Citation Nr: 0725215 Decision Date: 08/14/07 Archive Date: 08/20/07 DOCKET NO. 06-23 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide (Agent Orange) exposure. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as lung disease, to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. J. O'Mara, Associate Counsel INTRODUCTION The veteran had active military service from February 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In February 2007, the veteran, sitting at the RO, testified during a hearing conducted via video-conference with the undersigned Acting Veterans Law Judge, sitting at the Board's main office in Washington, D.C. A transcript of the hearing is of record. The United States Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), that reversed a decision of the Board that had denied service connection for disabilities claimed as a result of exposure to herbicides. VA disagrees with the Court's decision in Haas and appealed that decision to the United States Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on a court holding that may ultimately be overturned on appeal, on September 21, 2006, the Secretary of Veterans Affairs imposed a stay at the Board on the adjudication of claims affected by Haas. The specific claims affected by the stay include those based on herbicide exposure in which the only evidence of exposure is receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. In this case, the veteran has claimed that his diabetes mellitus is the result of herbicide exposure. Since one of the veteran's theories involves the issue affected by Haas, his claim for entitlement to service connection for diabetes mellitus is stayed until a final resolution of the Haas appeal. Once a final decision is reached on appeal in the Haas case, the adjudication of any cases that have been stayed, including this one, will be resumed. There has since been an appeal contesting whether VA, and the Board in particular, has the authority to temporarily suspend paying out benefits to those veterans who would benefit from the holding in Haas on the premise that decision eventually may be overturned on appeal. See Ribaudo v. Nicholson, 21 Vet. App. 137 (2007) (en banc). The Court's Ribaudo order stays the adjudication of cases before VA affected by Haas, but provides a case-by-case exception to prospectively continue advancing cases on the docket - and deciding them under the Haas' standards, if there are compelling reasons to do so. FINDING OF FACT The objective and probative medical evidence of record preponderates against a finding that the veteran has a lung disease, diagnosed as COPD and emphysema, related to his period of active military, including exposure to asbestos. CONCLUSION OF LAW COPD, claimed as a lung disease, to include as due to exposure to asbestos, was not incurred during active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 and Supp. 2006) include enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). Notice requirements under the VCAA essentially require VA to notify the appellant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirement 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). VCAA-compliant 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, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a January 2005 pre-rating letter, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The letter also requested that the veteran submit any evidence in his possession that pertained to the claim. Further, the July 2005 RO rating decision reflects initial adjudication of the claim after issuance of that letter. Clearly, this letter meets the VCAA's timing of notice requirements. Regarding Dingess/Hartman, the November 2006 supplemental statement of the case (SSOC) informed the appellant how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations. Regarding the timing of the notice, the Board finds that the veteran was not prejudiced by receiving notice after the initial adjudication of his claim. Because the Board's decision herein denies the claim for service connection, no disability rating or effective date is being, or is to be, assigned. Accordingly, there is no possibility of prejudice to the appellant under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent evidence associated with the claims file consists of the veteran's service medical records, service personnel records, post- service private medical records, post-service medical records from the VA Medical Center (VAMC) in Huntington, West Virginia, and a VA examination report. In addition, the veteran testified during a hearing before the undersigned the transcript, of which, is of record. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the appellant has been notified and made aware of the evidence needed to substantiate the 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 additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Significantly, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Thus, any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error and affirming that the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Legal Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); see also, Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discusses the development of asbestos claims. VAOPGCPREC 4-00. VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. M21-1, Part VI, para. 7.21 contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Noted is that the latent period 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). M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. In sum, these guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; the rating specialists are to develop any evidence of asbestosis exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. Again, these guidelines are not a legal presumption for service connection. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). Here, the objective and competent medical evidence in this case fails to show the presence of a chronic lung disorder until many years after service and there appears to be no basis to link any currently diagnosed lung disorder to service unless it is due to alleged asbestos exposure. In fact, the 2005 VA examiner attributed the veteran's COPD to smoking cigarettes. In this case, the Board notes that the veteran's service personnel records show that he served in the United States Navy and worked as a structural mechanic on airplanes, repairing aircraft wheels and brakes. The veteran testified during his February 2007 Board hearing that the brakes from the aircrafts had asbestos in the linings. For the purposes of the discussion herein, the Board would concede that, based on the veteran's military occupational specialty (MOS), it is possible he may have been exposed to asbestos during service. Nevertheless, considering the medical evidence of record in light of the above-noted criteria, the Board finds that service connection for COPD, claimed as a lung disease, including as secondary to asbestos exposure, is not warranted. The veteran's service medical records do not reflect any complaints or diagnoses of, or treatment for, a lung disease. The veteran asserts that while he was stationed on the USS KITTYHAWK, his MOS was a structural mechanic, which required him to work on the wheels and the brakes of aircraft. He testified during his February 2007 Board hearing that he worked on asbestos brake linings. He also stated that his jobs after the service entailed truck driving and bartending, neither of which created any exposure to asbestos. Therefore, the only asbestos exposure that he reports is during service. The first diagnosis of a lung disease shown in the probative medical evidence of record is in March 1998, approximately 30 years after the veteran's discharge from service. The private medical record from H.T., M.D., apparently the veteran's internist, reflects that the veteran reported being in the military on an aircraft carrier and that he was exposed to asbestos. He stated that he did not do any direct maintenance of boilers and areas with asbestos. Dr. H.T. stated that results of a chest X-ray showed increased interstitial markings with bilateral pleural involvement suggestive of asbestosis. The clinical assessment included asbestosis and chronic smoker's bronchitis. A March 1998 private medical record from L.G., R.N., indicates a diagnosis of COPD, mild. A September 1998 private medical record from M.R., M.D., shows a diagnosis of COPD. In April 2005, the veteran underwent VA examination for respiratory disorders. According to the examination report, the examiner was a board-certified thoracic surgeon. Upon clinical examination and review of results of pulmonary function tests and a high resolution computed tomography (CT) scan, the examiner diagnosed the veteran with COPD and emphysema (described as the end result of COPD) due to smoking cigarettes. It was noted that the CT of the veteran's chest revealed emphysema. In the VA examiner's opinion, based on results of the CT of the veteran's chest, there was no evidence of pleural plaque and no evidence of interstitial lung disease characteristic of asbestosis, thus no evidence of asbestosis. The Board finds that the evidence in its entirety does not show that it is at least as likely as not that the veteran's current lung disorders are the result of his military service, including asbestos exposure. Even assuming, arguendo, that the veteran may have been exposed to asbestos in service, while diagnosed as suffering from lung pathology consistent with COPD, VA radiologists have interpreted his CT scan to show emphysema. See e.g., Degmetich, Brammer, and Rabideau v. Derwinski, 2 Vet. App. at 144 (service connection requires medical evidence showing that the veteran has the claimed disability.). There is no current clinical evidence of asbestosis. In support of his claim, the veteran would point to the diagnosis rendered in March 1998 by Dr. H.T., that was based upon the x-ray findings only suggestive of asbestosis. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Further, a medical opinion isn't adequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1993). A bare conclusion, even when reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (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). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. at 470-71. Here, the Board the finds the April 2005 VA examiner's report to be most persuasive in that this physician is a board- certified thoracic surgeon who reviewed the probative clinical findings, including results of the high resolution CT scan, examined the veteran, and concluded that the veteran had COPD and emphysema that was attributed to smoking cigarettes. In this regard, the Board notes that Dr. H.T.'s March 1998 diagnosis of asbestosis was based upon results of a chest x- ray that were only suggestive of asbestosis. Nor did Dr. H.T. provide clinical evidence to support his belief, and his opinion, although doubtless sincerely rendered, is for that reason not accorded great weight by the Board. See Bloom v. West, supra. See also Black v. Brown, 5 Vet. App. at 180 (A medical opinion is inadequate when it is unsupported by clinical evidence.). Moreover, the 2005 diagnosis of COPD is consistent with the remaining medical evidence of record, to include the March 1998 and September 1998 private medical records that also show a diagnosis of COPD. Further, the fact that it was the veteran's treating physician, Dr. H.T., who diagnosed him with asbestosis- without more-does not add significantly to the probative value of an opinion as to causal relationship. The Court has expressly declined to adopt a "treating physician rule" which would afford greater weight to the opinion of a veteran's treating physician over the opinion of a VA or other physician. See, e.g., Winsett v. West, 11 Vet. App. 420 (1998), citing Guerrieri v. Brown, 4 Vet. App. 467 (1993). As well, there is no evidence showing that the veteran's current lung disease is related to any other injury or disease in service. There is no other medical evidence of record attributing the veteran's lung disease to any injury or disease in service and neither the veteran nor his representative has even suggested that his lung disease is related to any other injury or disease that occurred in service. In addition to the medical evidence, the Board has considered the veteran's assertions, to include those advanced during the February 2007 Board hearing. While the Board does not doubt the sincerity of the veteran's belief that he has a lung disease that is related to asbestos exposure in service, this claim turns on a medical matter of etiology. However, the veteran does not meet the burden of presenting evidence as to medical cause and effect, or a diagnosis, merely by presenting his own statements, because as a layperson he is not competent to offer medical opinions. The Court has made this clear in numerous cases. See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). There is no evidence showing, and the veteran does not assert, that he has had sufficient medical training to provide competent medical evidence as to the etiology of his claimed lung disease. The Board finds a lack of competent medical evidence to warrant a favorable decision. The Board is not permitted to engage in speculation as to medical causation issues, but "must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision." Smith v. Brown, 8 Vet. App. 546, 553 (1996). Here, the appellant has failed to submit competent medical evidence to provide a nexus between any in-service injury or disease and the conditions that caused and contributed to his currently claimed lung disease. The preponderance of the evidence is therefore against the appellant's claim of entitlement to service connection for COPD, claimed as a lung disease, including as due to exposure to asbestos. We have considered the doctrine of reasonable doubt. Under that doctrine, when there is an approximate balance between evidence for and against a claim, the evidence is in equipoise, there is said to be a reasonable doubt, and the benefit of such doubt is given to the claimant. 38 U.S.C.A. § 5107(b); see Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); 38 C.F.R. § 3.102. However, when the evidence for and against a claim is not in equipoise, then there is a preponderance of evidence either for or against the claim, there is no reasonable doubt, and the doctrine is inapplicable. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Based upon the evidence of record, service connection for COPD, claimed as a lung disease, including as due to exposure to asbestos, is not warranted. (CONTINUED ON NEXT PAGE) ORDER Service connection for COPD, claimed as a lung disease, including as due to exposure to asbestos, is denied. ____________________________________________ D. J. DRUCKER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs