Citation Nr: 1109591 Decision Date: 03/10/11 Archive Date: 03/24/11 DOCKET NO. 08-12 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as bronchitis and emphysema, to include as due to asbestos exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1954 to January 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO). In July 2009, the Veteran was provided a hearing before a Veterans Law Judge sitting at the RO in Lincoln, Nebraska. In October 2009, the Veteran was provided a videoconference hearing before another Veterans Law Judge. The two Veterans Law Judges that conducted the hearings are included in the panel of judges rendering the determination in this case. Transcripts of the testimony provided at each hearing have been associated with the claims file. Additionally, evidence has been associated with the Veteran's claims folder accompanied by waivers of local consideration. These waivers are contained in the Veteran's claims folder. See 38 C.F.R. §§ 19.9, 20.1304(c) (2010). In April and November 2010, the Board remanded the Veteran's claim. The Appeals Management Center (AMC) continued the previous denial of the claim in August 2010 and January 2011 supplemental statements of the case (SSOC's). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. FINDING OF FACT The competent and probative evidence of record does not support a finding that a relationship exists between the Veteran's respiratory disorder, to include bronchitis, asthma, emphysema, and chronic obstructive pulmonary disease (COPD) and the Veteran's military service or any incident thereof. CONCLUSION OF LAW A respiratory disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in April and November 2010, the Board remanded this claim and ordered the agency of original jurisdiction (AOJ) to afford the Veteran the opportunity to identify all VA and non-VA medical providers who treated him for any respiratory disorder and schedule the Veteran for a VA examination for his respiratory disorder and associate a report of the examination with the Veteran's claims folder. The Veteran's claim was then to be readjudicated. Pursuant to the Board's remand instructions, the AMC provided notice to the Veteran via an April 2010 letter to submit evidence in support of his respiratory disorder claim, to include providers who treated him for his disorder. Additionally, the Veteran was provided a VA examination with respect to his respiratory disorder. A report of the examination has been associated with the Veteran's claims folder. The Veteran's claim was readjudicated via August 2010 and January 2011 SSOC's. Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice, and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2010). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the effective-date element of the claim, by a letter mailed in August 2007, prior to the initial adjudication of his claim. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes the Veteran's statements, service treatment records, as well as VA and private treatment records. The Veteran was afforded a VA examination in December 2010. The examination report reflects that the examiner interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2010); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board notes that the April and November 2010 Board remands directed the RO to obtain reports generated by a "B-reader" radiologist in connection with the Veteran's VA respiratory examination. However, the December 2010 VA examiner, who is a certified pulmonologist but not a B-reader radiologist, reported that a B-reader radiologist was not required to review the Veteran's chest CT scan film. His rationale was based on his review of the CT scan film, which he indicated showed no pleural plaques and no evidence of fibrosis. He further noted that "almost all patients with significant exposure to asbestos develop pleural plaques over time and fibrosis is a histologic feature of asbestosis." Based upon the VA examiner's rationale, the Board finds that remanding the Veteran's claim for a fourth time in order to obtain a B-reader radiologist's report is not required, and that the December 2010 VA examination is adequate for evaluation of the Veteran's claim. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2010). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative. He was afforded personal hearings in April and October 2009. Accordingly, the Board will proceed to a decision. Service connection for a Respiratory Disorder Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). In order to establish service connection for the claimed disorder, there must be (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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA 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 have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. 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 these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, 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, military equipment, etc. 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. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2010). With respect to Hickson element (1), the Veteran has been diagnosed with COPD, asthma, emphysema, and bronchitis. See, e.g., a VA examination report dated in May 2008. Hickson element (1) has therefore been demonstrated. The Board adds that the Veteran has not been diagnosed as having asbestosis. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Veteran essentially contends that while serving on board the U.S.S. Hornet and U.S.S Wasp, he was exposed to asbestos-wrapped pipes; was required to chip paint off of "everything"; wore asbestos gloves to handle the expended shells from a 5-inch gun; slept beneath pipes wrapped in asbestos; worked in an armory; and saw asbestos dust in the air. The Veteran also asserts that his current respiratory disorder is related to inservice exposure to chemicals, including aviation fuel and cleaning products. His DD Form 214 confirms that he served as a seaman aboard the U.S.S. Wasp, and his personnel records also document service on board the U.S.S. Hornet. Given the nature of the Veteran's duties aboard the U.S.S. Hornet and the U.S.S. Wasp, the Board recognizes that it is conceivable that the Veteran worked in close proximity to asbestos while serving aboard a naval vessel. The Veteran's service treatment records, however, show no complaints, treatments or diagnoses of any respiratory problems. Notably, his entrance and separation examination reports reflect no respiratory abnormalities. The chest x-ray taken at the Veteran's discharge from service was normal. Turning to crucial Hickson element (3), medical nexus, the competent and probative evidence demonstrates that the Veteran's currently diagnosed respiratory disorders are unrelated to his military service, to include asbestos exposure. The only competent medical opinion of record concerning the issue of medical nexus is the report of the December 2010 VA examiner. Specifically, the VA examiner concluded, "[i]t is less likely than not that the [V]eteran's currently diagnosed lung disorders were incurred during or directly related to the [V]eteran's active military service" and "the [V]eteran's current lung disorders are less likely than not due to exposure to asbestos or chemicals during his active duty service." The examiner's rationale for his conclusion was based on his review of the Veteran's claims folder, which he indicated did not show substantial evidence clinically that the Veteran had significant exposure to asbestos. Moreover, the Veteran was unable to name any specific chemicals to which he was exposed as a result of his military duties. The examiner further noted that the Veteran has moderate emphysema, and chronic bronchitis based on pulmonary function testing and moderate to severe emphysema based on a chest CT scan, which are more likely than not related to his 40 year history smoking a pack and a half or day which the examiner noted was the equivalent of 50 to 60 "pack years of smoking." The December 2010 VA examination report appears to have been based upon thorough review of the record (the examiner noted that he spend two hours reviewing the Veteran's claims file and service records), thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Additionally, the December 2010 VA examiner's opinion appears to be consistent with the Veteran's medical history, which is absent any symptomatology of a respiratory disorder for several years after service. The Veteran has not submitted any competent medical opinion to contradict the VA examiner's opinion. As was explained in the VCAA section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is the claimant's responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay 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 professional." 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"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including difficulty breathing and coughing), has presented no clinical evidence of a nexus between his respiratory disorders and his military service, to include asbestos exposure. The Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to a particular disability. Furthermore, the Veteran is not competent to opine on matters such as the etiology of his current respiratory disorders. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a medical nexus between his respiratory disorders and his military service, to include asbestos exposure, to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2010) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of a medical nexus. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. The Board notes that the Veteran appears to be contending that he has had a respiratory disorder continually since service. However, the first postservice evidence of complaint of, or treatment for, a respiratory disorder is dated in April 1996, when the Veteran sought treatment for bronchitis. See a private treatment report from V.O., M.D., dated in April 1996. This was more than thirty-five years after the Veteran left service in January 1959. Furthermore, the Veteran's report at that time that his symptoms had manifested in a productive cough for the past week contradicts any current assertion of a continuity of symptoms since service. While the Veteran is competent to report his respiratory symptomatology over the years since service, the Board notes that a respiratory disorder was not reported at the time of his service discharge. Moreover, there is no competent medical evidence that the Veteran complained of or was treated for a respiratory disorder for many years after his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. The Board finds any assertion by the Veteran that there has been a continuity of symptomatology dating to service is not credible in light of the objective findings noted above giving an onset of the disability well after his discharge from active service. Therefore, continuity of symptomatology since service is not demonstrated. Accordingly, Hickson element (3), medical nexus, is not met, and the Veteran's claim fails on this basis. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a respiratory disorder, claimed as bronchitis and emphysema, to include as due to asbestos exposure. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for a respiratory disorder, claimed as bronchitis and emphysema, to include as due to asbestos exposure is denied. ______________________________ _________________________________ DAVID L. WIGHT MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Veterans Law Judge, Board of Appeals Veterans' Appeals _______________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs