Citation Nr: 1146577 Decision Date: 12/21/11 Archive Date: 12/29/11 DOCKET NO. 10-15 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for pulmonary fibrosis/asbestosis. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2011, the Veteran presented sworn testimony during a video conference hearing in Houston, Texas, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's claims file. FINDING OF FACT Pulmonary fibrosis/asbestosis is not the result of a disease or injury in active duty service, to include claimed in-service asbestos exposure. CONCLUSION OF LAW Pulmonary fibrosis/asbestosis, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION 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 Veteran. 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, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim decided herein, 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); 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; and (3) that the claimant is expected to provide. Prior to initial adjudication of the Veteran's claim, a letter dated in May 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio at 187. The May 2008 letter also informed the Veteran of how VA determines the appropriate disability rating and effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment and personnel records, VA treatment records, VA examination report, and all obtainable private treatment records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to his claims. 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, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA examination in February 2009. The results from that examination have been included in the claims file for review. The examination involved a review of the claims file, a thorough examination of the Veteran, and an opinion supported by sufficient rationale. Therefore, the Board finds that the February 2009 VA examination is adequate for to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim for service connection for pulmonary fibrosis/asbestosis. 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, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds. II. Merits of the Claim The Veteran asserts that he was exposed to asbestos while serving aboard Navy ships while on active duty. He claims this exposure is the cause of his pulmonary fibrosis. Therefore, he believes service connection is warranted. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. § 1110 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2011). 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. See 38 C.F.R. § 3.303(d) (2011). In order to establish service connection for a disability, there must be (1) 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) 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). 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), case law, and VA General Counsel opinions 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). 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 M21-1 MR also 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). The Veteran has been diagnosed with several respiratory disorders, including chronic obstructive pulmonary disease (COPD), interstitial lung disease, pulmonary hypertension, pulmonary fibrosis, and possible asbestosis. The Board notes that, while the Veteran claims that he has been definitively diagnosed with asbestosis and that an open lung biopsy showed asbestosis, there is not a clear diagnosis of asbestosis in the claims file. The Veteran has been diagnosed with pulmonary fibrosis, confirmed by biopsy. However, the biopsy only showed evidence of a foreign body in the lung, not asbestos specifically. Although a possible asbestosis diagnosis has been made, the claims file does not establish that the Veteran's pulmonary fibrosis is due to asbestos, rather than another particulate or foreign body. The Board also notes that the Veteran has specifically claimed service connection for pulmonary fibrosis, not COPD. At his April 2011 Board hearing, the Veteran claimed that he did not have COPD, that he believed COPD was linked to smoking, and that his claim was specifically for asbestosis/pulmonary fibrosis. Additionally, there is no medical evidence linking the Veteran's diagnosis of COPD to military service or any claimed asbestos exposure. As such, the Board will focus on whether the Veteran's pulmonary fibrosis, not COPD, is related to his military service. With regard to an in-service event, the Veteran has claimed that he was exposed to asbestos in service. His personnel records show a military occupational specialty of boilerman and service aboard ships. The Veteran claims that while serving on a ship, the U.S.S. Samuel N. Moore, he was exposed to asbestos in three ways. First, he claims that asbestos fell onto his top bunk. Second, he claims that asbestos particles were dislodged while in the boiler room. Finally, he claims that he was tasked with replacing asbestos insulation on pipes in the boiler room. The Board notes that in an unrelated claim filed in January 2007, the Veteran specifically indicated that he had not been exposed to asbestos in service. It was not until filing his present claim that the Veteran first reported in-service asbestos exposure. Further, a March 2007 private treatment record indicates that the Veteran first related his chest pain to herbicide exposure. It appears that the Veteran's claim is evolving and his reports of exposures in and after service seem to be changing to support his claim for monetary benefits. The Board finds that this undermines his credibility. The claims file also includes evidence that the Veteran was exposed to occupational hazards during his post-service employment, including at a plywood plant, a glass factory, and a plastics plant. Although the Veteran denies that these workplaces had asbestos, he does admit some chemical or other exposures from these workplaces. See Board hearing transcript, April 2011. VA and private treatment records also specifically note exposure to dust/chemicals, dust and fumes, and talc. See Private treatment record, September 2007; VA treatment records, April 2008, May 2009. As referenced above, the Veteran was afforded a VA examination in February 2009. At that time, the examiner noted the Veteran's diagnoses of pulmonary fibrosis and possible asbestosis and his claimed in-service asbestos exposure. He concluded that these diagnoses were not related to the Veteran's military service, but rather more likely due to his over thirty year history of various exposures working at a plywood plant, a glass factory, and a plastics plant. The medical evidence also includes several private and VA treatment records alluding to the Veteran's various exposures and the etiology of his pulmonary fibrosis. Notably, an April 2008 VA treatment record indicates that a diagnosis of occupational lung disease from silica, talc, or asbestos was favored. This note did not specify asbestos exposure or in-service asbestos exposure as the cause of the Veteran's respiratory disorder. Additionally, a February 2009 VA treatment record opined that the Veteran's asbestos exposure likely accounted for his pulmonary fibrosis. However, the physician did not indicate that it was in-service asbestos exposure specifically or discuss the Veteran's other post-service exposures. Significantly, the notation of asbestos exposure accompanies a notation that the Veteran had worked in a plastics company. It is not clear that the physician is linking the Veteran's pulmonary fibrosis to his military service. The evidence of record does not support a conclusion that the Veteran's currently diagnosed pulmonary fibrosis is the result of his military service, including in-service asbestos exposure. Significantly, the evolving nature of the Veteran's claims of in-service asbestos exposure diminish the credibility of these assertions. Even if the Board were to accept the Veteran's reports of in-service asbestos exposure, the evidence does not clearly establish that the Veteran's pulmonary fibrosis is due to asbestos exposure. Rather, it has been alternatively opined that his pulmonary fibrosis may be due to silica or talc exposure. Further, the February 2009 VA examiner considered the Veteran's reported in-service asbestos exposure and concluded that it was more likely that pulmonary fibrosis resulted from many years of post-service exposures in glass and plastics factories, rather than his limited time on Navy ships. In sum, the medical evidence does not establish that the Veteran's pulmonary fibrosis is due to in-service asbestos exposure. In this case, the only remaining evidence which purports to relate the Veteran's pulmonary fibrosis to his claimed in-service asbestos exposure consists of the Veteran's own statements. However, it is now well established that laypersons, such as the Veteran, without medical training are not competent to relate his symptoms to a specific etiology when the matter at issue is one more suitable to the realm of medical science. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also 38 C.F.R. § 3.159 (a)(1) (2011) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran can describe what he experiences, he is not able to provide competent evidence as to the etiology of his pulmonary fibrosis, as the etiology of a disease process that has multiple potential origins and which develops over time and is unobservable until its latent stages is clearly far beyond what a layperson can reasonably be expected to provide expertise. In any event, his assertions would be accorded less weight than the competent medical evidence, and the VA examiner's opinion in particular, that are against his claim. Competent evidence linking the Veteran's pulmonary fibrosis to service is lacking in this case. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. However, there is no competent medical evidence that the Veteran was seen for any respiratory complaints until 2005 or that he was diagnosed with pulmonary fibrosis until 2007, over thirty years after 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). Although a June 2008 statement from the Veteran indicates that he has experienced lung problems since service, this is contradicted by the medical evidence. In particular, his March 1971 separation examination is negative for any respiratory or lung complaints. Further, none of the treatment records indicate that the Veteran reported a 30 year history of respiratory problems. Surely if the Veteran had experienced such a long history of respiratory symptoms, he would have reported it to his healthcare providers when seeking treatment for a respiratory disorder. In light of these inconsistencies and the lack of other evidence, the evidence simply does not support a finding of continuous respiratory symptoms since active duty. Thus, the medical nexus element of Hickson cannot be met via continuity of symptomatology. As explained above, the competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's active duty service, including his alleged in-service asbestos exposure, and his current pulmonary fibrosis. Although the Board notes the Veteran's current disability and claimed in-service asbestos exposure, without evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claim of entitlement to service connection for pulmonary fibrosis/asbestosis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for pulmonary fibrosis/asbestosis is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs