nurse practitioner indicated a normal respiratory system as well. So there was no finding of bronchitis between March 2003 and August 2005. In VA examinations that followed, divergent opinions emerged regarding the etiology of the veteran's claimed condition. The January 2006 VA opinion states his chronic bronchitis is related to his military service whereas the September 2006 VA examination report says he does not have chronic bronchitis attributable to his military service. In deciding a claim, it is the Board's responsibility to weigh the evidence (both favorable and unfavorable) and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. See Schoolman v. West, 12 Vet. App. 307, 310-311 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is also mindful that it cannot make its own independent medical determination and there must be plausible reasons for favoring one medical opinion over another. Evans at 31; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Here, there is a legitimate basis for accepting the opinion of the September 2006 VA examiner over that of the January 2006 examiner. The January 2006 VA examiner stated the veteran has chronic bronchitis as a result of his exposure to asbestos during service. That opinion, however, does not appear to have been based on any current objective clinical findings; for instance, there was documentation of auscultation, pulmonary function, or radiological studies. So while that examination reportedly was based on a comprehensive review of the medical evidence, which did not show a diagnosis of bronchitis for at least three years prior, there were no current clinical findings to support the examiner's diagnosis and, more importantly, its relationship to the veteran's military service - to asbestos exposure especially. The September 2006 VA examination, in comparison, not only included comprehensive testing of the veteran's pulmonary function, but also included a physical evaluation and CT scan. And based on the results, this examiner conceded the veteran had pleural thickening attributable to asbestos exposure in service. But he also specifically pointed out there was no lung involvement. He noted the records showing the veteran's bronchitis by history, but determined the condition was mild as of the time of that examination and, most importantly, was unrelated to asbestos exposure. That physician's comprehensive review of the claims file, including, notably, the January 2006 opinion, is of greatest contribution to the probative value of the September 2006 opinion because it was fully informed and had the proper factual foundation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (discussing access of examining physician to the veteran's claims file as key factor in evaluating the probative value of a medical opinion). By contrast, the January 2006 examiner did not indicate in his report that his current findings were derived based upon a comprehensive physical examination. So given the basis of the September 2006 examiner's opinion in both the record and his objective clinical evaluation, it deserves greater probative weight. See Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Owens v. Brown, 7 Vet. App. 429 (1995); Swann v. Brown, 5 Vet. App. 229, 233 (1993). Thus, the most probative evidence addressing the determinative issue of causation is against the veteran's claim for service connecting his chronic bronchitis - again, as opposed to his asbestosis. For these reasons and bases, the claim for service connection for chronic bronchitis must be denied because the preponderance of the evidence is unfavorable - in turn meaning there is no reasonable doubt to resolve in the veteran's favor. See 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. at 519 (1996). ORDER The claim for service connection for chronic bronchitis secondary to asbestos exposure is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs