Citation Nr: 1011791 Decision Date: 03/30/10 Archive Date: 04/07/10 DOCKET NO. 08-13 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a lung disorder, to include as due to asbestos exposure. 2. Entitlement to service connection for hepatitis, claimed as hepatitis C. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christine C. Kung, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1980. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO). FINDINGS OF FACT 1. The Veteran's lung disorder, diagnosed as emphysema, obstructive respiratory disease, and likely chronic obstructive pulmonary disease (COPD), is not etiologically related to active service, nor does he have a lung disorder etiologically related to in-service asbestos exposure. 2. The Veteran does not have currently diagnosed hepatitis C, or viral hepatitis or residuals thereof. CONCLUSIONS OF LAW 1. A lung disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). 2. Hepatitis, claimed as hepatitis C, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) 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). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In an August 2007 letter, VA informed the Veteran of the evidence necessary to substantiate his claim, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. The August 2007 letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, private treatment records, and a VA examination have been associated with the claims file. The Board notes specifically that the Veteran was afforded a VA examination in February 2008 to address his claimed lung disorder. 38 C.F.R. § 3.159(c)(4) (2009). 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). As set forth in greater detail below, the Board finds that the VA examination obtained in this case is adequate as it is predicated on a review of the claims folder and medical records contained therein; contains a description of the history of the disability at issue; documents and considers the Veteran's complaints and symptoms; identifies the Veteran's current lung diagnoses based on diagnostic testing, and provides a fully articulated opinion along with a statement of reasons and bases for the opinion rendered. The Veteran was not provided a VA examination to address his claimed hepatitis. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the United States Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Board finds that a VA examination is not necessary to address the Veteran's hepatitis. As the Board will discuss below, the Veteran does not have a current diagnosis of hepatitis C, or viral hepatitis or residuals thereof. Absent evidence that indicates that the Veteran has a current claimed disability related to symptoms in service or persistent or recurrent symptoms of a disability related to hepatitis, the Board finds that a VA examination is not necessary for disposition of the claim. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record is complete and the case is ready for review. B. Law and Analysis In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2009). 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) (2009). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Lung Disorder In cases involving asbestos exposure or asbestos-related disabilities, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure. 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. 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). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. Id. 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). The Manual cited above notes that 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; further, 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. M21-1MR IV.ii.2.C.9.f. The Veteran contends that he was exposed to asbestos primarily while serving aboard nuclear submarines in service. He noted that all lines, except for electrical lines, were wrapped in an asbestos coating to prevent fires and burns to the personnel. The Veteran's DD 214 shows that the served as a submarine nuclear propulsion plant supervisor. Service personnel records show that the Veteran's served on the U.S.S. Daniel Boone, and the U.S.S. Sunfish between 1970 and 1980. The RO has conceded that the Veteran was exposed to asbestos during service and there is no indication of post- service asbestos exposure. Service treatment records show that the Veteran was seen in February 1974 for coughing spells for the past month. He was diagnosed with chronic bronchitis. The Veteran was seen in February 1978 for congestion and unproductive cough, diagnosed as flu syndrome versus pneumonia. The Veteran had a May 1979 diagnosis of mycoplasma pneumonia. There were no lung complaints noted on a February 1980 separation examination. Private treatment records dated from 2001 to 2007 show that the Veteran had a diagnosis of mycoplasma bronchitis in December 2005, acute bronchitis with reactive airway disease in January 2006, and pneumonia with reactive airway disease in March 2006. The Veteran submitted a January 2008 opinion from Dr. R.K.R., his private physician. Dr. R.K.R. sated that he Veteran was a long time patient of his. He sated that he had reviewed the Veteran's medical records, and that it was his medical opinion that it is at least as likely as not that his lung condition that he suffers from is service-related. No further elaboration was provided. A later January 2008 letter from Dr. R.K.R. shows that he Veteran reported increasing dyspnea on exertion at the time of an August 2007 clinical visit. The Veteran reported he had been exposed to asbestos in the Navy as well as ionizing radiation. The Veteran's physical examination that day was normal, an EKG was normal, and his chest x-ray was within normal limits. A Cardiolite Adenosine stress test was ordered later in August 2007 due to the Veteran's shortness of breath on exertion. Findings from the stress test were reported and there was no evidence of ischemia or infraction. A pulmonary function test was enclosed. Spirometry demonstrated moderate obstructive lung disease. A VA examination was completed in February 2008. The claims file was reviewed and specific findings from service treatment records were discussed. The Veteran had a history of non-productive cough, dyspnea, and pneumonia in the past. He used an oral bronchodilator daily. A physical examination was completed. No abnormal respiratory findings were found. The Veteran was noted to have many years of asbestos exposure in the United States Navy. The VA examiner stated that the Veteran worked aboard two Navy submarines for almost 10 years. The Veteran remembered seeing asbestos freely floating and also worked in repairing both these vessels for long periods of time. The Veteran started smoking on entry into the Navy and smoked two-and-a- half packs a day. He stopped smoking 20 years prior. Some time ago, the Veteran noticed increasing shortness of breath with exertion. He had some pneumonia episodes in the past. His physician had been treating him for shortness of breath. A chest x-ray was normal and there was no evidence of pleural plaques. The Veteran's physical examination was unremarkable. A chest x-ray, pulmonary function tests, and a computed tomography (CT) scan of the chest were ordered. The VA examiner noted that there was a mention of fume exposure and possible ionizing radiation; but according to the Veteran's most recent chest x-ray, which was normal, the VA examiner did not feel that any lung condition was due to fume exposure or ionizing radiation. The VA examiner noted that he would perform a CT scan of the chest and a chest x-ray to determine if the Veteran had asbestosis. He opined that the most likely cause of the Veteran's breathing disorder was a chronic smoking history, even though the Veteran stopped smoking many years ago. It was noted that the Veteran smoked excessively while he was in the Navy. X-rays of the chest were evaluated for possible asbestosis. The Veteran had a normal appearing chest examination with no evidence of pleural plaque disease. Spirometry showed moderate airflow obstruction with significant improvement after bronchodilators. The Veteran was diagnosed with bronchitis in the past. The examiner stated that the Veteran most likely had a component of chronic obstructive pulmonary disease (COPD). It was noted that the Veteran's obstructive respiratory disease was likely related to smoking. Problems associated with the diagnosis included cough and shortness of breath. A CT scan of the chest revealed mild to moderate emphysema, mild bilateral lower lob air trapping, tiny pleural calcification medially on the right, and multiple intermediate bilateral pulmonary nodules. Findings from the CT were discussed with the radiologist. The VA examiner stated that the isolated pleural findings were not indicative of asbestos exposure. The VA examiner opined that there was no evidence of pulmonary asbestosis noted. Therefore, the Veteran's current lung complaints were not due to any exposure to asbestos while on active duty. In a February 2008 addendum, the VA examiner described findings in service treatment records pertaining to chronic bronchitis in 1974 and mycoplasma in 1979, noting that the Veteran had a normal separation examination. He noted post- service diagnoses, including bronchitis in April 2003, ACE inhibitor cough in March 2003, mycoplasma bronchitis in December 2005, bronchitis with reactive airway disease in January 2006, and the recent CT scan showing mild to moderate emphysema. He stated that there was no evidence of any asbestos in the lungs despite extensive testing. The VA examiner was asked to address whether the Veteran's diagnosed lung condition was related to lung complaints and findings in service. The VA examiner indicated that he Veteran did not meet the criteria for a specific diagnosis of chronic bronchitis in service. He referenced a reliable medical web source, noting that a clinical diagnosis of chronic bronchitis was characterized by a cough productive of sputum for over three months duration during two consecutive years and airflow obstruction. He stated, therefore, that in 1974 when the Veteran had a cough of one month duration, he would not meet any criteria for a specific diagnosis of chronic bronchitis. The VA examiner stated that the Veteran was a long term smoker. He stopped smoking many years ago and now appeared to have mild to moderate emphysema. Letters from the Veteran's private physician were reviewed. In one letter, the physician stated that he believed that the Veteran's current lung condition is secondary to military service. However, the VA examiner noted that there were no reasons or bases to support that statement. The VA examiner stated that there was no medical information available to him that would support that specific comment. The February 2008 VA examiner opined that the Veteran's currently diagnosed obstructive respiratory disease, emphysema, and probable COPD were not related to his in- service findings of bronchitis and pneumonia, or to in- service asbestos exposure. He found that the Veteran did not have an asbestos-related disease, and found that isolated pleural findings on a CT scan were not indicative of asbestos exposure. He further noted that the Veteran's current lung disability was not related to fume exposure or ionizing radiation in service. According to Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. In this case, the Board finds that the VA's examiner's opinion is more probative than the opinion rendered by Dr. R.K.R. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). In that regard, the VA examiner reviewed and discussed pertinent findings in service treatment records and in post- service medical records, and conducted all necessary diagnostic testing including a clinical examination, x-ray, CT scan, and pulmonary function testing in order to identify the Veteran's current lung diagnoses, and to determine if any such diagnoses were related to the Veteran's in-service asbestos exposure, or in-service lung complaints. Based on the diagnostic testing and a review of the claims file, the VA examiner concluded that the Veteran did not have an asbestos related disease, and concluded that his current lung complaints were not related to findings in service. A complete statement of reasons and bases was provided in the VA examiner's opinion. In contrast, Dr. R.K.R. stated simply that it is as likely as not that the Veteran's lung condition is service-related in a January 2008 opinion, without identifying the specific diagnosis he was relating to the Veteran's period of service, and without providing reasons or bases for the opinion. Accordingly, Dr, R.K.R.'s opinion is insufficient evidence of a nexus or relationship between a current lung disability and service. A later January 2008 letter from Dr. R.K.R. indicates that he Veteran's chest x- rays were normal, but pulmonary function testing revealed obstructive respiratory disease. The Board notes that Dr. R.K.R. did not indicate in his second letter that the Veteran's obstructive respiratory disease was related to any specific findings in service, or to asbestos exposure in service. Therefore, this letter similarly is insufficient evidence of a nexus or relationship between a current lung disability and service. Based in the February 2008 VA opinion, the Board finds that the Veteran's current lung disability is not related to service, and is not related to in-service asbestos exposure. In reaching the above conclusions, the Board has also not overlooked the Veteran's and his representative's written statements of record, and the claimant's statements to the VA examiner. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, while lay witnesses are competent to describe experiences and symptoms that result therefrom, because laypersons are not trained in the field of medicine, they are not competent to provide opinions relating to the diagnosis or etiology of diseases or disabilities. Id; see also Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, the Board will give more credence to the medical evidence of record than these lay assertions. 2. Hepatitis Service treatment records show that the Veteran was diagnosed with viral hepatitis in service. The Veteran admitted to the Naval Hospital in June 1973. He was initially seen at the dispensary with the onset of malaise, nausea, vomiting, fever, and jaundice. He had no known hepatitis contacts and denied drug use. The Veteran was diagnosed with viral hepatitis. He was discharged in July 1973, and was found fit for duty. Service treatment records do not reflect a diagnosis of hepatitis C. The medical evidence of record does not reflect a current diagnosis hepatitis C. The Veteran stated in a January 2008 report of contact that he had never been diagnosed with hepatitis C. The Board has also considered whether service connection is warranted for viral hepatitis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). However, the Veteran does not have a current diagnosis of viral hepatitis and is not shown to have residuals thereof, despite findings of hepatitis in service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the instant case, there is no current medical evidence of hepatitis C or viral hepatitis. Therefore, the Board finds that service connection for hepatitis is not warranted. C. Conclusion Although the Veteran does have diagnosed obstructive respiratory disease, likely COPD, and emphysema, competent and credible medical evidence shows that such disabilities were not likely incurred or aggravated in service, and no nexus has been established between the Veteran's current disability and his military service. The Veteran is not shown to have a currently diagnosed asbestos-related lung disease. Therefore, the Board concludes the preponderance of the evidence is against finding that the Veteran has a lung disability etiologically related to active service, or to asbestos exposure in service. Service treatment records reflect a diagnosis of viral hepatitis in service; however, the Veteran does have a current diagnosis of hepatitis C and there is no current medical evidence of viral hepatitis or residuals thereof. Therefore, the Board concludes the preponderance of the evidence is against finding that the Veteran has hepatitis etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for lung disorder, to include as due to asbestos exposure is denied. Service connection for hepatitis, claimed as hepatitis C, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs