Citation Nr: 1124226 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 08-25 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lung disability to include as due to claimed asbestos and chemical exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from January 1944 to November 1946, and from March 1951 to May 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2009, the Veteran testified at a Travel Board hearing before the undersigned. 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 & Supp. 2010). FINDING OF FACT The Veteran's diagnosed lung disability, chronic obstructive pulmonary disease (COPD) is not attributable to service to include due to claimed asbestos and chemical exposure. CONCLUSION OF LAW A lung disability was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the Veteran with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). A June 2007 letter informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b), as stated above. The letters also notified the Veteran that that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded, in compliance with Dingess. Regarding the duty to assist, VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's available service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As noted below, there are apparently missing service treatment records, but they are unavailable. VA also has been unable to obtain VA treatment records from the Tampa VA medical Center dated 1977 to 2002, per a December 2010 Unavailability Memorandum. The Social Security Administration (SSA) informed VA that their records had been destroyed. The Veteran's claims file was lost in 1980, but VA rebuilt the claims file. Despite the foregoing, VA has followed all appropriate procedures to ensure a complete record in this case. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The Veteran was also afforded a VA examination in July 2010. 38 C.F.R. § 3.159(c)(4). This examination is adequate as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran, provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran's representative has requested a new VA examination since the July 2010 examiner did not have the opportunity to review additional VA records that were received after the examination was conducted. However, as explained in further detail below, the examiner determined that the Veteran's current diagnosis is not related to service and that interstitial lung disease, not obstructive (which is the type the Veteran has), is the type of lung disease attributable to asbestos. These new records do not show any findings converse to those of record at the time of the VA examination. Thus, the records satisfy 38 C.F.R. § 3.326. In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, 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). In order to establish service connection, the evidence must show: (1) the existence of a present disability; (2) inservice 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 the service." Shedden v. Principi, 381 F. 3d 1163, 1166-67 (Fed. Cir. 2004). There must be competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The United States Court of Appeals for Veterans Claims ("the Court") has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the Veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Some of the Veteran's service treatment records are missing and appear to have been destroyed in a fire at the National Personnel Records Center in St. Louis, Missouri in July 1973. Under such circumstances, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). It is further noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). During the first period of service, the service treatment records reflect that a March 1944 chest x-ray was negative. Records from the second period of service note that the Veteran was not present for a physical examination at separation. Post-service, March and May 1980 VA records reflected normal chest x-rays. An April 1981 VA hospitalization report noted that the Veteran had a clear chest. A review of his body systems was also negative. Other April 1981 records also reflect negative respiratory findings. The Veteran was noted to have a past history of tobacco use, but not current use. In December 1983, the Veteran's initial claim for VA compensation was received. He reported having several disabilities, but there was no claim made at that time for a respiratory disorder. In March 2007, the current claim of service connection for a respiratory disorder was received. At that time, the Veteran indicated that he was exposed to asbestos and chemicals while aboard the USS Hancock vessel during service and while working in the ship's laundry room. There is no specific statutory guidance with regard to asbestos-related claims nor has the Secretary promulgated any regulations in regard to such claims. VA has issued a circular on asbestos-related diseases. However. 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 has held that VA must analyze an appellant's claim of service connection for asbestosis or asbestos-related disabilities using the administrative protocols found in the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C, essentially 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. "Asbestosis is a pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." See McGinty. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(e). Some of the major occupations involving exposure to asbestos include 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, military equipment, etc. M21-1, Part VI, Subpart ii, Chapter 2, § C(9)(f). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos-related claim. See VAOPGCPREC 4-2000. 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 Veteran's inservice circumstance of working aboard a ship does not create a presumption of asbestos exposure, although it is possible that he was so exposed. Thus, the Board will assume for the purpose of this case that the Veteran was so exposed. At his Travel Board hearing, the Veteran indicated that he had COPD which he believed was related to claimed exposures to asbestos and chemicals. Competent lay evidence may establish the presence of observable symptomatology and, in certain circumstances, it may provide a basis for establishing service connection. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions beyond simple observations. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases. Id at 1337. The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence. Id. Since this case involved complex medical questions which are not observable to lay persons, the RO afforded the Veteran a VA examination in August 2010. The VA examination included a physical examination, chest x-rays, pulmonary function tests (PFTs), and medical literature review which overall yielded a diagnosis of COPD. The x-rays revealed linear changes suggesting old scarring at the left lung base, but without evidence of active disease. The PFTs suggested moderate obstructive lung impairment. The physical examination indicated the presence of COPD. The examiner opined that it was less likely as not the COPD was related either to inservice asbestos or chemical exposures. The examiner explained that those types of exposures result in interstitial lung disease. The Veteran has obstructive lung disease. Subsequently received VA records confirm the diagnosis of COPD, but do not offer further clinical findings than were previously of record at the time of the VA examination. It was thought that the Veteran had a pulmonary nodule in 2008, but subsequent findings did not show a pulmonary nodule. As previously noted, the Veteran's representative requested a new VA examination based on this evidence, but there are no additional findings which suggest that a different conclusion would be reached by the examiner as the Veteran had the same diagnosis (COPD) both before and after the VA examination. After a careful review of the evidence of record, the Board finds that entitlement to service connection for a lung disability has not been established. Even if the Veteran had inservice asbestos and chemical exposure, the VA examiner explained that his current diagnosis is not due to that exposure. Otherwise, there is no evidence linking his COPD to service, other than the Veteran's own statements. However, the Veteran does not have the medical expertise in this case to provide a nexus between his COPD and service. While the Veteran is competent to describe symptoms such as difficulty breathing or shortness of breath, his lung condition is not a condition under case law that has found to be capable of lay observation, and the determination as to the presence of the disability therefore is medical in nature, that is, not capable of lay observation. See Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the Veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Conversely, the VA examiner indicated that there was no etiological connection. The Board attaches the most probative value to this opinion, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The VA examiner's opinion was based on review of the Veteran's claims file as well as an examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The medical record does not show any inservice complaints, findings, treatment, or diagnosis of a lung disability. Moreover, the 1980 and 1981 medical records also do not show lung disability. Rather, the findings revealed a normal chest. COPD, the currently diagnosed lung disability, was first shown decades after service. In sum, given the normal service treatment records, absence of treatment for years after service and normal findings in 1980 and 1981, and the VA examiner's medical opinion, the Board finds that the evidence weighs against the continuity of symptomatology. See Savage, supra. The Board recognizes that there are missing records in this case; however, the decision is not predicated on an absence of evidence which could establish the claim. The VA examiner explained that the current diagnosis is essentially not compatible with the claimed inservice exposures, it is a different type of lung disorder. The Veteran does not have interstitial lung disability, he has obstructive lung disability. The VA examiner's opinion, as noted, is the most probative evidence of record on that point. The Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against a grant of service connection for a lung condition. Thus, the benefit of the doubt doctrine is not applicable in the instant appeal and the claim is denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert. ORDER Service connection for a lung disability to include as due to claimed asbestos and chemical exposure is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs