Citation Nr: 1006096 Decision Date: 02/18/10 Archive Date: 03/02/10 DOCKET NO. 03-34 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lung condition, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and wife ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from June 1948 to June 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran participated in a Travel Board hearing with the undersigned Veterans Law Judge in June 2005. The transcript of the proceeding is associated with the claims file. In February 2007 and September 2009, the Board remanded the Veteran's claim for additional development. As a preliminary matter, the Board finds that the remand directives have been substantially completed, and, thus, a new remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998), Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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 A lung condition has not been etiologically related to active military service. CONCLUSION OF LAW A lung condition was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in May 2001, prior to the initial unfavorable AOJ decision issued in August 2003. In the aforementioned correspondence, the RO informed the Veteran of what the evidence must show to establish entitlement to service connection. The RO also explained what information and evidence he must submit and what information and evidence will be obtained by VA. As such, this correspondence fully complied with the notice requirements of 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159 (b), as well as the Court's holding in Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board notes that the May 2001 VCAA letter did not notify the Veteran regarding the assignment of disability ratings and effective dates. However, the Veteran was sent notification in October 2008 with respect to the assignment of disability ratings and effective dates. The claim was then readjudicated in the November 2009 Supplemental Statement of the Case and, therefore, any timing error is cured. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as signified in a statement of the case or supplemental statement of the case, is sufficient to cure a possible timing defect). In sum, the Veteran has been provided VCAA notice in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 with respect to all pertinent provisions. As such, the Board concludes that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The Board also finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2009). In this regard, the Veteran's service treatment records are associated with the claims file, as well as all relevant private and VA treatment records. The Veteran was also afforded a VA examination in November 2008. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is more than adequate, as it was predicated on a full reading of the Veteran's claims file and all pertinent evidence of record, to include the Veteran's statements, and a complete rationale was provided for the opinion stated, relying on and citing to the records reviewed. The Board recognizes that the Veteran's claim was remanded in September 2009 to provide another VA examination. However, the record shows that the Veteran was unable to attend a VA examination because he cannot travel. The Veteran's private physician, Dr. T.W., explained in a letter that due to the Veteran's multiple medical problems, he was unable to travel. Furthermore, the Veteran's wife submitted a letter explaining that the Veteran could not attend an examination as he was placed in a nursing home and was immobile. Thus, the Board finds that the VA is unable to comply with this aspect of the statutory duty to assist through no fault of VA's. In these circumstances, another remand to provide a VA examination would serve no useful purpose as the Veteran is immobile and cannot travel. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). Both the duty to assist the Veteran and the duty to notify the Veteran have been met. Accordingly, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim, and the Veteran has not indicated that he has any additional evidence or information to provide in support of his claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Legal Criteria In general, service connection may be granted for disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in or aggravated by service. 38 C.F.R. § 3.303(a) (2009). In order to establish service connection for a 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). 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. VA has, however, 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 United States Court of Appeals for Veterans Claims (Court) found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos-related disease related to alleged asbestos exposure in service. See VAOGCPPREC 04-00. III. Service Connection The Veteran contends that his current lung condition is related to active military service. Specifically, he asserts that he served aboard the USS Prosperine and his duty consisted of chipping and removing paint which caused his lung condition. The first question that must be answered is whether the Veteran likely was exposed to asbestos during service. In this regard, the Veteran reported that while aboard the USS Prosperine, he worked as a sandblaster and chipped and removed paint. The personnel records show that the Veteran's military occupational specialty (MOS) was seaman. The records also confirm that the Veteran was aboard the USS Prosperine when it returned to Little Creek, Virginia to commence repair activities in April 1951. See Dictionary of American Naval Fighting Ships. In reviewing the history of the ship, the Veteran's MOS, and the Veteran's statements, the Board finds that it is at least as likely as not that the Veteran was exposed to asbestos during his reported duties aboard the USS Prosperine. However, in making this determination, the Board observes that the service treatment records are negative for complaints, treatment, or diagnosis of a lung condition. Indeed, the June 1952 separation examination report shows that no defects were noted. Furthermore, the Veteran received a photofluoroscopic chest x-ray, which was negative. See June 1952 record. Following service, the Veteran stated that he was treated by Dr. R. from the 1950s to the 1980s for a variety of medical conditions. There were no medical records available from Dr. R.; however, the Veteran submitted lay statements from employees of Dr. R.'s office. In a July 2001 statement, N.E. stated that the Veteran was a patient of Dr. R. from 1955 to 1987. She stated that she worked for Dr. R. from 1952 to 1990 and that the Veteran was frequently treated for bronchitis and respiratory problems. In another July 2001 statement, T.F. wrote that during the 37 years she worked for Dr. R., the Veteran was a patient who was seen frequently due to chronic bronchitis and respiratory problems. However, the first objective medical evidence related to the Veteran's lungs is shown in a 1977 CT scan. It was noted that there was a negative chest x-ray, except for minimal discoid changes in the left lung base. The treatment records show that the Veteran, at some point, developed a pleural based nodular density in the left lung base. A July 1999 CT scan showed assymetric lung volumes with some atelectasis and scarring noted at the bases. An August 1999 chest scan reveals an impression of chronic interstitial fibrotic lung densities peripherally basilarly, and a few areas of linear scar or chronic plate-like atelectasis and borderline mild cardiomegaly. A November 2000 CT scan also showed a history of a 1.5 cm left pleural based nodule and that the Veteran had a positive smoking history. Furthermore, the November 2008 VA examination report included diagnoses of restrictive respiratory ventilatory defect and obstructive respiratory ventilatory defect. Nonetheless, there is no medical evidence relating any of the Veteran's current lung conditions to asbestos exposure or otherwise to active service. In this respect, the Veteran was afforded a VA examination in November 2008. The Veteran reported that his lung condition began in the 1960s. He had repeated episodes of acute bronchitis and stated that he was a sandblaster and painter in service with asbestos exposure. The report reveals diagnoses including restrictive respiratory ventilatory defect as least as likely as not due to Amiodarone toxicity and obstructive respiratory ventilatory defect as evidenced by low FEV1. A more precise diagnosis could not be rendered as there was no objective data to support a more definitive diagnosis. The examiner stated that she could not resolve the issue without resorting to mere speculation. The Veteran's pulmonary function testing values of FVC, TLC, and DLCO declined during the time that he was on the medication Amiodarone, making Amiodarone as least as likely as not the cause of the restrictive lung disease. Amiodarone was a known cause of restrictive lung disease and decreased DLCO. The examiner stated that to opine that there was any contribution from any active duty inhaled toxic substance would be speculative. Generally, obstructive lung disease was caused by tobacco use rather than inhaled toxic substances such as silica dust and asbestos. The Board also notes that the September 1999 pulmonary function test results show that the lung volumes revealed small airways dysfunction and the VA physician noted that the Veteran should have follow-up pulmonary function studies as reductions in diffusing capacity are often the harbinger of amiodarone related pulmonary toxicity. There is no other medical evidence of record that indicates that any current lung condition is related to active service or asbestos exposure and, therefore, service connection cannot be granted. The Board recognizes that the November 2008 VA examiner did not provide an opinion regarding the August 1999 chest scan of the Veteran's lungs which revealed an impression of chronic interstitial fibrotic lung densities peripherally basilarly, and a few areas of linear scar or chronic plate-like atelectasis and borderline mild cardiomegaly. However, as explained above, the Veteran is not able to attend a VA examination to provide additional medical evidence and, again, there is no medical opinion relating any lung condition to active service to include asbestos exposure. The Veteran has submitted information consisting of a newspaper article. The article chronicled the story of a Veteran who tried to persuade the government to recognize a lung disease that he and other sailors may have contracted on Navy ships and that he inhaled toxic dust which resulted in his lung disease. The Court has held that a medical article or treatise can provide support to a claim, but that they must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships. Sacks v. West, 11 Vet. App. 314, 316-17 (1998); see Wallin v. West, 11 Vet. App. 509, 514 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus); see also Mattern v. West, 12 Vet. App. 222, 228 (1999). The submitted article is not medical in nature and is not reflective of the specific facts of this case. In addition, the article has never been commented on in any form by a medical professional. As such, the article is not competent to show that the Veteran's lung condition is related to active military service. After a careful review of the evidence of record, the Board finds that entitlement to service connection for a lung condition has not been established. The Board has conceded that the Veteran was likely exposed to asbestos. Despite this in-service exposure, however, there is no medical evidence relating any current lung condition to asbestos exposure or otherwise to active service and the claim must fail on this basis. The Board recognizes the Veteran's contentions that he suffered from a lung condition since active service. While the Veteran is competent to describe symptoms such as difficulty breathing or shortness of breath, his lung condition is not a condition under case law that has found to be capable of lay observation, and the determination as to the presence of the disability therefore is medical in nature, that is, not capable of lay observation. See Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the Veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The Board recognizes that the Veteran submitted lay statements attesting to his treatment for bronchitis and respiratory problems since 1955, several years after separation from active service. See lay statements. However, the provided lay statements were from employees of the medical office, not medical professionals. Espiritu v. Derwinski, 2 Vet. App. 492 (1992), see generally Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Moreover, there is no objective medical evidence related to the Veteran's lungs until the 1977 chest scan which revealed a negative chest examination except for minimal discoid changes in the left lung base. In sum, given the negative service treatment records, absence of treatment for years after service, and the absence of any medical evidence relating the Veteran's symptoms or lung conditions to service or asbestos exposure, the Board finds that the evidence weighs against the continuity of symptomatology. See Savage, supra. In addition, the Board recognizes the sincerity of the arguments advanced by the Veteran that his current lung condition is related to his military service to include asbestos exposure. However, the resolution of an issue that involves medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, as stated above, a lung condition requires specialized training for a determination as to diagnosis and causation, and therefore the Veteran is not competent to provide an opinion as to the etiology of his current lung condition. For these reasons, the Board rejects the Veteran's statements as competent evidence to substantiate that his lung condition is related to active service. The Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against a grant of service connection for a lung condition. Thus, the benefit of the doubt doctrine is not applicable in the instant appeal and the claim is denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to service connection for a lung condition is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs