Citation Nr: 0740611 Decision Date: 12/27/07 Archive Date: 01/02/08 DOCKET NO. 03-35 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from June 1955 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claims for COPD and TDIU. The veteran participated in a Board video conference hearing with the undersigned Veterans Law Judge in October 2005. A transcript of that proceeding has been associated with the veteran's claims folder. During the course of his hearing, the veteran informed the undersigned that he did not waive agency of original jurisdiction (AOJ) consideration of his newly submitted evidence. As a result, the Board remanded this claim in February 2006 for AOJ consideration, a proper notice letter of VA's duties to notify and assist, missing treatment records and a new VA examination. These remand directives having been accomplished, the claim has been returned to the Board for adjudication. FINDINGS OF FACT 1. The veteran does not have COPD that is related to military service, to include as due to asbestos exposure in service. 2. The veteran has no service-connected disabilities. CONCLUSIONS OF LAW 1. The veteran's chronic obstructive pulmonary disease was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.300, 3.303, 3.304 (2007). 2. Entitlement to a total disability rating based on individual unemployability is denied as a matter of law. 38 C.F.R. §§ 3.340, 4.16(a) and (b) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. A letter dated in March 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. Although this letter was not sent prior to initial adjudication of the veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice in March 2006, he was provided 13 months to respond with additional argument and evidence and the claims were readjudicated and an additional supplemental statement of the case (SSOC) was provided to the veteran in July 2007. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The March 2006 letter told him to provide any relevant evidence in his possession. See Pelegrini II, at 120-121. The veteran was also provided with notice compliant with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) in a letter dated in June 2006. The veteran was also afforded a subsequent adjudication in July 2007. The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and VA medical records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The veteran was afforded VA medical examinations and/or opinions in November 2002, January 2003, August 2004, July 2006 and April 2007 to determine whether his COPD can be directly attributed to exposure to asbestos in service. Further examination or opinion is not needed on the COPD claim because, at a minimum, there is no persuasive and competent evidence that the claimed conditions may be associated with the veteran's military service. This is discussed in more detail below. Additionally, the veteran does not require an examination for his TDIU claim, as he has no service-connected disabilities. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Merits of the Claims I. Service Connection for COPD The veteran alleges that his currently diagnosed COPD is the result of exposure to asbestos during his time in the United States Navy. The veteran has specifically alleged that he was aboard the U.S.S. MULIPHEN when it was in dry dock for repairs. He alleges that these repairs involved other sailors working with asbestos, which in turn has caused his current lung problems. For the reasons that follow, the Board concludes that service connection is not warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002 & Supp. 2007). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2007). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2007). 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). 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. VA has, however, 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. See 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). See 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. See VAOGCPPREC 04-00. "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." See McGinty v. Brown, 4 Vet. App. 428, 429 (1993). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21- 1, Part VI, 7.21(c). In the present case, the record contains conflicting medical evidence. The veteran's service records show that he served in the Navy, but are negative for findings of a lung disorder. The veteran's VA and private treatment records show the extent of his lung disabilities. The veteran has been diagnosed with COPD. Thus, the Board concedes that the veteran suffers from a current lung disability. See Hickson, supra. In support of his claim, the veteran relies initially on a letter issued in September 2005 by a claim representative at the Minnesota Department of Veterans Affairs - Claims Division, accompanied by Deck Logs. These Deck Logs reflect dates the US MULIPHEN underwent engineering plant work. In November 2005, the veteran submitted a statement from Donald L. Deye, M.D. Dr. Deye stated that the veteran had recurrent lower respiratory infections and it was felt as likely as not, that his COPD was caused by or was aggravated by the veteran's exposure to asbestos in service. The physician did not provide any reasons and bases to support this contention. In fact, it is clear that this opinion was based purely on history provided by the veteran. In Black v. Brown, 5 Vet. App. 177, 180 (1993), the Court stated that the Board may discount medical opinions that amount to general conclusions based on history furnished by the veteran and that are unsupported by the clinical evidence. As discussed in more detail below, the medical evidence simply does not support a finding that the veteran suffers from asbestosis or that his COPD is the result of asbestos exposure. The only remaining evidence of record in support of the veteran's claim is his own personal statements claiming that his current COPD is related to service. The Board acknowledges that the veteran is competent to give evidence about what he experienced; for example, he is competent to discuss what he saw in service. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Evidence against the veteran's claim consists of multiple VA examination reports, x-ray reports and pulmonary function tests (PFT). In December 1994, the veteran was given a chest x-ray for his emphysema. The x-ray report found the heart and lungs to be normal and it was noted that there were no changes since the last x-ray report in May 1991. See X-ray report, Professional Medical Associates, December 17, 1994. In February 2002, chest x-rays were performed at Cambridge Medical Center. The report noted that the heart, mediastinum and hila were all within normal limits. Examination of the lung fields showed no air space infiltrates, no atelectasis, no effusions, no calcified pleural and no diaphragmatic plaques were seen. It was also noted that there was no change since 1996. The report's conclusion was no acute disease and no evidence of pleural calcification seen. In November 2002, the veteran was afforded a general VA examination. It was noted that the claims folder was reviewed and the veteran reported that he was a heavy smoker for approximately 20 years prior to quitting in 1982. PFTs performed in conjunction with the examination showed evidence of increased forced vital capacity (FVC) of 140 percent of predicted and decreased forced expiratory volume in one second (FEV1) or FVC of 61 percent of predicted, suggesting both significant air trapping and obstructive disease, which was suggestive of asthma versus chronic bronchitis. As noted above, persons with asbestos exposure have increased incidence of bronchial issues, which were not demonstrated here. See M21-1, Part VI, para 7.21(a). The veteran participated in an August 2004 VA examination. The examiner noted that the veteran's claims folder was reviewed in conjunction with the examination. The veteran again stated that he was a heavy smoker (approximately two packs of cigarettes per day) prior to stopping in 1982. Upon physical examination of the chest, the veteran had an increased abdominoperineal diameter. There was some scattered wheezing throughout the posterior lung fields, right and left, with no rales. There was no edema, peripheral pulses were 2+ and symmetrical from carotid, femoral and dorsalis pedis. X-rays performed on August 9, 2004 showed lungs were hyperinflated with scattered parenchymal scars, consistent with COPD. There was a mild bilateral pleural thickening, but no evidence of calcific plaques to indicate definite asbestos exposure. X-rays obtained on April 22, 2004 demonstrated periapical (PA) and lateral views of the chest. The cardiac and mediastinal silhouettes were within normal limits. The lungs demonstrated mild patchy densities in the retrocardial region, which may represent an early infection infiltrate. The remainder of the lungs were clear and the bony structures appeared intact. The examiner concluded that there were no pleural plaques or interstitial disease on x-ray. The veteran had a long history of cigarette smoking, approximately two packs per day for over 20 years. The veteran had evidence of COPD on his pulmonary function studies with obstructive disease. The veteran had nothing in his records to indicate significant asbestos exposure. In the examiner's opinion, it was more likely than not that the veteran's cigarette and tobacco abuse contributed to his COPD. See VA examination report, August 12, 2004. In February 2006, the Board remanded this claim for an additional VA examination. In July 2006, the veteran participated in another VA respiratory examination. It was noted that the veteran had a chest x-ray in June 2006, which demonstrated heart size as normal; moderate to severe hyperinflation was unchanged. Thoracic spondylosis was again noted, with stable hyperinflation and no acute infiltrates. Upon examination, the veteran's chest had no crackles right and left with somewhat distant breath sounds with good excursion. PFTs revealed an FEV1 of 66 percent predicted with a FEV1/FVC of 51 percent predicted with a CO diffusion of 51 percent with good response to Albuterol nebulizer. The examiner diagnosed the veteran with obstructive airway disease. X-ray evidence did not reveal pleural plaque disease that was documented by a radiologist. The examiner then stated that her knowledge was limited and she was dependent upon the radiologist's interpretation of the x- rays. She was unable to determine whether the veteran had pleural plaque disease or asbestos documented in his chest x- ray. Therefore, she concluded that a pulmonologist needed to perform further investigation. In April 2007, an additional VA opinion was provided by a pulmonary expert. In reviewing the claims folder, the examiner noted that Dr. Deye's positive nexus statement was reviewed. The examiner called the Cambridge Medical Center and learned that Dr. Deye was an internal medicine physician and not a pulmonary specialist. It was also noted that pertinent to the case was the veteran's clear history of COPD and asthma. The PFT of December 26, 2006 showed definite obstruction per the reading pulmonologist, with a combination of decreased FEV1/FVC and a decreased diffusion capacity of carbon monoxide (DLCO). (In contrast, with asbestosis, the PFTs show the absence of airway obstruction and the FEV1/FVC is normal). There was some reversibility with the use of an inhaler during the test (typical of reactive airway disease/asthma), in addition to the clear diagnosis of obstructive lung disease. (Asbestosis induces interstitial lung disease, an entirely different disorder). The chest film of August 2004 was reviewed, demonstrating hyperinflated lungs consistent with COPD, mild bilateral pleural thickening, but no evidence for calcific plaques to indicate definite asbestos exposure. The examiner noted that a medical resource noted that "diffuse pleural thickening is a nonspecific response to many injuries including medications, occupational exposure, inflammation, trauma, neoplasia, embolism and radiation." See VA opinion report, April 16, 2007. The examiner noted that computed tomography (CT) scanning was more sensitive than x-rays in detecting abnormalities associated with asbestos related to lung disease. The veteran underwent a spiral CT on December 26, 2006 specifically to assess for history of asbestos exposure. This showed no pleural plaques and no pleural effusion. (It was noted that pleural plaques are known to be virtually pathognomonic of previous asbestos exposure, but this veteran had none.) There was a 4 millimeter left upper lobe nodule that was of indeterminate etiology (it was noted that these can be due to many reasons and cancer must be ruled out.) A few paramediastinal blebs were seen, with no relationship to asbestosis. In reviewing the claims folder, the examiner noted that the veteran worked for Great Northern Railroad as a pipe fitter and also worked for a natural gas company in this capacity. The examiner opined that pipefitting is an occupation well known to expose workers to asbestos. The examiner also noted that the veteran was presumed to be exposed to asbestos in service. The examiner reviewed additional supporting medical resources and noted that there are three key findings used to support a diagnosis of asbestosis: a history of asbestos exposure, definite evidence of interstitial fibrosis, and no other cause of interstitial lung disease. The examiner stated that the veteran completely lacked evidence of an interstitial lung process. The examiner concluded that there was no evidence to support a diagnosis of an asbestos related lung condition. The supporting evidence that rules out this diagnosis included the spiral CT scan, the PFTs and the chest films. The pulmonary condition that he does have is COPD/asthma and that has no relationship to asbestos exposure. The etiology of the veteran's lung disease was tobacco-induced COPD. He also had evidence of reactive airway disease (asthma). The latter condition involved the bronchioles and both of those conditions have no relationship to asbestos exposure. There was no evidence of any asbestos related condition. Overall, the veteran's COPD was found not to be due to or aggravated by military service. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this case, the Board finds the VA opinions to be the most persuasive. At each examination, the veteran's claims folder was thoroughly reviewed in conjunction with the examination. The April 2007 VA pulmonary opinion in particular, provided a well-reasoned conclusion that the veteran's COPD was not related to service or to asbestos exposure. Indeed, it was also noted that the physician who made the positive nexus statement is not a pulmonary expert. The Board has considered service connection of the veteran's respiratory and lung conditions on other bases; however, the April 2007 VA examiner's opinion indicates that the veteran's lung disorders are the result of smoking. Service connection for the effects of tobacco use is not available for claims filed after June 9, 1998, which is the case here. See 38 C.F.R. § 3.300 (2007). Thus, there is no basis upon which to conclude that COPD was incurred or aggravated during military service or that the disorder may otherwise be related thereto. Regardless of whether the veteran was exposed to asbestos during service, his present lung disabilities have not been persuasively attributed to asbestos exposure. The Board finds inquiry into whether the veteran had exposure to asbestos in service, and whether that exposure contributed to his current condition to be moot. As such, the Board finds that the preponderance of the evidence is against the veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2007); see also Gilbert, supra. II. TDIU Total disability ratings are available to veterans with service-connected disorders who are rendered unable to work as a result of their service-connected disorders and yet do not receive a total percent rating under the schedular criteria. See 38 C.F.R. § 4.16(a) and (b) (2007). As this suggests, the veteran must have a service-connected disorder before he can receive a rating, regardless of the level. The veteran has no previously service-connected disabilities, and the current claim has been denied above. Without satisfying this predicate requirement for a TDIU, the instant claim for TDIU must be denied as a matter of law. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for chronic obstructive pulmonary disease, to include as due to asbestos exposure, is denied. Entitlement to a total disability rating based on individual unemployability is denied as a matter of law. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs