Citation Nr: 1128618 Decision Date: 08/02/11 Archive Date: 08/10/11 DOCKET NO. 06-24 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a respiratory disability, claimed as chronic obstructive pulmonary disease (COPD), asthma, and emphysema, to include as due to asbestos exposure during service. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1959 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified at a Board hearing at the RO in June 2009 before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. The case was remanded by the Board in November 2009 to obtain the Veteran's Social Security Administration (SSA) disability records. The case was again remanded in September 2010 to obtain the Veteran's treatment records from the Spokane, Washington VA Medical Center. A review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran has a current diagnosis of COPD, asthma, and emphysema. 2. The Veteran did not experience symptoms of a chronic respiratory disability during service or continuous symptoms of a respiratory disability since separation from service. 3. The Veteran's respiratory disabilities are not causally or etiologically related to the Veteran's service, to include his in-service exposure to asbestos. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, claimed as COPD, asthma, and emphysema, to include as due to asbestos exposure during service, have not been met. 38 U.S.C.A. §§ 1131, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that through VCAA letters dated February 2004 and December 2009, the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection. The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). A VCAA letter to the Veteran was provided in February 2004 prior to the initial unfavorable decision in May 2004. In this case, the December 2009 letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. Although one of the notices did not precede the initial adjudication of the Veteran's claim, the later notice was followed by a subsequent readjudication, in this case a supplemental statement of the case issued in May 2011, thereby curing the defective notice error. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Veteran has received all essential notice, and has had a meaningful opportunity to participate in the development of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board personal hearing, the Veterans Law Judge (VLJ) noted the elements of the claim that were lacking to substantiate the claim of service connection. The Veteran was assisted at the hearing by an accredited representative from the Oregon Department of Veterans' Affairs. The representative and the VLJ asked questions to ascertain the extent of any in-service complaints, events, or injuries, and whether the Veteran's current disability is related to his service. They also asked questions to draw out the current state of the Veteran's disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board also finds that there has been substantial compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA examination reports, private treatment records, VA treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded a VA examination in April 2006. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the pertinent medical history was noted by the April 2006 examiner, as well as the Veteran's history and complaints, and the examination report sets forth detailed examination findings, the examination report is adequate to decide the claim of service connection. Thus, the Board finds that additional examination or opinion is not necessary. Service Connection Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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. 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). Regarding asbestos exposure, there is no specific statutory guidance with regard to asbestos-related claims, nor has the 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) (DVB Circular) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, 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). 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 former 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. See VA O.G.C. Prec. Op. No. 04-00. The Board is to consider all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). After a review of all the evidence, lay and medical, the Board finds that, although the Veteran was exposed to asbestos during service, the Veteran's COPD, asthma, and emphysema are not related to that exposure. The Board acknowledges that the Veteran has a current diagnosis of COPD, asthma, and emphysema. The Board notes, however, that he has not been diagnosed with asbestosis. "Asbestosis is 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 v. Brown, 4 Vet. App. 428, 429 (1993). M21-1 MR 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). Even assuming asbestos exposure during service, the Veteran's service treatment records are silent regarding any respiratory complaints or diagnosis of COPD, asthma, or emphysema, and the Veteran does not allege that his COPD, asthma, or emphysema began during active service. Rather, the Veteran reports that his respiratory difficulties began with a diagnosis of walking pneumonia and bronchitis in 1964 or 1965, after separation from service. While acknowledging the Veteran's belief that his respiratory disabilities are due to service, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a nexus opinion relating any respiratory disability to in-service asbestos exposure, the Board finds that the etiology of the Veteran's COPD, asthma, and emphysema is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. The Veteran is certainly competent to testify as to symptoms such as difficulty breathing, coughing, or shortness of breath, which are non-medical in nature; however, he is not competent to render a medical diagnosis or etiology. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). No medical evidence of record relates the Veteran's respiratory disabilities to service. Rather, multiple records show no relation between the Veteran's asbestos exposure and his current respiratory difficulties. A private medical record shows that the Veteran was afforded a chest CT in June 2005. The scan showed no pleural effusions or focal wall thickening and no subpleural fibrosis. The interstitial markings were not increased. In September 2005, a private medical doctor noted seeing the Veteran after several earlier evaluations. The examiner stated that there was no current evidence of asbestosis. The examiner opined that the Veteran's disease is in large part asthma related to chronic inhalation of multiple substances, including tobacco, particulates from his wood-burning stove, and others. The Veteran was afforded a VA examination in April 2006. The examiner noted the Veteran's history, including asbestos exposure. He noted no respiratory problems prior to or during active duty. The examiner reported a history of bronchitis and walking pneumonia in 1964 or 1965. The Veteran was then told he had asthma and emphysema in 1977. The Veteran smoked until 1989. The examiner diagnosed COPD and asthma with a past history of tobaccoism. He found no evidence of asbestosis on the chest x-rays. The claims file contains a significant number of treatment records for respiratory diseases spanning several decades. These records do not show interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, or cancers of the gastrointestinal tract. Without evidence of the above or medical evidence relating the Veteran's current respiratory disabilities to asbestos exposure, the Board finds that entitlement to service connection for a respiratory disability due to asbestos exposure is not warranted. The Board also notes that service connection for a respiratory disability on a direct basis is not warranted. The Veteran's service treatment records do not show respiratory symptoms during service. The Veteran acknowledges that his respiratory symptoms began after separation from service in 1964 or 1965 with a diagnosis of bronchitis and walking pneumonia. As such, the Veteran did not experience symptoms of a chronic respiratory disability during service or continuous symptoms of a respiratory disability since separation from service. Additionally, the evidence of record does not show that the Veteran's current respiratory symptoms are causally or etiologically related to service. Rather, the Veteran's private treatment records relate the Veteran's current respiratory problems to his history of tobacco smoke and other inhalants. Therefore, the Board finds that service connection for a respiratory disability is not warranted on a direct basis. When weighing all lay and medical evidence, the Board finds that a preponderance of the evidence is against the claim. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for a respiratory disability, claimed as COPD, asthma, and emphysema, to include as due to asbestos exposure during service, is denied. ____________________________________________ MICHELLE KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs