Citation Nr: 1006326 Decision Date: 02/19/10 Archive Date: 03/02/10 DOCKET NO. 05-41 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for lung disease, including nonspecific interstitial pneumonia, sleep apnea and chronic obstructive pulmonary disease (COPD), as secondary to asbestos exposure. REPRESENTATION Appellant represented by: Arizona Veterans Service Commission ATTORNEY FOR THE BOARD A.G. Alderman, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from June 1953 to February 1957 and in the Air Force from February 1957 to April 1974. This matter comes before the Board of Veterans Appeals (Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. This matter was remanded in July 2009 for additional development. All development has been completed and associated with the claims file. It is noted that the Veteran filed a claim for service connection for his lung disorders as a result of exposure to Agent Orange. The RO considered the Veteran's claim in a separate rating decision which has not been appealed and is not before the Board at this time. FINDING OF FACT The Veteran's claimed lung diseases, including nonspecific interstitial pneumonia, sleep apnea and COPD did not have onset during active service and are not otherwise etiologically related to his active service, including asbestos exposure during active service. CONCLUSION OF LAW The criteria for service connection for lung diseases, including nonspecific interstitial pneumonia, sleep apnea and COPD, to include as secondary to asbestos exposure, have not been met. 38 U.S.C.A. §§ 1110, 1154(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2009). In general, service connection 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 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 promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos- related information as M21-1, Part VI. The Court of Veterans Appeals (now the Court of Appeals for Veterans Claims and hereinafter the Court) has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Subpart ii of M21-1MR Part IV, lists some of the major occupations involving exposure to asbestos including 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, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. 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. M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21- 1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C 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). 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. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). 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 by reason of having served aboard a ship. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed.Cir. 2002); VAOPGPREC 4-2000 (April 13, 2000), published at 65 Fed Reg. 33422 (2000). The Veteran states that he was exposed to asbestos while serving as a radioman in the U.S. Navy. He also stated that living in the crew compartment and having the top bunk directly below the asbestos wrapped pipes exposed him to the asbestos fibers. He further stated that while working in the telephone center, the center was completely remodeled, thus exposing him to asbestos. The Veteran's personnel records show that his duties were in communications and that he had sea service while serving in the U.S. Armed Forces. The service treatment records (STRs) include the retirement examination, dated November 1973. This examination fails to indicate any type of lung disorder, including but not limited to nonspecific interstitial pneumonia, sleep apnea and COPD. The examination specifically indicates that the Veteran underwent a Pulmonary Function Test (PFT) and that the test results were normal. The Report of Medical History, also dated November 1973, shows that the Veteran indicated that he was in good health. He did not indicate a lung problem on the form, providing evidence against this claim. Also of record is a separation and reenlistment examination, dated July 1959. The record fails to indicate a lung disorder. An enlistment examination and report of medical history, both dated February 1957, also fail to indicate a lung disorder. A report of medical history, dated October 1969, indicates that the Veteran had sinusitis, but no other respiratory related disorder. An examination dated August 1969, conducted for promotion, showed no indication of a lung disability. Also of record is a November 1965 letter from the H.M.G. that states that the Veteran was treated in February 1965 for chest pain across the upper chest without radiation. The examination was entirely normal except for mild seasonal sinusitis. The chest x-ray was interpreted by the roentgenologist as showing a few fibrotic streaks of density in the right base that may be old, but that could show minor pneumonia in the right base. The physician diagnosed the Veteran as having mild chronic sinusitis, bronchitis, excessive weight, and early right inguinal hernia. The Veteran had a follow-up appointment in March 1965 and testing showed clear lungs. In May 1965, the Veteran again had an upper respiratory infection with joint pains, headache, and mild pharyngitis. The Veteran was not seen by the provider after May 1965. The Board notes that the STRs, including the letter from H.M.G., fail to indicate that the Veteran had a chronic lung disability during service or at the time of separation from service. At most, the Veteran was diagnosed with bronchitis and sinusitis during service. He was not diagnosed with nonspecific interstitial pneumonia, sleep apnea and COPD, thus weighing against a claim for direct service connection. Records dated subsequent to service fail to show treatment of a lung disorder within one year of separation from service, thus weighing against the claim for service connection. The detail of the STRs only increases it probative value to the Board. The Board has reviewed private treatment records from Dr. L.L., D.O., FCCP. A letter dated December 2003 states that the Veteran was a previous two pack per day smoker having smoked from the age of 18 until 1983. The Veteran reported exposure to tuberculosis in 1994. The impressions included a finding of pulmonary fibrosis likely secondary to idiopathic etiologies although collagen vascular disease needed ruled out; exercise induced hypoxemia; coronary artery disease (CAD); and COPD. Etiologies were not otherwise noted. Another letter dated December 2003 shows that the Veteran had a biopsy and that the tissue was non-diagnostic. The Veteran's bronchoscopic biopsy showed no evidence of malignancy, but showed mild chronic inflammation. The impressions included pulmonary fibrosis of unclear etiology, exercise induced hypoxemia, CAD, obstructive airways disease, and chronic hypoxemia. A February 2004 letter indicates that the Veteran's biopsy showed non-specific interstitial pneumonitis. The impression included interstitial lung disease, non-specific interstitial pneumonitis, chronic hypoxemia, and CAD. Etiologies were not indicated. The Board has reviewed private treatment records from Dr. K.J., MD. An April 2004 letter shows that the Veteran was diagnosed with pulmonary fibrosis in November 2003 and that he had an open lung biopsy. The result of the test was not available to Dr. K.J., but the doctor noted that the CAT scan of the Veteran's chest showed a pattern not consistent with idiopathic pulmonary fibrosis. The assessment was respiratory failure driven by COPD and interstitial pulmonary disease; interstitial lung disease; COPD; and hypoxemia. Dr. K.J. noted that the Veteran did not have a history suggestive of sleep apnea or pulmonary hypertension. A June 2004 letter states that the Veteran had interstitial lung disease. Dr. K.J. stated that the major process driving the symptoms is a combination of obstructive and restrictive lung disease. It was noted that the exact pathologic process affecting his lungs had not been determined. A letter dated July 2004 indicates that the Veteran has interstitial lung disease. No etiology was noted. An August 2004 letter shows that the Veteran had interstitial lung disease, COPD, and allergic rhinitis. No etiologies were noted. Dr. K.J. submitted a treatment summary dated November 2005 indicating that the Veteran had been diagnosed with nonspecific interstitial pneumonia. Dr. K.J. said the Veteran reported being exposed to asbestos in the past and that he did not have any pulmonary problems until three or four years ago. The assessment was interstitial lung disease for which no etiology ha been determined, and that the Veteran has been exposed to asbestos, which may be a likely culprit; however, Dr. K.J. stated that it is difficult to establish a link between asbestos and the disorder since pathology and radiographic findings can be nonspecific. Dr. K.J. submitted a letter indicating that the Veteran has a history of interstitial lung disease, chronic respiratory failure, and hypoxemia, for which he requires oxygen supplementation. No etiology was indicated. Also of record are private records from S.P.A.; however, the etiologies of the Veteran's lung disabilities are not indicated. The Veteran had a VA examination in September 2009. The examiner reviewed the claims file and noted pertinent treatment records in the examination report. The examiner noted that the STRs do not show lung disease. She also thoroughly reviewed the Veteran's private treatment records and statements. The examiner performed the physical evaluation and found no evidence of a benign or malignant neoplasm and no evidence of venous congestion. The examiner found decreased breath sounds, rales, and dyspnea on mild exertion. She stated that chest expansion is severely limited. The x-rays showed normal heart size and vasculature and minimal linear atelectasis and/or fibrosis at the right lung base. The x- rays showed no confluent infiltrate, calcific pleural plaque formation, or pleural fluid. The bony structures were unremarkable. The impression was modest changes at the right lung base with no acute parenchymal findings. The PFT testing showed normal lung volumes compatible with moderate obstructive lung defect and insignificant response to bronchodilator. The examiner diagnosed the Veteran with nonspecific interstitial pneumonia of unknown etiology, COPD most likely due to tobacco, and sleep apnea of unknown etiology. Regarding the nonspecific interstitial pneumonia, the examiner stated that the condition is less likely as not caused by or a result of in service exposure to asbestos or otherwise related to service. The opinion was based upon the private treatment records and physical examination. The examiner stated that the condition has been associated with many medical conditions, though a causal link has not been identified. She further stated that the condition may be idiopathic. Associations include HIV, connective tissue diseases, hypersensitivity, pneumonititis, and drug exposures. More importantly, she said there is no evidence of asbestos related changes on the lung CT or lung biopsy and noted that Dr. K.J. found no etiology of the condition despite the history of possible asbestos exposure. The examiner related the COPD to the Veteran's smoking history. She said the condition was not caused by or a result of service exposure to asbestos and is not otherwise related to service. The examiner supported her opinion, stating that the COPD is most likely related to smoking and that COPD is not associated by cause with asbestos exposure. Further, the evidence does not show that the Veteran had or had symptoms of COPD in service. Finally, the examiner diagnosed the Veteran with obstructive sleep apnea. She stated that the condition is not caused by or a result of in service exposure to asbestos or otherwise related to service. The opinion was based on the fact that there is no known association of asbestos exposure as a cause for obstructive sleep apnea. She further stated that there is no evidence of a sleep apnea condition in service. The Board has considered all of the evidence and finds that service connection is not warranted for any of the Veteran's lung disabilities, including nonspecific interstitial pneumonia, sleep apnea and COPD, to include as secondary to asbestos exposure. The Veteran's private medical records do not indicate the etiology of his disabilities. At most, the letter from Dr. K.J., dated November 2005, offers a speculative opinion that asbestos may be a likely culprit but that it is difficult to establish a link between asbestos and interstitial lung disease since pathology and radiographic findings can be nonspecific. It is well settled that speculative medical statements do not support a grant of service connection. In Bloom v.West, 12 Vet. App. 185 (1999), the Court of Appeals for Veterans Claims (Court) found unpersuasive the unsupported physician's statement that the veteran's death "could" have been caused by his time as a prisoner of war. In Stegman v. Derwinski, 3 Vet. App. 228 (1992), the Court held that evidence favorable to the veteran's claim that did little more than suggest a possibility that his illnesses might have been caused by service radiation exposure was insufficient to establish service connection. Similarly, in Tirpak v. Derwinski, 2 Vet. App. 609 (1992), the Court found that medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship. Hence, Dr. K.J.'s report is afforded little probative weight. The Board finds that the VA examiner's opinion is more probative of the issue of whether the Veteran's lung disabilities are related to service or possible exposure to asbestos in service. The examiner opined that the Veteran's disabilities are not related to service or in-service exposure to asbestos. Her opinions are supported by medical evidence and a full rationale. Most importantly, regarding the Veteran's claims of asbestos exposure, the VA examiner stated that there is no evidence of asbestos related changes on the lung CT or lung biopsy. For these reasons, the Board finds that his opinion is entitled to great probative weight. As the preponderance of evidence shows that the Veteran has no disability related to asbestos exposure and that his current disabilities are unrelated to his active service, his appeal is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the- doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction, or regional office (RO). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims 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) also requires VA to provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the Veteran's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in November 2004 that fully addressed all three notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained private treatment records, service treatment records, and personnel records. The Veteran submitted statements and photographs and was afforded a VA medical examination in September 2009. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the 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 v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for lung disease, including nonspecific interstitial pneumonia, sleep apnea and chronic obstructive pulmonary disease (COPD), as secondary to asbestos exposure, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs