Citation Nr: 0932330 Decision Date: 08/27/09 Archive Date: 09/04/09 DOCKET NO. 05-32 336A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for pulmonary emphysema, to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.A. Kennerly, Counsel INTRODUCTION The appellant served on active duty from December 1967 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the appellant's claims of entitlement to service connection for posttraumatic stress disorder (PTSD) and pulmonary emphysema, to include as secondary to asbestos exposure. The appellant submitted a notice of disagreement in April 2005 and timely perfected his appeal in October 2005. During the pendency of the appeal, jurisdiction of the appellant's claims was transferred to the Cleveland, Ohio, RO. The appellant participated in a Decision Review Officer hearing in October 2005. A transcript of that proceeding has been associated with the appellant's claims file. Travel Board Hearing Request The Board notes that the appellant requested a video hearing before the Board on his March 2007 VA Form 9 [Substantive Appeal]. Pursuant to 38 C.F.R. § 20.700 (2008), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. See also 38 U.S.C.A. § 7107 (West 2002) (pertaining specifically to hearings before the Board). On June 29, 2007, the appellant was issued a letter from VA notifying him that his Travel Board hearing was scheduled for July 20, 2007 at the Cleveland, Ohio RO. An appellant may request that a hearing be rescheduled within 60 days of notification of the hearing, or not later than two weeks prior to the scheduled hearing date, whichever is earlier. See 38 C.F.R. § 20.702(c) (2008). The appellant failed to report for this hearing, without a request to reschedule. On July 31, 2007, the appellant's representative requested that the hearing be rescheduled, alleging that the appellant did not receive notice of the hearing until after it was scheduled. The appellant also requested, at that time, that he be scheduled for an in-person Board hearing, rather than a video hearing. Therefore, in August 2007, the Board remanded the claims to reschedule the appellant's Board hearing. On May 6, 2008, VA notified the appellant that his Travel Board hearing was scheduled for June 9, 2008. On May 19, 2008, VA issued the appellant a letter notifying him that the June 9, 2008 Travel Board hearing was cancelled and would be rescheduled for July 2008. On May 28, 2008, VA notified the appellant that his Travel Board hearing had been rescheduled for July 16, 2008 at the Cleveland, Ohio, RO. The Board notes that after a hearing date has become fixed [as here], a second extension of time for appearance at a hearing will be granted only for good cause shown. Examples of good cause include, but are not limited to, illness of the appellant, difficulty in obtaining necessary records, and the unavailability of a necessary witness. See 38 C.F.R. § 20.702(c)(2) (2008). Again, the appellant failed to report to his hearing, If an appellant fails to appear for a second scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing has been withdrawn. No further request for a hearing will be granted in the same appeal unless such failure to appear was with good cause and the cause for the failure to appear arose under such circumstances that a timely request for postponement could not have been submitted prior to the scheduled hearing date. A motion for a new hearing date following a failure to appear must be in writing; must be submitted not more than 15 days following the original hearing date; and must set forth the reason for the failure to appear at the originally scheduled hearing and the reason why a timely request for postponement could not have been submitted. See 38 C.F.R. § 20.702(d) (2008). In the present case, the appellant's request to reschedule his hearing, yet again, is denied for the following reasons. First, the appellant did not submit any requests for postponement nor did he submit his reasons for failing to report within 15 days of his July 16, 2008 Board hearing. In fact, the appellant's request to reschedule his missed July 2008 hearing was received by VA in January 2009, along with a memo from his representative. The appellant attached a statement dated July 10, 2008, alleging he had submitted that statement previously. There is no indication in the file that such a statement was received between July 10 and July 16, 2008, and the appellant merely attaching a statement dated such does not indicate the statement was actually mailed or received in a timely fashion. Furthermore, even if the appellant's statement was received before the scheduled hearing on July 16, 2008, he did not provide good cause for his request to reschedule. He stated that as an employee for the VA Medical Center (VAMC) in Cincinnati, Ohio, he required additional time to request leave - at least six weeks notice. However, the letter notifying him of the hearing was sent six weeks before the scheduled hearing, and the appellant then waited five weeks to say he needed to reschedule. Clearly, he could have done so long before that date. The appellant apparently knew well in advance that he was unable to attend both Board hearings scheduled on his behalf, and yet he did not inform the RO of his intentions not to attend in a timely fashion. As a result, other veterans were deprived of the opportunity to present testimony before the Board during those times. Accordingly, the appellant's request for a third Board hearing is denied. Stegall Concerns In December 2008, the Board denied the appellant's claim of entitlement to service connection for PTSD and remanded his claim of entitlement to service connection for pulmonary emphysema, to include as secondary to asbestos exposure, for the Appeals Management Center to schedule the appellant for a VA pulmonary examination to determine the nature and etiology of his bullous emphysema (also referred to as chronic obstructive pulmonary disease (COPD)) and to render a medical nexus opinion. The claim was then to be readjudicated. Pursuant to the Board's remand instructions, a VA pulmonary examination was performed in February 2009. The claim was readjudicated via the June 2009 Supplemental Statement of the Case. Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [wherein the United States Court of Appeals for Veterans Claims (Court) stated that when remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. FINDING OF FACT The preponderance of the evidence is against a finding that a relationship exists between the appellant's bullous emphysema/COPD and the appellant's military service or any incident thereof, to include asbestos exposure. CONCLUSION OF LAW Bullous emphysema/COPD was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303, 3.304 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file. 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 appellant 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 claim. The appellant 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 appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. 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). I. The Merits of the Claim The appellant contends that he currently suffers from pulmonary emphysema/COPD that is the result of a disease or injury in service, to include as secondary to asbestos exposure. Specifically, the appellant alleges that due to his military occupational specialty (MOS) of welder, he was exposed to fumes, smoke and chemicals and was required to wear gloves and aprons made of asbestos for approximately seven to eight hours per day. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2008). In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2008). 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). 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 DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 MR provides the following non- exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, 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 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR 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 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). 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 former 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 VA O.G.C. Prec. Op. No. 04-00. With respect to Hickson element (1), the appellant has been diagnosed with bullous emphysema/COPD. See, e.g., VA pulmonary examination report, February 10, 2009. Hickson element (1) has therefore been demonstrated. See Hickson, supra. The Board notes, however, that the appellant has not been diagnosed with asbestosis. "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). M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end- respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (e). With respect to Hickson element (2), the appellant's representative has argued that the appellant was exposed to asbestos during service. As noted in the law and regulations section above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. Upon entry into service, the appellant's lungs and chest were noted as normal. See Standard Form (SF) 88, entrance examination report, July 14, 1967. Additionally, an October 1967 chest x-ray was normal. The appellant's service treatment and personnel records indicate that his primary MOS was a welder. In January 1969, the appellant was seen with complaints of a non-productive cough. See service treatment records; January 17, 1969 and January 20, 1969. At the time of his discharge from service, the appellant's lungs and chest were considered to be normal and the appellant was noted to be in good health. The appellant himself denied suffering from asthma, shortness of breath or pain or pressure in the chest, though he did report experiencing a chronic cough. Interestingly, the appellant also noted that his mother had suffered from tuberculosis before he enlisted in the military, though he stated he had multiple chest x-rays as a young man, all of which were negative. See SF 88 and 93, separation examination reports, April 20, 1977. The appellant's service treatment records do not refer to any asbestos exposure, and emphysema/COPD is not included in the list of disabilities associated with asbestos exposure in M21-1, Part VI, para 7.21(a). In short, the contention that the appellant was exposed to asbestos in service amounts to mere speculation on his part and is not substantiated by any objective evidence in the file. There is no indication that the in-service complaints of a non-productive cough were related to asbestos exposure. The Board accordingly finds that the appellant was not exposed to asbestos in service and element (2) of Hickson has not been satisfied. The first evidence of medical treatment for a pulmonary disability was in 2004, when the appellant began working for VA and was provided with a physical examination. In March 2004, a chest x-ray report noted: anterior bowing of the sternum and increased radiolucency within the lung field due to pulmonary emphysema; some flattening of the domes of the diaphragm; emphysematous bullae present in both apices; no evidence of air space disease; and soft tissues and bony structures were normal. See VAMC treatment record; March 31, 2004. The appellant has since stated that he began to experience shortness of breath with mild exertion at the time of his discharge from service, but was unable to seek medical treatment due to lack of funds. See Appellant's Post Remand Brief, July 7, 2009. In February 2005, the appellant participated in Pulmonary Function Testing (PFT), which revealed mild obstructive defect, borderline response to bronchodilator, normal lung volumes and diffusing capacity that was moderately decreased but normalized when corrected for lung volumes. See VAMC treatment records; PFT report; February 14 and 15, 2005. In August 2005, the appellant was seen for a pulmonary consult. At that time, he complained of dyspnea on exertion, however most of his symptoms were intermittent deep sighs, occasional shortness of breath in bed requiring him to sit up, chronic coughing, and occasional wheezing. The examiner's impression was likely early COPD versus asthma. Based on the appellant's chest x-ray, emphysema was noted, but did not fit in with mild obstruction on PFT. See VAMC treatment records; pulmonary consultation; August 18, 2005. In November 2005, the appellant was seen again at the VAMC pulmonary outpatient clinic. At that time, he reported smoking at least one pack of cigarettes per day. He stated that his dyspnea was slightly better. The examiner's impression was mild COPD. See VAMC pulmonary outpatient clinic; November 18, 2005. The heart of the appellant's claim appears to be his contentions that he has suffered from a respiratory disability nearly continually since service. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. Although the appellant is competent to testify as to his symptoms, supporting medical evidence of emphysema/COPD is required to sustain a service connection claim based upon continuity of symptomatology. See Voerth v. West, 13 Vet. App. 117, 120-121 (1999) [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. It appears that the appellant did not assert exposure to asbestos until his September 2004 claim, over 25 years after his military service. The Board finds the lack of any objective medical evidence of an in-service disease or injury to be more persuasive than the appellant's recent statements, provided many years after the injury supposedly occurred. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the claimant]. The appellant's recent unsupported and self-serving statements concerning an alleged in-service disease or injury are at odds with the remainder of the record and are lacking credibility. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a claimant's testimony simply because he is an interested party; personal interest may, however, affect the credibility of the evidence]. With respect to Hickson element (3), medical nexus, the appellant was afforded a VA pulmonary examination in February 2009. The appellant reported suffering from mild shortness of breath upon mild exertion at the time of his discharge from service; however, he stated that he believed this was part of the aging process. He further stated that he began smoking at age 16 and continues to smoke. The appellant noted that he was not aware of any chemical exposure after he was discharged from service. While he indicated that his responsibilities in service required him to wear asbestos lined gloves and aprons, these materials were always intact. The appellant did not recall going to sick call for any lung problems while in service. The VA examiner diagnosed the appellant with bullous emphysema. The appellant had experienced an acute injury [lung contusion] in September 1976 and April 1977 chest x-rays indicated healed old fractures of the 9th and 10th ribs. The VA examiner concluded that none of the injuries to the chest or lungs in service would cause the chronic lung changes currently found in the appellant. Further, the most likely cause for any current changes in the lung functions or findings on x-ray or a diagnosis of COPD was related to a long history of smoking rather than military service. See VA pulmonary examination report; February 10, 2009. The Board acknowledges that the appellant has raised an argument regarding the sufficiency of the medical qualifications of the February 2009 VA examiner. See Appellant's Post Remand Brief, July 7, 2009. The February 2009 VA examiner was a physician's assistant rather than a medical doctor. However, under 38 C.F.R. § 3.159(a)(1) (2008), "competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." A registered nurse practitioner or physician assistant is one who, by definition, has the necessary specialized medical education and training. See Dorland's Illustrated Medical Dictionary 1326 (31st ed. 2007) (a nurse practitioner is a person who is a registered nurse with advanced education and clinical training in a specialized area of health care); Dorland's at 1464 (a physician assistant is one who has been trained in an accredited program and certified by an appropriate board to perform certain of a physician's duties to include diagnosis and treatment); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Furthermore, the February 2009 VA examination of record was reviewed by a doctor of osteopathic medicine, who substantiated the physical findings and resulting medical opinion of the physician's assistant examiner. See VA pulmonary examination report; February 10, 2009. Accordingly, the Board finds the February 2009 VA examination adequate upon which to base a decision. See Barr, supra. The Board notes that there are no other competent medical nexus opinions of record. To the extent that the appellant or his representative is contending that the currently diagnosed emphysema/COPD is related to the appellant's military service, neither is competent to comment on medical matters such as etiology. See Espiritu v. Derwinski, 2 Vet. App. 491, 494-495 (1992); see also 38 C.F.R. § 3.159(a)(1) (2008) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the appellant in support of his own claim are not competent medical evidence and do not serve to establish a medical nexus. Accordingly, Hickson element (3) and has not been met, and the appellant's claim fails on this basis. In summary, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for pulmonary emphysema/COPD, to include as secondary to asbestos exposure. The benefits sought on appeal are accordingly denied. II. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claim decided herein, 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2008). 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); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the 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. This was codified by 38 C.F.R. § 3.159(b)(1). In 2008 however, this regulation was revised to remove the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 73 Fed. Reg. 23, 353-23, 356 (April 30, 2008). Prior to initial adjudication of the appellant's claim, a letter dated in September 2004 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2008); Quartuccio, at 187. Despite the aforementioned change in regulation, the September 2004 notice letter also informed the appellant that it was ultimately his responsibility to give VA any evidence pertaining to the claim and to provide any relevant evidence in his possession. See Pelegrini II, at 120-21. Additionally, the March 2006 notice letter informed the appellant of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. In fact, the appellant stated that he received all of his medical treatment from VA. See Appellant's statement, November 9, 2004. Additionally, the Board notes that additional efforts were made by the RO to obtain any record of the appellant's alleged asbestos exposure in service. In a letter dated in March 2006, the National Personnel Records Center (NPRC) provided an additional copy of the appellant's service personnel records but was unable to locate any additional records pertaining to asbestos. See Response letter from the NPRC, March 10, 2006. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The record indicates that the appellant underwent a VA pulmonary examination in February 2009 and the results from that examination have been included in the claims file for review. The examination involved a review of the claims file, a thorough examination of the appellant, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim. 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). ORDER Entitlement to service connection for pulmonary emphysema, to include as secondary to asbestos exposure, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs