Citation Nr: 1042638 Decision Date: 11/12/10 Archive Date: 11/24/10 DOCKET NO. 07-27 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a pulmonary disorder, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran served in active duty from November 1952 to October 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decision issued in November 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This appeal was previously remanded in May 2009 and now returns for further appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The Veteran was exposed to asbestos during service; did not have continuous symptoms of asbestosis after service separation; does not have an asbestos-related pulmonary disorder; and the currently diagnosed pulmonary disability is not related to any in-service injury or disease, including in-service asbestos exposure. CONCLUSION OF LAW The criteria for service connection for a pulmonary disorder, to include as due to asbestos exposure, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.102, 3.303, (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2010). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was recently removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the present appeal, because the service connection claim is being denied, and no effective date or rating percentage will be assigned, the Board finds that there can be no possibility of any prejudice to the Veteran under the holding in Dingess, supra. In May 2009, the Board remanded the issue on appeal to the Appeals Management Center (AMC) for further development. The record indicates that the AMC complied with the Board's requests, providing the Veteran with multiple VA examinations in June and July 2010 and obtaining outstanding private medical records from Dr. E. W. As such, the Board finds that the AMC complied with the May 2009 Remand directives and will proceed to render a decision on the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's/AMC's] compliance" with the terms of its remand orders). In October 2006 and June 2009 letters, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence that VA will seek to provide, and what information and evidence the Veteran is expected to provide. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post- service VA and private treatment records, VA examinations, and the Veteran's statements. In view of the foregoing, the Board finds that VA has fulfilled its duties to notify and assist the Veteran in the claim under consideration. Service Connection for a Pulmonary Disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 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). In September 2006, the Veteran filed the present claim seeking service connection for a pulmonary disorder. He alleges that he was exposed to asbestos while working aboard the USS Shangri La, noting that he worked in the engine room which was full of asbestos and that he was exposed to asbestos while removing asbestos insulation from pipes. On the response to a July 2009 VA Asbestos Questionnaire, the Veteran reported that the only time that he was exposed to asbestos was while aboard the USS Shangri La. There is no specific statutory guidance with regard to asbestos related claims, nor has the VA 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). VA satisfied the above requirements by obtaining the Veteran's service personnel files and providing the Veteran an asbestos questionnaire. 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. It should also be noted that for many asbestos related diseases, the latency period varies from ten to forty-five or more years between first exposure and development of disease. Id. at IV.ii.2.C.9.d. The evidence demonstrates that the Veteran was likely exposed to asbestos during active duty service. Hickson v. West, 12 Vet. App. 247, 253 (holding that service connection requires medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury and medical evidence of a nexus between the claimed in-service disease or injury and the current disability). In various lay statements, the Veteran reported that he was exposed to asbestos during service; specifically, that he was exposed to asbestos while removing asbestos insulation from pipes. Although the Veteran's service treatment records are negative for asbestos-related disease or any mention of asbestos exposure, the Veteran's service personnel records reflect that the Veteran's military duties included service as an engineer, which likely would have required him to perform activities exposing him to asbestos during service, including insulation work and use of pipe products. See VA Adjudication Procedure Manual, M21-1, Part VI, para. 7.21. The Veteran is competent to provide evidence about matters of which he has personal knowledge; for example, he is competent to report that he experienced an event during service or that he had certain symptoms. See Falzone v. Brown, 8 Vet. App. 398, 405-406 (1995); Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the Veteran is competent to testify that he was exposed to asbestos during service. The Board also considers the Veteran's statements to be credible, as they are consistent with his personnel records which reflect that his military occupational specialty would likely have required some exposure to asbestos during service. See VA Adjudication Procedure Manual, M21-1, Part VI, para. 7.21. Thus, the Board finds that the Veteran's statements are credible and sufficient to establish that he was exposed to asbestos during active duty service. Even finding the Veteran had in-service exposure to asbestos, competent evidence is required for a determination that the Veteran has an asbestos-related disability, and that asbestosis or another asbestos-related disorder is etiologically related to asbestos exposure in service. After a review of the evidence, the Board finds that the record does not indicate that the Veteran has an asbestos-related respiratory disability or that his chronic obstructive pulmonary disease is due to any in- service injury or disease, including in-service asbestos exposure. According to the Veteran's in-service treatment records, there is no evidence that the Veteran complained of or was treated for a pulmonary disorder or symptoms of pulmonary disorder. The Veteran's October 1956 separation examination also does not reflect a history, complaints, or findings of pulmonary disorder. The Veteran is competent to testify as to his observable symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the Veteran is competent to relate symptoms of a lung disorder or breathing disorder since service, the Veteran has not even asserted continuity of symptomatology since service separation. In the context of the October 1956 examination upon separation from service and negative post-service treatment records, the Board finds as a fact that there were not continuous symptoms of a lung or breathing disorder since service separation. As the Veteran is contending that his current pulmonary disorder is due to exposure to asbestos in service, and is not contending that he has had symptoms of a pulmonary disorder since separating from service, there is no basis for finding continuity of symptomatology of symptoms after service. For this reason, the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b) are not applicable in this case. On the question of nexus between currently diagnosed pulmonary disorder and service, including asbestos exposure in service, the evidence includes private treatment records from January 2001 to June 2009 that indicate the Veteran has a current pulmonary disorder; however, these records do not reflect an opinion on the etiology of that disorder. The private treatment records diagnose the Veteran with obstructive sleep apnea and coronary artery disease (CAD). A September 2007 VA Pulmonary Function Test (PFT) record reports that the Veteran was diagnosed with a "possible chest restriction." The VA examiner noted that, according to the PFT, there was no evidence of an obstructive pulmonary defect. In an April 2008 private PFT, the examiner, Dr. E. W., diagnosed the Veteran as having a "moderate restrictive defect" but also noted "no obstruction." In a June 2010 VA respiratory examination, the examiner diagnosed a moderately severe, restrictive lung disease. In a July 2010 VA respiratory examination, the examiner diagnosed a restrictive lung disease and obstructive sleep apnea. There is no competent medical evidence of record to indicate that the Veteran's current pulmonary disorder is related to service, and the competent medical evidence that is of record tends to weigh against a finding of relationship between currently diagnosed pulmonary disorders and service, including in-service asbestos exposure. In a June 2010 VA respiratory examination and a July 2010 addendum, the VA examiner pertinently opined, after a thorough examination of the Veteran, including a Computed Tomography (CT) scan, and upon review of the history in the claims file, that "the current diagnoses of restrictive lung disease and obstructive sleep apnea are less likely than not related to asbestos in the service." The VA examiner stated that "there is documentation of post-service heating and air conditioning work as a civilian" and that "a literature search shows that cardiac disease which is found in [the Veteran's] records is usually a comorbid condition contributing to his shortness of breath." The VA examiner also stated "[a]s previously noted in the respiratory examination, this shows that [the Veteran] is receiving Advair and Symbicort with a CT of the thorax dated [June 18, 2010] showing a few small areas of scarring, but it is equivocal regarding asbestosis." See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein) There is no competent evidence of record contrary to the medical opinion of the July 2010 VA examiner, nor is there any medical evidence indicating that the Veteran's current pulmonary disorder is due to any other injury or disability. Private treatment records from January 2001 to June 2009 confirm a current pulmonary disorder; however, they are silent as to whether the Veteran's current pulmonary disorder is related to his exposure to asbestos while in service. In a May 2008 follow-up appointment, Dr. E. W. found that the Veteran's weakness and fatigue were likely "due to cardiac problems." The Veteran has had ample opportunity to secure medical evidence in his favor and submit the same to VA. He has not done so. See 38 U.S.C.A. § 5107(a) (West 2002) (it is a claimant's responsibility to support a claim for VA benefits). The Board acknowledges the Veteran's lay statements indicating his belief that his current pulmonary disorder is related to exposure to asbestos in service. See, e.g., June 2010 VA Examiner's Report. To the extent that the Veteran contends that his currently diagnosed pulmonary disability is related to his active duty service, he is not competent to render such a medical nexus opinion regarding the more complex disabilities of COPD and asbestosis, disabilities that require specific clinical testing to even diagnose. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). This is not a case in which the Veteran's lay beliefs alone can serve to establish an association between his pulmonary disorder and his military service. Accordingly, the statements by the Veteran purporting to establish a medical link between his current disabilities and his military service are not competent on the complex medical question of nexus in this case. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining 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). On the question of nexus of currently diagnosed respiratory disability, the Board finds that the weight of the competent evidence demonstrates that the currently diagnosed pulmonary disorder is not related to any in-service injury or disease, including to asbestos exposure in service. The Board places more probative weight on and the opinion of the July 2010 VA examiner, who stated that "the current diagnoses of restrictive lung disease and obstructive sleep apnea are less likely than not related to asbestos in the service." In summary, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a pulmonary disorder. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Accordingly, the benefits sought on appeal are denied. ORDER Service connection for a pulmonary disorder, to include as due to asbestos exposure, is denied. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs