Citation Nr: 0941126 Decision Date: 10/28/09 Archive Date: 11/04/09 DOCKET NO. 07-18 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), interstitial lung disease, cor pulmonale, and asbestosis, to include as due to exposure to asbestos. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from December 1952 to December 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In March 2009, the Board remanded this case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2009). FINDING OF FACT A respiratory disorder, to include COPD, interstitial lung disease, cor pulmonale, and asbestosis, is not attributable to service. CONCLUSION OF LAW A respiratory disorder, to include COPD, interstitial lung disease, cor pulmonale, and asbestosis, was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, a VCAA letter was sent in November 2005. Thereafter, additional VCAA notices were sent in November 2006 and May 2009. Cumulatively, these notices fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letter told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In particular, the VCAA notification: (1) informed the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informed the claimant about the information and evidence that VA will seek to provide; and (3) informed the claimant about the information and evidence that the claimant is expected to provide. In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the United States Court of Appeals for Veterans Claims (Court) found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the claimant over the course of this appeal, the claimant clearly has actual knowledge of the evidence the claimant is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claimant's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. Although VA requested that the claimant furnish his complete legal, medical, and any other associated documents from his civil lawsuit against his employer, no information has been forthcoming. The claimant was also afforded a VA examination in February 2006. 38 C.F.R. § 3.159(c)(4). This examination is adequate as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran, and provided rationale. The records satisfy 38 C.F.R. § 3.326. The claimant was also sent a letter regarding the appropriate disability rating or effective date to be assigned in March 2006. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). Competency and Credibility The Veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Thus, while the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, that veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. While the Veteran is competent to report that he has had respiratory difficulties, the June 2006 medical opinion and other medical evidence addressed below is more probative as to the matter of the etiology of current respiratory disabilities since the issue at hand does not involve a simple medical assessment, but rather requires a complex medical assessment with regard to etiology. See Jandreau; see also Woehlaert. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the 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 appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The service treatment records document a variety of medical complaints. However, there were no complaints, findings, treatment, or diagnosis of any respiratory disease or injury. On his separation examination, on the Report of medical History, although the Veteran reported numerous medical problems, he specifically denied having asthma, shortness of breath, pain or pressure in his chest, or a chronic cough. Likewise, the physical examination of the lungs and chest was normal. The Veteran was separated from service in December 1956. The silence and the normal findings constitute negative evidence. The absence of evidence constitutes negative evidence tending to disprove the claim that the Veteran suffered from the claimed disabilities during service which purportedly resulted in chronic disabilities or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Nearly 50 years later, post-service, the Veteran filed a claim for VA compensation benefits. A Veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim. Shaw v. Principi, 3 Vet. App. 365 (1992). VA and private medical records dated from 2003 onward reflect that the Veteran has been diagnosed as having COPD, interstitial lung disease, cor pulmonale, and asbestosis. See Medical records of S.D. J., M.D., dated in 2005; medical records of J.V.M., M.D. dated in 2005; and VA outpatient records dated 2003-2005. The passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran claims that his current respiratory diagnoses are etiologically related to in-service asbestos exposure as a petroleum fuel specialist in airplane hangers and in his barracks. As to claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos 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. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). 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. VAOPGCPREC 4-00. 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). Thus, 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). As noted, 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 this case, the RO apparently accepted that the Veteran had probable asbestos exposure. However, as noted above, VA must further determine 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. As such, the Veteran was afforded a VA examination in February 2006. The claims file was reviewed and the examiner extensively discussed all probable asbestos exposure. In pertinent part, the examiner considered in-service and post- service asbestos exposure. It was noted that the Veteran had worked in the coal mines and was exposed to asbestos in his occupation for 27 years. The Veteran related that he received compensation for asbestos related claims from various chemical companies (as previously noted, although records were requested from the Veteran, he has not furnished them). The Veteran indicated, however, that he felt that he was not exposed to asbestos on his coal mine related work. The examiner concluded, however, that the Veteran's COPD and interstitial lung disease were more likely caused by his post-service employment and less likely than not caused by any in-service asbestos exposure. The Board attaches significant probative value to this opinion, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). As such, the second two inquires required of VA do not support the Veteran's claim. Further, subsequent medical evidence dated in 2006 from Walker Baptist Medical Center, reflects the continued diagnoses of lung disease, but also indicates that the lung disease was etiologically related to cigarette smoking. The Board notes that no current lung disorder related to in- service cigarette smoking may be granted service connection. In VAOPGCPREC 19- 97, the VA General Counsel (GC) addressed the question of under what circumstances service connection may be established for tobacco-related disability or death on the basis that such disability or death is secondary to nicotine dependence which arose from a veteran's tobacco use during service. In that opinion, the GC stated that a determination of whether the veteran is dependent on nicotine is a medical issue. Specifically, the GC held that a determination as to whether service connection for disability or death attributable to tobacco use subsequent to military service should be established on the basis that such tobacco use resulted from nicotine dependence arising in service, and therefore is secondarily service-connected pursuant to 38 C.F.R. § 3.310(a), depends upon affirmative answers to the following three questions: (1) whether nicotine dependence may be considered a disease for purposes of the laws governing veterans' benefits, (2) whether the veteran acquired a dependence on nicotine in service, and (3) whether that dependence may be considered the proximate cause of disability or death resulting from the use of tobacco products by a veteran. If each of these three questions is answered in the affirmative, service connection should be established on a secondary basis. VAOPGCPREC 19-97. In this opinion, the GC noted that secondary service connection may be established, under the terms of 38 C.F.R. § 3.310(a), only if a veteran's nicotine dependence, which arose in service, and resulting tobacco use, may be considered the proximate cause of the disability or death which is the basis of the claim. In a May 5, 1997 memorandum from the VA Under Secretary for Health to the GC, the Under Secretary for Health affirmed that nicotine dependence may be considered a disease. Moreover, paragraph 5 of VA USB letter 20-97-14, from the Under Secretary for Benefits, addressed to all VBA offices and centers, directs that, in light of the Under Secretary for Health's opinion, the answer in all nicotine dependence cases on this issue is that nicotine dependence is a disease. Consistent with the Under Secretary of Health's opinion, the Board finds that nicotine dependence is a disease for purposes of VA benefits. As such, a finding of nicotine dependence must be supported by competent medical evidence. VAOPGCPREC 19-97. On July 22, 1998, the President signed into law a new provision, codified at 38 U.S.C.A. § 1103, essentially barring service connection for disability or death on the basis that a disease or injury is attributable to the use of tobacco products during service. 38 C.F.R. § 3.300. This provision, however, only applies to claims filed after June 9, 1998, and therefore, given the date of this claim, such ban does apply to the Veteran's claims. Thus, to the extent that there is an implied assertion that in-service cigarette smoking resulted in current lung disabilities, service connection may not be granted on that basis. In sum, the most competent and probative evidence establishes that the current lung disabilities did not have their onset during service and are unrelated thereto. Rather, current lung disabilities are the result of post-service asbestos exposure as well as cigarette smoking. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Neither the Board nor the Veteran is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. See Cohen. Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. ORDER Service connection for a respiratory disorder, to include chronic obstructive pulmonary disease, interstitial lung disease, cor pulmonale, and asbestosis, is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs