Citation Nr: 1023614 Decision Date: 06/24/10 Archive Date: 07/01/10 DOCKET NO. 07-15 653 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to service connection for a lung disability, to include emphysema and sarcoidosis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 RO decision, which denied a claim for service connection for emphysema, a lung condition, and sarcoidosis due to exposure to lead paint and dust. This issue was remanded by the Board for further development in May 2008. In March 2008, a video conference hearing was held before the undersigned Acting Veterans Law Judge at the Newark, New Jersey RO. A transcript of that proceeding has been associated with the claims folder. The record reflects that the Veteran submitted additional evidence to the Board in conjunction with this case accompanied by waivers of initial review of this evidence by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304. FINDING OF FACT The Veteran is not shown by the most probative medical evidence of record to have a lung disability, to include emphysema and sarcoidosis that is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A lung disability, to include emphysema and sarcoidosis was not incurred in or aggravated by active service, nor may a lung disability, to include emphysema and sarcoidosis be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in October 2006 and July 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, the October 2006 letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA and private medical records are in the file. The Board acknowledges that the Veteran submitted a statement in March 2009 indicating that he would be submitting a letter from a Dr. E.M. and would like additional time to obtain this information. He also submitted a separate statement in March 2009 indicating that he would be submitting a letter from Dr. H.V., an environmental doctor. He indicated that he hoped to submit this evidence by early April 2009. As this issue has been previously remanded specifically in order to obtain relevant private treatment records, and the Veteran has had well over a year since he submitted the March 2009 statement requesting additional time, the Board finds that the Veteran has had ample opportunity to submit all relevant records. As such, the Board finds that the record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2009). The Veteran was provided a VA examination most recently in May 2007, which addressed his claim for service connection for a lung disability, to include emphysema and sarcoidosis. The examiner reviewed the claims files, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. The Board finds this examination report and opinion to be thorough and complete. Therefore, the Board finds this examination report and opinion are sufficient upon which to base a decision with regard to this claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2009). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2009). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include sarcoidosis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). The Veteran is seeking entitlement to service connection for a lung disability, to include emphysema and sarcoidosis. Specifically, he asserted in a July 2006 statement that he was exposed to chemicals and dust when he was stripping floors aboard a ship and on base while cleaning compartments during active duty. He also indicated that he was subject to the smell of fresh lead paint aboard the ship. His squadron would sleep 80 people to a compartment, five racks high, with pipes below and above their heads. He remembered seeing fine powdered dust from the pipes if he bumped his head or foot on them. In a February 2009 statement, the Veteran asserted that he was directly exposed to toxic chemicals, dust, lead, paint, petroleum solvents, bacteria, asbestos, and toxic fumes while aboard ships and on base during active duty. As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing 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 since have been included in VA Adjudication Procedure Manual, M21-1 MR, part VI, Subpart ii, Chapter 2, Section C (December 13, 2005). 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). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (e). A review of the Veteran's service treatment records reflects no in-service complaints, treatment, or diagnoses of a lung disability, to include emphysema and sarcoidosis. The Board notes that the Veteran underwent a VA examination in May 2007. The examiner reviewed the claims file and noted that the Veteran served in the Navy from 1967 to 1969. The Veteran smoked 2 packs of cigarettes per day for 30 years. He quit in February 1998. The Veteran was diagnosed with emphysema and sarcoidosis in 1998. In March 1998, he underwent right video-assisted thoracoscopy with resection of the nodule of the right upper lobe and left video-assisted thoracoscopy with resection of the nodule of the left upper lobe. The Veteran complains of shortness of breath since he was discharged from the military. The examiner concluded by diagnosing the Veteran with emphysema and sarcoidosis. He noted that emphysema is not due to lead paint and dust exposure in service. Sarcoidosis is not due to lead paint and dust exposure in service. Emphysema is due to smoking, which the Veteran reported having done in the past. The cause of sarcoidosis is idiopathic. There is no known cause. It is a granulomatous disease. The Board notes that the claims file also contains private medical records documenting treatment for emphysema and sarcoidosis. Specifically, in a February 2009 private medical record from Bergen Medical Alliance, it was noted that the Veteran's sarcoidosis could have been exacerbated by his previous smoking and fume exposure. This physician went on to state, however, that he is not sure that he can ascribe direct causality of his sarcoidosis solely to his previous environmental exposure. It is reasonable to presume that his environmental exposure could have exacerbated any underlying pulmonary disease. With regard to establishing service connection on a presumptive basis under 38 U.S.C.A. § 1112, the Board notes that there is no medical evidence indicating that the Veteran had sarcoidosis to a compensable degree within one year of discharge from active duty. Therefore, service connection for sarcoidosis cannot be granted on a presumptive basis under 38 U.S.C.A. § 1112. With regard to establishing service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2009). Currently, there is no medical evidence of record indicating that the Veteran had a lung disability, to include emphysema and sarcoidosis in service. The Board has considered the aforementioned February 2009 private medical opinion stating that it is reasonable to presume that his environmental exposure could have exacerbated any underlying pulmonary disease. However, the Board does not find this opinion to be probative with regard to this matter. Specifically, the Board finds the language used by the physician to be speculative. The Court has held that a medical link that is only speculative, general or inconclusive in nature, cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 462 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Additionally, there is no evidence that this physician reviewed the Veteran's entire claims file, and the opinion appears to be based on the presumption that the Veteran had an underlying pulmonary disease that could have been exacerbated by his service. There is no evidence reflecting that the Veteran had an underlying pulmonary disease in service. With regard to the May 2007 VA opinion, the examiner reviewed the claims file, examined the Veteran, and noted the Veteran's assertions before rendering a definitive opinion on the matter. As such, the Board finds this opinion to be probative with regard to this matter. Therefore, as the most probative medical opinion of record specifically indicated that the Veteran's emphysema and sarcoidosis are not due to lead paint and dust exposure in service, the Veteran's claim must fail on a direct basis. See Shedden, supra. The Board notes that the Veteran has also submitted medical literature regarding emphysema and sarcoidosis. While the Board has considered this evidence, the Board finds that such generic texts, which do not address the facts in this particular Veteran's own case, and with a sufficient degree of medical certainty, do not amount to competent medical evidence of causality. Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). As noted, the VA examiner examined the Veteran, reviewed the claims file, and took into account the specific circumstances of the Veteran's case. As such, the Board finds his conclusion to be much more probative in this case than the generic literature that was submitted. The Board would also like to note that, to the extent that any of the Veteran's disabilities may be related to his extensive history of tobacco use, service connection for disability on the basis that it resulted from disease or injury attributable to the use of tobacco products during active service is prohibited by law. 38 U.S.C.A § 1103(a) (West 2002); 38 C.F.R. § 3.300(b) (2009). The Board acknowledges the Veteran's contentions that he has a lung disability, to include emphysema and sarcoidosis as a result of his active duty. However, the most probative medical evidence of record does not support this contention. The Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be competent to offer an opinion on complex medical questions, such as a possible relationship between chemical exposure and a lung disability, to include emphysema and sarcoidosis. See Jandreau, 492 F.3d at 1377 (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As such, the Board finds the May 2007 VA opinion to be more probative than the Veteran's lay assertions. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a lung disability, to include emphysema and sarcoidosis must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a lung disability, to include emphysema and sarcoidosis is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs