Citation Nr: 1009335 Decision Date: 03/11/10 Archive Date: 03/17/10 DOCKET NO. 04-39 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include claimed as due to exposure to Agent Orange, asbestos, and tobacco use during service. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from May 1960 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2003 rating decision of the Salt Lake City, Utah, regional office (RO) of the Department of Veterans Affairs (VA). This appeal was previously before the Board in May 2007, when it was remanded for additional development. After the development was completed, the Board remanded the appeal again in September 2009 in order to obtain clarification of a medical opinion. The appeal has now been returned to the Board for further review. The Veteran has submitted additional statements in support of his appeal since the most recent supplemental statement of the case was issued in January 2010. However, to the extent that this contains any additional evidence, the Veteran's representative waived RO review in the February 2010 brief. FINDINGS OF FACT 1. The service treatment records are negative for a diagnosis of COPD, and for symptoms that could be attributed to COPD. 2. COPD was first diagnosed over 20 years after the Veteran's discharge from service, and medical opinion states that it is not due to dust, exhaust fumes, Agent Orange, asbestos, cleaning solvents, or any other factors during active service. CONCLUSION OF LAW Chronic obstructive pulmonary disease, to include claimed as due to exposure to Agent Orange, asbestos, and tobacco use during active service, was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1103, 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.300, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper VCAA notice 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) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2009). Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 38 C.F.R. § 3.159 (2009). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 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. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the Veteran was provided with a letter in July 2003 that contained all of the notification required by 38 C.F.R. § 3.159, as defined Pelegrini. This letter also contained the notification of the first three elements of Dingess, and was provided to the Veteran prior to the initial adjudication of his claims. The Veteran received a second notification letter in November 2007. This letter again provided him with the notification required by 38 C.F.R. § 3.159, as defined Pelegrini. It also included all of the notice required by Dingess, including information pertaining to the assignment of effective dates and disability ratings. Finally, it included additional information pertaining to claims based on exposure to Agent Orange and asbestos. The Board notes that portions of the required notice were not provided to the Veteran until after the initial adjudication of his claim. However, the Board finds that this does not result in any prejudice to his appeal. His claim was readjudicated in an August 2009 supplemental statement of the case after the final portions of the notification were received. This cured any timing problem with the notification, and the Board can proceed with the adjudication of his appeal without fear of prejudice to the Veteran. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. Private medical records and VA treatment records have been obtained. He was afforded an appropriate VA examination in October 2007, and pertinent opinions were obtained at that time and in November 2009. The Veteran declined his right to a hearing in his September 2004 Substantive Appeal. There is no indication that there is any relevant evidence outstanding in this claim, and the Board will proceed with consideration of the Veteran's appeal. Service Connection The Veteran contends that he has developed COPD as a result of 20 years of exposure to dust, dangerous chemicals, and asbestos during service. He notes that he served as a Seabee, where he was often exposed to construction dust and hazardous chemicals. The Veteran further notes that he served in Vietnam, where he was exposed to Agent Orange. Finally, the Veteran states that he was exposed to asbestos on many occasions when doing brake jobs on vehicles. He also states that exhaust fumes may have damaged his lungs. He believes that these factors combined to cause his current COPD. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in- service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). 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"). The Veteran claims in part that it was exposure to Agent Orange that resulted in the development of COPD. A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service; chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft-tissue sarcoma" includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma, leiomyosarcoma, epithelioid leiomyosarcoma (malignant leiomyoblastoma), rhabdomyosarcoma, ectomesenchymoma, angiosarcoma (hemangiosarcoma and lymphangiosarcoma), proliferating (systemic) angioendotheliomatosis, malignant glomus tumor, malignant hemangiopericytoma, synovial sarcoma (malignant synovioma), malignant giant cell tumor of the tendon sheath, malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epithelioid sarcoma, clear cell sarcoma of tendons and aponeuroses, extraskeletal Ewing's sarcoma, congenital and infantile fibrosarcoma, and malignant ganglioneuroma. 38 C.F.R. § 3.309(e). For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). The Veteran has also expressed a belief that his COPD could be related to asbestos exposure. The Board notes that there is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the Secretary of Veterans Affairs (Secretary) promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21- 88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4- 00. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and to assure that development is accomplished to ascertain whether or not there is pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. The manual notes that asbestos particles have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The manual notes that lung cancer associated with asbestos exposure originates in the lung parenchyma rather than the bronchi. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to asbestos since it was used extensively in military ship construction. Many of these people have only recently come to medical attention because the latent period varies from 10 to 45 or more years between first exposure and development of the disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). The manual goes on to say that the clinical diagnosis of asbestosis requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease. It should be noted that the pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that a veteran was exposed to asbestos in service. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). A review of the Veteran's twenty years of service treatment records is negative for a diagnosis of COPD. However, June 1972 records note a complaint of chronic cough, which the examiner believed was probably acute bronchitis. He continued with the cough into July 1972, when it was attributed to acute sinusitis. A February 1973 Report of Medical Examination found that the lungs and chest were abnormal due to an obtuse subcostal angle. An X-ray study revealed several linear densities in the left super diaphragmatic area. This was said to be sub- segmental atelectasis or artifact. There was no evidence of destructive disease. September 1976 records state that the Veteran had been experiencing some type of allergic reaction to the environment. He had experienced blocked sinuses and coughing. His father was noted to have a history of allergies, and other family members had a positive history as well. On examination, the lungs were clear with absolutely no wheezing. The Veteran did not smoke. The diagnosis was an allergic reaction to the environment. The report of the April 1980 retirement examination shows that the lungs and chest were normal, as was a chest X-ray obtained at that time. A list of medical history noted a chronic cough of four to five months in duration but attributed this to sinus congestion. The post service medical records are negative for any diagnosis or complaints of COPD until many years after discharge from service. VA treatment records from 2002 show that the Veteran was seen for many health problems, including obstructive sleep apnea. He was noted to have been exposed to asbestos and Agent Orange. VA treatment records dated June 2003 indicate that the Veteran was seen for several medical problems, to include COPD. This disability was stated to have first been diagnosed in 2001. Pulmonary function testing revealed a moderate obstructive pattern which was not improved with an inhaler. Some readings were indicative of possible emphysema as well. Private treatment records dated June 2003 note that the Veteran has a history of COPD. The assessment was an acute exacerbation of COPD. The Veteran was afforded a VA examination for respiratory diseases in October 2007. The examiner reviewed the claims folder, noted the clinical findings that had been identified by the Board, and interviewed the Veteran to obtain additional history. He was noted to have a six to eight year history of smoking up to six packs of cigarettes per day, which the examiner stated was excessive for a short period of time. The Veteran was further said to have quit in 1966 or 1967, which was approximately 30 years before his diagnosis of COPD. After the examination, the diagnosis was severe COPD with secondary pulmonary hypertension and severe obstructive sleep apnea. The examiner opined that he could not find any respiratory complaint or treatment during service that would be COPD related. He concluded by stating that there was no evidence to suggest the COPD was causally related to some incident or finding recorded during service to including exposure to herbicides or the clinical findings in service, and that therefore his COPD was not caused by incidents in service. However, the October 2007 examiner also expressed the requested opinion as to the date of onset and etiology of the Veteran's COPD. The examiner stated that the etiology was most likely the quite extensive smoking history that he had in the short period of time of six to eight years of up to six packs a day, "combined with dust and other type of exposures over a 20 to 30 year period of time....". Therefore, the Board returned this opinion to the October 2007 examiner to obtain clarification as to whether or not this referred to time and exposure during active service or after discharge from service. In November 2009, a clarification of the October 2007 opinion was received from the physician who originally examined the Veteran and authored the opinion at that time. This examiner noted that the claims folder was once again reviewed. The previous opinion was again discussed, and the examiner noted that that COPD was first diagnosed in 2001 and could not have occurred any sooner than the late 1990s based on his symptoms and lack of any diagnostic testing. The examiner repeated that the etiology of the Veteran's COPD was most likely the extensive smoking history that occurred within a six to eight year period when combined with the dust and other type of exposures over a 20 to 30 year period of time culminating with the complications of sleep apnea, hypoxemia secondary to morbid obesity, and pulmonary arterial hypertension. There was no evidence to suggest that the COPD was causatively linked to some incident or finding recorded during service, and this was to include exposure to Agent Orange. The examiner clarified that the 20 to 30 year period mentioned in his opinion referred to the period of time between the Veteran's discharge in 1980 and the diagnosis in 2001 up until the period of evaluation in 2007. This would have been 20 to 30 years but more accurately would be 20 to 27 years. The examiner further clarified that the reference to the dust and other types of exposures was intended to mean the normal dust and exposures that that would occur in a normal setting for all individuals. It was not referable to the dust, exhaust fumes, cleaning chemicals or other solvents in service, nor was it a reference to asbestos. The rationale for this opinion was that if the Veteran had developed his COPD due to dust, exhaust fumes, cleaning chemicals or other solvents, or asbestos, then one would expect acute exposures that are either documented or treated medically which the Veteran did not have in service but rather began only 20 years after he left service. Therefore, the cause of the COPD would be a culmination of the dust and other types of exposure since leaving service. The examiner summarized by stating that the etiology of the Veteran's COPD was a combination of dust and other types of exposures over a 20 to 27 year period of time after leaving service and it was not at least as likely as not related to any exposures to dust, exhaust fumes, cleaning chemicals, solvents, or asbestos during active service. After careful consideration of the Veteran's contentions and the medical evidence, the Board finds that entitlement to service connection for COPD is not warranted. The Veteran does not have a disability that can be attributed to exposure to Agent Orange or asbestos, and the only competent medical opinion states that the Veteran's COPD is not related to any exposures to dust, exhaust fumes, cleaning chemicals, solvents, or asbestos during active service. Initially, the Board notes that as the Veteran served in Vietnam, exposure to Agent Orange is presumed. However, mere exposure is not sufficient to establish service connection. It must still be demonstrated that the COPD is the result of this exposure. In this regard, COPD is not one of the disabilities that can be presumed to be the result of Agent Orange exposure. See 38 C.F.R. § 3.309(e). Moreover, there is no medical opinion that relates the Veteran's COPD to Agent Orange, and the October 2007 examiner opined that there was no relationship to Agent Orange. Therefore, service connection for COPD based on exposure to Agent Orange is not established. Similarly, the Board accepts that the Veteran was exposed to asbestos during active service. Once again, exposure alone is not a basis for service connection. It must still be demonstrated that the Veteran's disability is the result of that exposure. The Board notes that the Veteran does not have a diagnosis of interstitial pulmonary fibrosis or asbestosis, which is the most common disability associated with asbestos. There is also no evidence of pleural effusions or fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, or lung cancer. The October 2007 examiner expressly stated that the Veteran's COPD as not related to exposure to asbestos. The Board concludes that the preponderance of the evidence is against a finding that the Veteran's COPD is the result of asbestos exposure. As for the Veteran's argument that he used to tobacco during service, the Board notes that the October 2007 VA examiner attributes the development of COPD in part to the smoking during service. However, for claims filed after June 9, 1998, as here, an illness will not be considered service connected on the basis that it resulted from injury or disease attributable to the use of tobacco products during service. See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. The Veteran's claim was received in June 2003. Therefore, service connection on this basis is precluded by law. Finally, the Board finds that the preponderance of the evidence is also against a finding that the Veteran's COPD has developed as the result of exposure to any other substances during active service. The Board finds that the Veteran is competent and credible to state that he was exposed to these substances. However, October 2007 examiner notes in the November 2009 clarification that the service treatment records are entirely negative for any findings that could be attributed to COPD. He further notes that if the substances to which the Veteran was exposed in service had been responsible for the development of COPD, then he would have displayed some acute symptoms during service. Instead, he notes that COPD was first diagnosed over 20 years after discharge from service. The October 2007 examiner attributes this disability to the Veteran's short but extensive history of smoking combined with the accumulation of exposure to normal environmental factors during the over 20 years after discharge from service. The October 2007 examiner stressed that the COPD was not related to service, and he removed any ambiguity from this opinion in his November 2009 clarification. There is no competent medical opinion to the contrary. The Board must conclude that without evidence of a nexus between the Veteran's current COPD and events during active service, entitlement to service connection for COPD is not warranted. The Board has also considered whether or not a nexus has been demonstrated by continuity of symptomatology, but finds there is no continuity in this case. The Veteran has not stated that he experienced his COPD symptoms from the time of discharge until the disability was diagnosed over 20 years later. Furthermore, there is no medical evidence that would demonstrate such a continuity of symptomatology, and a nexus is not established on this basis. In reaching this decision, the Board notes the sincere belief of the Veteran that the many environmental hazards to which he was exposed during service have resulted in the development of his COPD. While the Veteran is competent and credible to talk about exposure to these hazards, he is not a physician, and he is not qualified to express a medical opinion as a relationship between these hazards and COPD. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). As noted above, the only competent medical opinion has found that there is no relationship between the hazards to which the Veteran was exposed in service and the COPD he developed over 20 years later. ORDER Entitlement to service connection for chronic obstructive pulmonary disease, to include claimed as due to exposure to Agent Orange, asbestos, and tobacco use during service, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs