Citation Nr: 1012286 Decision Date: 04/01/10 Archive Date: 04/14/10 DOCKET NO. 09-37 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as a breathing disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active military duty from January 1952 to December 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Tiger Team in Cleveland, Ohio, which denied service connection for COPD. Jurisdiction over this case has been returned to the Montgomery, Alabama RO. In April 2009, the RO also granted service connection for bilateral hearing loss, which is a full grant of the benefit sought and that matter is not before the Board for appellate consideration. 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). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's COPD is related to service. CONCLUSION OF LAW COPD was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, (West 2002); 38 C.F.R. § 3.159 (2009). In correspondence dated in November 2008 the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009) and 38 C.F.R. § 3.159(b) (2009). See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has asserted that his COPD is the result of exposure to asbestos in service. With regard to the notice requirements for asbestos-related claims, the record shows the RO complied with the procedures for such development. The November 2008 letter the RO sent the Veteran requested details, including the nature of the disability he claims is related to asbestos exposure, the history of his exposure in service, and his history of employment after service. The Veteran has not submitted the requested evidence or information in support of his contention that he was exposed to asbestos. The Board notes that the VA's duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA has fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained his service treatment records and VA treatment records. VA also obtained his private medical records from K.W., M.D. The RO also requested the National Personnel Records Center to furnish records of asbestos exposure in service or jobs the Veteran performed. All available records requested were furnished. There is no indication of any outstanding records pertaining to his claim. A VA examination has not been accorded the Veteran with regard to his COPD. With respect to such claim the Board finds that an examination for the purpose of obtaining a nexus opinion is not needed. 38 C.F.R. § 3.159(c)(4); See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is no credible, competent evidence that the claimed COPD emanates from service. Thus, the Veteran has not presented evidence indicating a nexus between COPD and service. Furthermore, the medical evidence or record does not show that the Veteran has an asbestos-related respiratory disorder. Consequently, there exists no reasonable possibility that a VA examination would result in findings favorable to the Veteran. Accordingly, the Board finds that an etiology opinion is not "necessary." See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, supra. II. Service Connection -- COPD In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). There must be medical evidence of a current disability, medical or lay evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). 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. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), 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 evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, supra. at 54. A. Direct Service Connection The Veteran's DD Form 214 reflects that his military occupational specialty was equivalent to a boiler operator. His service records show he completed training courses for "Boilerman 2." Initially the Veteran filed a claim for service connection for a breathing disorder in October 2008. He asserted that he worked on and repaired steam lines and pumps that were "undoubtedly insulated with asbestos material!" In a subsequent statement in October 2009 he asserted that smoking for forty years "might be" the reason his breathing is erratic. He indicated that he started smoking while in the military. However for the reasons and bases discussed below, the Board finds that service connection for COPD, claimed as a breathing disorder is not warranted. The Veteran's service treatment records are absent any complaints, treatment or diagnosis of COPD or other respiratory disorder. Service treatment records show that the Veteran was treated for a common cold in April 1955. The Veteran noted in his VA application for compensation dated in October 2008 that his breathing disorder began in 2004, which is approximately 49 years after his separation from service. This nearly 50-year lapse between the conclusion of his military service and the onset of his symptoms provides compelling evidence against his claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, the Veteran has failed to show continuity of symptomatology during the many years since service to otherwise support this claim. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). The Veteran received private medical treatment from Dr. K.W. Treatment records from Dr. K.W. dated in 2008 show an impression of COPD, moderate. In February 2009 a VA outpatient clinic pulmonary examination was negative for current symptoms. The assessment was COPD, doing well. A VA outpatient note dated in April 2009 shows normal lungs on physical examination; there were no wheezing, rales or rhonchi. The assessment was COPD. A VA outpatient clinic assessment in July 2009 indicates the Veteran's medication for COPD was changed because there were no current symptoms. As there was no COPD diagnosed in service or for many years after service, there is no basis on which to grant service connection on a direct basis. However, the Veteran has asserted that his COPD is as result of asbestos exposure in service. B. Asbestos Exposure in Service There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting from asbestos exposure. The date of this amended material is December 13, 2005. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, 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 products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. at Subsection (f). Asbestos fiber masses 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. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether 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. Id. at Subsection (h). The Veteran contends he was exposed to asbestos during his military service while repairing or maintaining equipment wrapped in asbestos for insulation. His service personnel records indicate that his military occupational specialty (MOS) was boiler operator. While the Veteran's exposure to asbestos can be conceded based on his MOS, as stated above, the Veteran does not currently have an asbestos-related respiratory disorder. VA and private treatment records have assessed COPD as the Veteran's only respiratory disorder. This has not been attributed to service, including any asbestos exposure in service. The Board has also considered the Veteran's lay statements. Although the Veteran may believe that his COPD is related to his military service, he is only competent to testify to his symptoms as he lacks the medical expertise to render a medical diagnosis or medical opinion as to the etiology of his disorder. See 38 C.F.R. § 3.159(a)(2); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Moreover, to the extent that the holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) can be interpreted to enable a lay person to speak as to etiology in some limited circumstances involving only observable factors, the question of causation here involves complex issues that the Veteran is not competent to address. As the Veteran has not been diagnosed with an asbestos- related disorder and his currently diagnosed COPD has not been linked directly to service or to asbestos exposure in service, the Veteran can not be granted service connection directly or as due to asbestos exposure. For these reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a COPD. C. Tobacco Products As noted above, the Veteran contends that smoking cigarettes in service may have caused his breathing disorder. 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. For the purpose of this section, the term "tobacco products" means cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco. See 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300(a) (2009). As the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Accordingly, the appeal is denied. ORDER Service connection for COPD, claimed as a breathing disorder is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs