Citation Nr: 1101032 Decision Date: 01/10/11 Archive Date: 01/20/11 DOCKET NO. 06-30 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disability (COPD), claimed as due to radiation exposure and asbestos exposure. 2. Entitlement to service connection for sarcoidosis, claimed as due to radiation exposure and asbestos exposure. 3. Entitlement to service connection for diabetes mellitus, claimed as due to radiation exposure and asbestos exposure. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from September 1971 to September 1973. He also had active duty for training purposes (ACDUTRA) from August 15, 1971 to August 28, 1971 prior to active service, and additional ADUTRA in June 1974 and November 1974 after discharge from active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2005 rating decision of the Boston, Massachusetts, regional office (RO) of the Department of Veterans Affairs (VA). Service connection for sarcoidosis and obstructive lung disease, claimed as secondary to radiation exposure and asbestos exposure, was initially denied in an August 1994 VA rating decision. The Veteran did not file a timely appeal of that decision. The Veteran filed to reopen his claim for entitlement to service connection for a respiratory/pulmonary condition in March 2005. At that time, the Veteran also filed initial claims of entitlement to service connection for diabetes mellitus and unspecified "residuals of radiation exposure". These claims were denied in the above-referenced September 2005 rating decision, which the Veteran appealed. The Veteran presented personal testimony at a Travel Board hearing before a Veterans Law Judge which was conducted at the Boston RO in October 2006. A transcript of the hearing is associated with the Veteran's claims folder. At this juncture, the Board notes that the Veterans Law Judge who conducted the October 2006 hearing has retired from the Board. The Veteran declined his right to an additional hearing in April 2010. In June 2007, the Board reopened the respiratory/pulmonary disorder claim based on a change in the law as to how claims involving allegations of asbestos exposure are handled. See Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994), cert. denied, 513 U.S. 810 (1994) [when there is an intervening change in the law or regulation creating a new basis for entitlement to benefits, a claim under the liberalizing regulation is a claim separate and distinct from the claim previously and finally denied and may be reviewed on a de novo basis]. Both claims were remanded for additional evidentiary and procedural development. The requested development was accomplished as requested for both issues on appeal, and in December 2008 the Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) which continued to deny both claims. The case was subsequently returned to the Board. In March 2009, the Board again remanded the Veteran's claim for additional development. The Veteran was to be provided with VA examinations in order to obtain etiological opinions regarding the relationship between the Veteran's claimed disability and active service, to include exposure to asbestos and radiation during service. This development has been completed, and the appeal has been returned to the Board for further appellate review. The Board observes that the Veteran's claim has at times been characterized as service connection for sarcoidosis and as service connection for a respiratory disability, but has always been treated as a single disability. However, the Board notes that while the medical evidence will show that the Veteran's sarcoidosis involves his lungs, it is a systemic disease that affects more than just the pulmonary system. At the same time, the Veteran has a diagnosis of obstructive lung disease which the evidence will show has a multi-faceted etiology. As only one of these disabilities is ready for appellate consideration, and as that consideration will be favorable to the Veteran, the Board has determined that it is in the interest of the Veteran for the claims for service connection for sarcoidosis and COPD to be considered separately. This is reflected on the first page of this decision. 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). The issues of service connection for sarcoidosis and diabetes mellitus will be addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran was exposed to asbestos during active service. 2. The Veteran has a current diagnosis of COPD. 3. Medical opinion states that the asbestos exposure during service contributed to the development of the Veteran's COPD. CONCLUSION OF LAW The Veteran's COPD was incurred due to active service. 38 U.S.C.A. §§ 101(24), 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. The Board finds that the duty to notify and duty to assist the Veteran has been met for the issue of entitlement to service connection for COPD secondary to asbestos exposure. Furthermore, given the favorable nature of this decision, any failures in the duty to notify or duty to assist is harmless error, as it has failed to result in any prejudice to the Veteran. Service Connection The Veteran contends that he has developed COPD at least in part as a result of exposure to asbestos during active service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training or injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. § 101(24). Establishing service connection generally 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post- service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494-95 (lay person may provide eyewitness account of medical symptoms). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board notes that there is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the Secretary of Veterans Affairs (Secretary) promulgated any specific regulations. However, in 1988 VA issued a circular on asbestos- related diseases which provided 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 have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (hereinafter "M21-1"). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 were rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles 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. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. The evidence of record shows that the Veteran has current diagnoses of COPD. During his hearing, the Veteran testified that while aboard the USS Compton "repair personnel were taking off asbestos packing from pipes directly over my rack. I was exposed to asbestos which was in my bunk and pillow as well as the contained air in my bunk space." He also asserts that while aboard the USS Holland he "was assigned to the after mess deck where I was exposed to asbestos on a daily basis." See the Veteran's August 10, 2007 Statement in Support of Claim; see also the October 2006 hearing transcript, page 17. A review of the Veteran's service personnel records confirms that he was stationed aboard the USS Compton during Active Duty for Training (ACDUTRA) in August 1971, and that he was aboard the USS Holland for most of the two years of active duty that began in September 1971. Furthermore, the Board finds that the Veteran's testimony pertaining to the removal of the asbestos insulation from the pipes directly above his sleeping quarters is credible. Information confirming the presence of asbestos aboard either the USS Compton or the USS Holland has not been obtained through official channels. However, an informal internet search confirms that asbestos was commonly used in the construction of World War II era destroyers, including the USS Compton. It also shows that the USS Compton was used as a training ship during the period on which the Veteran served his two weeks of ACDUTRA, and that standard practice was for the trainees to spend a two week cruise in order to acclimate them to shipboard life. In regards to the USS Holland, there is less information as to the presence of asbestos. However, the shipyard where the USS Holland was constructed, Ingalls in Pascagoula, Mississippi, is noted to have commonly used asbestos during this period. Therefore, based on the Veteran's testimony and the information pertaining to asbestos, the Board concedes that the Veteran was exposed to asbestos during service. The Board notes that this constitutes an "injury" for the purposes of service connection in the context of ACDUTRA. Therefore, the evidence establishes that the Veteran has a current disability, and that he sustained an in-service injury by way of asbestos exposure. However, exposure to asbestos in and of itself does not constitute a disability. There must still be evidence of a relationship between the Veteran's asbestos exposure and the current diagnosis of COPD in order for service connection to be established. The report and opinion of the June 2009 VA pulmonary examination provides the final element of evidence of a nexus required for service connection. This examiner notes that the Veteran gave a plausible history of asbestos exposure. Although there were no pleural plaques on computed tomography (CT) scan, the examiner noted that this was not the "sine qua non" of asbestos exposure, obstructive lung disease related to asbestos exposure, or asbestosis. In this case, the examiner diagnosed the Veteran as having obstructive lung disease. The examiner stated that the obstruction was likely multifactorial, and was due to sarcoidosis, the Veteran's history of smoking, and even the asbestos exposure. He clarified by adding that it was at least as likely as not that asbestos exposure contributed, albeit in some small way, to obstructive lung disease in the Veteran. In an addendum, the examiner further stated that inhalation of asbestos can lead to obstructive lung disease. The most likely cause of obstructive lung disease in the Veteran was cigarette smoking, and sarcoidosis could also contribute to obstructive lung disease. However, asbestos at least as likely as not contributed to the development of the Veteran's chronic obstructive lung disease. The June 2009 VA examiner found that the primary cause of the Veteran's COPD was due to his sarcoidosis and his history of smoking. However, he further opined that asbestos contributed to the development of the COPD. The law does not require that an injury during service be the only or even the primary cause of a disability. Therefore, as there is evidence that the Veteran sustained injury due to asbestos inhalation during service, evidence of a current diagnosis of COPD, and evidence of a nexus between the COPD and the asbestos exposure, the Board concludes that entitlement to service connection is established. ORDER Entitlement to service connection for COPD is granted, subject to the laws and regulations governing the award of monetary benefits. (CONTINUED ON NEXT PAGE) REMAND The Veteran contends that he has developed sarcoidosis as a result of active service. He believes that this disability has developed as a result of exposure to asbestos or radiation. If sarcoidosis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of sarcoidosis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To this point, the adjudication of the Veteran's claim has focused on his contentions regarding asbestos and radiation. However, the February 2009 Informal Hearing Presentation contains an argument that the early stages of sarcoidosis manifested during active service. This argument refers to medical information of record that notes sarcoidosis symptoms include a persistent cough, shortness of breath, a vague feeling of discomfort or fatigue, fever, weight loss, small red bumps on the face, arms, or buttocks, watery eyes, and arthritis symptoms. The Veteran's representative then noted that the Veteran complained of many of these symptoms during active service, including a rash on the upper thighs in April 1972, general malaise in August 1972 and April 1973, a cough on three different occasions, flu symptoms with fever in February 1973, pain and numbness of the facial area in February 1973, and fever again in January 1972. The Board's review of these records confirms these incidents of treatment. The post service medical records have conflicting information as to when sarcoidosis was initially diagnosed. The Veteran told the June 2009 examiner that he was diagnosed with sarcoidosis in 1974. However, at an April 1993 examination, the Veteran gave a history of dyspnea on exertion and shortness of breath while playing baseball in 1976. Later that year he was in Scotland, when he experienced additional symptoms and was hospitalized. It was during these hospitalizations that he was first diagnosed with sarcoidosis. VA treatment records dated subsequent to April 1993 repeatedly state that sarcoidosis was first diagnosed in Scotland, and the timeline given would place this diagnosis in the 1970s or 1980s. The claims folder does not contain the hospital records from Scotland, and there is no indication that an attempt has been made to obtain these records. The March 2009 Board remand requested that the Veteran be provided a VA examination, and that the examiner opine whether sarcoidosis was related to any incident of the Veteran's military service, to include asbestos exposure. In response, the June 2009 examiner opined that "The cause of sarcoidosis has not been elucidated." However, the examiner did not offer an opinion as to whether or not the sarcoidosis was initially manifested during service or during the one year presumptive period following discharge from service. Given the symptoms recorded in service that may be a possible indication of sarcoidosis, and the proximity of the initial diagnosis of this disability to both the Veteran's discharge and the presumptive period following discharge, the Board finds that such an opinion must be obtained before adjudication of the Veteran's claim. Regarding the Veteran's claim for service connection for diabetes mellitus, the record contains repeated references to steroid induced diabetes mellitus, and a December 2009 examiner opined that the Veteran's diabetes mellitus developed secondary to the steroids used to treat his sarcoidosis. Therefore, the claim for service connection for diabetes mellitus is inextricably intertwined with the claim for service connection for sarcoidosis and must be adjudicated together. Consequently, this claim will be held in abeyance until the claim for sarcoidosis is ready for adjudication. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Contact the Veteran and request that he identify all treatment sources relating to the initial diagnosis of his sarcoidosis, including those in Scotland. After obtaining any necessary permission from the Veteran, obtain these records and place them in the claims folder. If they are unavailable, the Veteran should be notified and provided an opportunity to obtain these records on his own. 2. After the completion of the development requested above, the claims folder should be returned to the VA examiner who conducted the June 2009 pulmonary examination. The examiner's attention is directed to the Veteran's service treatment records, as well as any additional records obtained that pertain to the initial diagnosis of the Veteran's sarcoidosis. After the review of these records, the examiner should attempt to express the following opinions: 1) Is it as likely as not that any of the Veteran's complaints or symptoms noted during active service represent the initial manifestation of sarcoidosis? 2) Is it as likely as not that sarcoidosis initially manifested either during active duty or the one year period following discharge from active duty? If the examiner who conducted the June 2009 examination is no longer available, the claims folder should be forwarded to a physician qualified to provide the requested opinions. An additional examination should only be scheduled if these physicians deem it necessary. The reasons and bases for all opinions should be provided. 3. After the development requested above has been completed to the extent possible, review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action until otherwise notified. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs