Citation Nr: 0810335 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-22 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a lung condition, to include chronic obstructive pulmonary disease (COPD), claimed as secondary to asbestos exposure. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Morgan, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in Boise, Idaho (the RO). Procedural history The veteran served on active duty from July 1957 until June 1961. In March 2004, the RO received the veteran's claim of entitlement to service connection for a lung condition and a low back condition. The December 2004 ratting decision denied the veteran's claims. The veteran disagreed with the December 2004 rating decision and initiated this appeal. The appeal was perfected by the timely submission of the veteran's substantive appeal (VA Form 9) in June 2005. The veteran was scheduled for a videoconference hearing in December 2006. The veteran did not appear. His hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2007). Issues not on appeal Also in the December 2004 rating decision, the RO denied the veteran's claim entitlement to service connection for hair loss. The veteran did not file a timely notice of disagreement (NOD) as to that issue. Moreover, in January 2006 the veteran submitted correspondence which indicated his intent to abandon this claim. That matter is not in appellate status. In the December 2004 rating decision, entitlement to service connection for residuals of a pilondial cyst was granted and a noncompensable disability rating was assigned; entitlement to service connection for hearing loss was granted and a noncompensable disability rating was assigned; and entitlement to service connection for tinnitus was granted and a 10 percent disability rating was assigned. The veteran has not, to the Board's knowledge, expressed dissatisfaction with any aspect of those decisions. FINDINGS OF FACT 1. The veteran has been diagnosed with COPD which has been related by medical evidence to tobacco use. The weight of the competent and probative medical evidence of record is against a finding that the veteran suffers from any other lung disease. 2. The weight of the competent and probative evidence of record is against a finding that the veteran's lumbar spine disability is secondary to his military service of any incident thereof. CONCLUSIONS OF LAW 1. Residuals of asbestos exposure were not incurred in or aggravated by military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 2. A lumbar spine disability was not incurred in or aggravated by military service. 38 U.S.C.A. § 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks entitlement to service connection for a back disability and a lung disability. 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 Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the provisions of the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 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 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (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. Duty to notify The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claim in a letter dated March 16, 2004. In this letter, the veteran was advised of the provisions relating to the VCAA. Specifically, he was advised that VA would obtain all evidence kept by the VA and any other Federal agency. He was also informed that VA would, on his behalf, make reasonable efforts to obtain relevant private medical records not held by a Federal agency as long as he completed a release form for such. The VCAA letter specifically informed the veteran that for records he wished for VA to obtain on his behalf he must provide an adequate description of the records as well as authorization for records not held by the Federal government. Additionally, the letters specifically informed the veteran of the criteria of a successful claim of entitlement to service connection and particularly how to establish asbestos exposure during service. The March 2004 letter expressly notified the veteran that he could submit or describe additional evidence in support of his claim and specifically informed the veteran "If there is any other evidence or information that you think will support your claim, please let us know." See the March 2004 letter, page 3. Further the letter advised the veteran of the procedure for submitting evidence on his own behalf. This complies with the requirements of 38 C.F.R. § 3.159 (b) in that the RO informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. In short, the record indicates that the veteran received appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. The veteran in this case seeks to reopen a previously denied claim of entitlement to service connection. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, element (1), veteran status, is not at issue. The veteran's claims have been denied based on a lack evidence as to elements (2) and (3), current existence of a disability and relationship of such disability to the veteran's service. As explained above, he has received proper VCAA notice as to his obligations, and those of VA, with respect to those two crucial elements. Moreover, regarding elements (4) and (5), degree of disability and effective date, these are rendered moot via the RO's denial of service connection. In other words, any lack advisement as to those two elements is meaningless, because disability ratings and effective dates were not assigned. In any event, the veteran received specific notice as to these elements in a March 2006 letter. Thereafter, the claim was readjudicated in July 2006. The Board additionally observes that the veteran appears to be fully conversant with what is required of him and of VA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained. The veteran's service medical records, VA treatment records, private medical opinions and employer medical testing records have been obtained. The veteran was afforded VA Compensation and Pension (C&P) examinations in November 2004 and again in June 2006. 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 this claim has been consistent with the provisions of the VCAA. The veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2007). Accordingly, the Board will proceed to a decision on the merits. 1. Service connection for a lung condition, to include COPD, claimed as secondary to asbestos exposure. Pertinent laws and regulations Service connection - in general Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (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). 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. 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). 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 also VA O.G.C. Prec. Op. No. 04-00. 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos- Related Diseases (May 11, 1988). Analysis The veteran is seeking entitlement to service connection for a lung disease, claimed as secondary to in-service asbestos exposure. For the purposes of this decision, there are at issue two lung conditions: COPD and asbestosis. The Board will discuss each condition in turn. COPD In the interest of clarity a Hickson analysis will be employed. Concerning element (1), current disability, it is undisputed that the veteran has been diagnosed with COPD. See, e.g., a May 2006 VA examination report. Regarding element (2), in-service incurrence of disease or injury, the Board will address each in turn. In-service incurrence of disease is not shown. The veteran's service medical records are pertinently negative for any diagnosed pulmonary condition. At the veteran's June 1961 separation examination no pulmonary disability or complaint was noted. However, there was in-service incurrence of injury. It is undisputed that the veteran was exposed to asbestos as part of his employment duties. Element (2), incurrence of injury, has been satisfied to that extent. Turning to element (3), medical nexus, the Board notes that there are of record three competent and probative medical opinions discussing the etiology of the veteran's COPD: that of a November 2004 VA examiner, an April 2005 opinion of Dr. K., and a November 2006 VA examiner. Each of these opinions is to the effect that the veteran's obstructive lunch disease is a consequence of his smoking, not of asbestos exposure. There is no competent medical evidence to the contrary. The only evidence which seeks to relate the veteran's COPD to asbestos exposure emanates from the veteran himself. However, it is well established that lay persons without medical training, such as the veteran, are not competent to attribute symptoms to a particular cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The competent medical evidence thus demonstrates that the veteran's COPD is a consequence of tobacco use. The veteran has not specifically contended that In-service tobacco use is responsible for the COPD. In any event, the law mandates that when, as here, a claim is received by VA after June 9, 1998, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service. See 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300(a) (2007). Accordingly, Hickson element (3), medical nexus, is not satisfied and entitlement to service connection of COPD is not established. Asbestosis The Board must further consider whether or not the veteran suffers from a lung disease other than COPD, specifically asbestosis, for which service connection may be granted. There is conflicting evidence as to whether or not such disability exists. In support of the veteran's claim is an August 1997 x-ray report of Dr. L. which carries a diagnosis of fibrosis "indicating" asbestosis. Additionally, there is the April 2005 report of Dr.K. which also indicates a finding of mild, nearly asymptomatic, abestosis. Weighing against the veteran's claim are the November 2004 VA medical examination and x-ray report, the May 2006 VA x-ray report, the May 2006 high resolution CT scan report and the June 2006 VA medical opinion. The three diagnostic reports each included findings of no fibrosis or asbestosis. The November 2004 VA x-ray report indicated that the veteran had normal lungs. The May 2006 x-ray report determined that there was evidence of "COPD with no evidence of asbestos related disease." The May 2006 higher resolution CT scan contained the finding of "no evidence of pulmonary fibrosis". The November 2004 VA medical examiner noted and considered the veteran's asbestos exposure history but determined that there was no basis to render a diagnosis for residuals of asbestos exposure. Finally, the June 2006 VA medical examiner determined that there was no clinical basis for a finding of asbestosis. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Indeed, in Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. 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, 470-1 (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). In this case, the Board places greater weight of probative value on the volume of objective testing and examination reports contained in the November 2004, May 2006 and June 2006 VA records than it does on the August 1997 x-ray report and Dr. K.'s April 2005 report. The August 1997 x-ray report documents a one-time finding of asbestosis obtained over a decade ago. This result has not been repeated since that time, despite a number of radiology studies, all of which have been pertinently negative. Significantly, these studies included a higher resolution CT scan. The overwhelming evidence based on diagnostic studies is that asbestosis does not exist. Based upon the totality of the medical record, which contains repeated x-ray examinations and examinations using more sophisticated high resolution CT technology, the August 1997 report appears to be a clinical outlier. Similarly, the overwhelming weight of medical opinion evidence is against the claim. Although Dr. K. concluded that asbestosis was present, that conclusion was based upon the August 1997 x-ray report, which as discussed immediately above is highly suspect. In contrast, the Board places greater weight of probative value on the remaining medical opinions, which do not identify any asbestos-related disease. These opinions are informed by objective testing, including the May 2006 high resolution CT scan, which evidently provided a more derailed view of the veteran's lungs than the previous x-ray examinations. In particular, the Board is persuaded by the June 2006 VA medical opinion. This opinion, unlike the opinion of Dr. K., was informed by the contemporaneous objective testing to include the CT scan discussed above, as well as a review of the veteran's complete record and an examination of the veteran. Accordingly, the veteran accords this opinion great weight of probative value. Additionally, the opinion is supported by the conclusion of the November 2004 VA examiner, who also found no evidence of asbestosis. The Board additionally observes that that there is no competent medical evidence of any other lung disease. For these reasons, the Board has found that the weight of the competent and probative evidence of record is against a finding that the veteran suffers from asbestosis or any other lung disease other than COPD. In the absence of diagnosed asbestosis, service connection may not be granted for that condition. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. Conclusion For the reasons set out above, the Board has found that the preponderance of the evidence of record is against a finding that the veteran suffers from a lung disease related to his in-service asbestos exposure. The benefits sought on appeal are accordingly denied. 2. Service connection for a low back disorder. Pertinent law and regulations The law and regulations generally pertaining to service connection have been set out above and will not be repeated. For certain chronic disorders, to include arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Analysis The veteran is also seeking entitlement to service connection of a low back condition. In the interest of clarity a Hickson analysis will again be employed. The veteran has been diagnosed with degenerative joint disease of the lumbar spine. Hickson element (1) is satisfied. With respect to element (2), in-service incurrence of disease and injury, the Board will address each in turn. The veteran's service medical records are pertinently negative for any diagnosis of degenerative joint disease, lumbar spine arthritis or any other condition of the veteran's back. Additionally, there is no medical evidence of degenerative joint disease, that is to say arthritis, in the one year presumptive period after service. See 38 C.F.R. § 3.309(a) (2007). In fact, there is no indication of the veteran's diagnosis with the condition until the May 2005 letter of Dr. L., many decades after the veteran's separation from service in June 1961. In-service incurrence of disease is therefore not shown. Turning in-service incurrence of injury, the veteran asserts that he suffered an injury to his low back during an in- service fall from the ladder. An October 1959 service medical record refers to an in-service fall from a ladder and noted an injury to the veteran's sacrum, resulting in a pilondial cyst (which has been service connected). Accordingly, in-service incurrence of injury is shown, and on that basis Hickson element (2) is satisfied. Moving to the final element, medical nexus, there are of record two competent and probative medical opinions which discuss the relationship between the veteran's lumbar spine disability and his in-service fall: the May 2005 letter of Dr. L. and the June 2006 VA medical opinion. In May 2005, Dr. L. opined that the veteran's current condition "could" be related to the reported in-service fall. In June 2006 the VA examiner determined, based upon his review of the records and x-ray examinations, that the veteran's lumbar spine disability was more likely than not a consequence of aging (the veteran was 67 years of age at the time) and was "not caused by or incurred in service" to include the in-service injury which resulted in the pilondial cyst. As discussed above, in adjudicating a claim the Board is charged with the duty to assess the weight given to evidence. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens, supra; see also Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Here, the Board affords the June 2006 VA medical examination opinion greater weight than the report of Dr. L. The May 2005 opinion of Dr. L. is inconclusive, stating only that a relationship "could" exist. Such an opinion is insufficient to support the veteran's claim. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) [medical opinions which are speculative, general or inconclusive in nature cannot support a claim.] Additionally the opinion does not include reasons and bases for the conclusions reached. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. In contrast, the June 2006 medical opinion contains a definite conclusion supported by a review of the veteran's records and contemporaneous objective testing. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."] The Board accords this opinion greater weight of probative value. To the extent that the veteran asserts that his lumbar spine condition is related to his in-service fall, as noted above this is not a competent source of medical evidence. See Espiritu, supra. Therefore, the Board finds that the weight of the competent and probative medical evidence of record is against a finding that the veteran's lumbar spine condition is related to any event in service. Hickson element (3), medical nexus, is not met and the benefits sought on appeal are therefore denied. ORDER Service connection for a lung condition, to include COPD, claimed as secondary to asbestos exposure, is denied. Service connection for a low back disorder is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs