Citation Nr: 1220522	
Decision Date: 06/12/12    Archive Date: 06/22/12

DOCKET NO.  00-03 645	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for a lung disorder, to include interstitial lung disease, claimed as due to asbestos or chemical exposure.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

David Gratz, Counsel



INTRODUCTION

The Veteran has active duty for training (ACDUTRA) from May 1979 to February 1980, active duty from September 1990 to October 1990, and additional periods of ACDUTRA.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 1999 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In a May 2000 decision, the Board denied the Veteran's claim for entitlement to service connection for a lung disorder.  The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court).  In a December 2000 Order, the Court vacated the May 2000 decision and remanded the matter back to the Board for development consistent with the Appellee's Unopposed Motion for Remand and to Stay Proceedings (Motion).  Subsequently, the Board remanded the case for additional development in August 2001, August 2006, and August 2007.  Thereafter, in January 2011, the Board again denied the Veteran's claim for entitlement to service connection for a lung disorder.  In October 2011, the Secretary of Veterans Affairs and the Veteran, through his attorney, filed a Joint Motion to vacate the Board's January 2011 decision and remand the case for further development.  That motion was granted by the Court in October 2011.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

Resolving reasonable doubt in favor of the Veteran, his obstructive lung disease is etiologically related to chemical exposure during his military service.



CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for obstructive lung disease have been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

As the Board's decision to grant service connection for obstructive lung disease herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and the implementing regulations.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in- service disease or injury and the present disease or injury.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran contends that he was exposed to chemicals during service and that as a result of this exposure he developed interstitial lung disease.  He asserts that he was exposed to chemicals from solvents and fumes as a result of his in-service employment as a painter.  

The Board notes that the Veteran has, in the alternative, alleged entitlement to service connection for his lung disorder as a result of asbestos exposure.  As will be discussed herein, there is conflicting evidence as to whether the Veteran has been diagnosed with an asbestos-related disorder; however, as service connection for the Veteran's lung disorder is granted herein as related to his in-service chemical exposure, the Board need not reach a determination with regard to the Veteran's alternative theory of entitlement based on asbestos exposure. 

Review of the Veteran's service personnel records indicates that he was exposed to paint, dust, fumes, and chemicals.  The Board finds that the Veteran's testimony regarding exposure to chemicals is consistent with his military occupational specialty, and, therefore, his report of exposure to chemicals in service is credible.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

The Veteran's service treatment records are negative for any complaints, findings, or diagnosis of respiratory problems.  After service, in May 1994, a private physician, Dr. M., diagnosed the Veteran with asbestos versus subclinical asthma.

Private treatment records dated in April 1995 indicate that the Veteran presented with significant pulmonary symptoms that could indicate the possibility of asbestos-related disease, with some compatible chest x-ray examination findings.  Dr. M. reported that pulmonary function testing (PFT) was required.  Additional private treatment records dated in April 1995 indicate that the Veteran presented for reevaluation due to his recent rejection for compensation related to asbestos exposure.  Dr. M. noted that the Veteran was not prescribed any medication and that he complained of dyspnea on exertion.  Dr. M. reported that he was unable to diagnosis an asbestos-related disease without further studies.  Record of PFT, dated in October 1996, indicates that the Veteran demonstrated spirometry, lung volume, and diffusion capacity within normal limits.  A notation indicates that the Veteran had an insignificant response to the bronchodilator.  A hand-written and difficult to read note on the PFT report indicates that the Veteran had a small airway obstruction.  The hand-written word "interstitial" appears, but without further comment.

Private treatment records dated in October 1996 indicate that the Veteran underwent a recent PFT and his physician, Dr. M., reported that such was consistent with very mild interstitial process.  Record of private x-ray examination of the chest, dated in September 1999, indicates that the Veteran had hyper-expansion of the lungs and a narrowed cardiac silhouette with increased markings, consistent with chronic obstructive pulmonary disorder (COPD).

Dr. M., in November 1999, submitted a letter on the Veteran's behalf.  Dr. M. wrote that the Veteran had asthma and significant asbestos exposure from his normal occupation and weekend supplemental job that resulted in early interstitial lung disease on x-ray examination of the chest on several occasions.

On VA examination in October 2002, the Veteran reported that he worked around asbestos for eight or nine years when he was working with truck brakes.  He also reported that he did paint and body work during his military service.  The Veteran complained of shortness of breath when walking one-half of one block.  He reported that he was not receiving treatment for his pulmonary complaints and was not taking any prescription medication.  Physical examination revealed a moderate productive cough, with dyspnea on exertion.  The examiner reported that x- ray examination of the chest did not reveal any asbestosis, and PFT suggested some obstruction, but no restrictive disease.  The examiner reported that the Veteran was not asthmatic and that there was no apparent restrictive disease, and diagnosed the Veteran with COPD and history of asbestosis and solvent exposure.

Dr. K., in September 2002, reported that chest x-ray examination revealed hyperinflation, consistent with some degree of chronic obstructive pulmonary change.  He diagnosed the Veteran with COPD.  In private treatment records dated in January 2003, Dr. K. reported that chest x-ray examination revealed hyperinflation.

In December 2004, Dr. K. submitted a letter on the Veteran's behalf.  He wrote that the Veteran had several medical problems, as likely as not related to exposure to chemicals and asbestos in the military.  Dr. K. noted that he had reviewed the Veteran's service treatment records.  He further reported that x-ray examination of the chest in December 2004 revealed interstitial change and hyperinflation, consistent with interstitial lung disease.  He noted that PFT in December 2004 revealed severe restrictive defect, consistent with some degree of interstitial lung disease.  Dr. K., also in December 2004, reported that chest x-ray examination revealed hyperinflation, consistent with COPD.

Private treatment records dated in January 2006 indicate that the Veteran reported occasional difficulty breathing and the use of inhalers.  Dr. K. reported that the Veteran had interstitial lung disease, by physical and x-ray examination and computed tomography.  In private treatment records dated in January 2006, he reported that chest x-ray examination revealed very hyper- inflated lungs, consistent with COPD or reactive airway disease, and mild interstitial changes.  He reported that a clinical correlation was needed.  Dr. K., in private treatment records dated in February 2006, reported that chest x-ray examination revealed lungs consistent with COPD, otherwise negative.  In January 2007, he noted that the Veteran had asthma and COPD.

On VA examination in October 2006, the Veteran reported the date of onset of his pulmonary complaints as the late 1990's.  He reported that he was exposed to asbestos from brake shoes and paint during his military service.  He complained of an occasional non-productive cough, daily or several times each day; weekly wheezing; and increasing, frequent dyspnea on exertion.  He reported that he quit smoking in 1991, and previously smoked three or four cigarettes each day for ten years.  The examiner reported that there was no history of emphysema, asthma, or respiratory failure.  Physical examination was entirely negative.  The examiner reported that there were no conditions that may be associated with pulmonary restrictive disease.  The examiner reported that x-ray examination of the chest revealed emphysematous changes, with no evidence of pleural thickening.  The examiner also reported that PFT revealed no obstruction in spirometry.  The examiner reported that PFT also revealed reduced maximum voluntary volume or maximum voluntary ventilation, possibly due to poor patient effort or neuromuscular disease, and increased respiratory volume which may suggest obstruction with air trapping.  The examiner reported that PFT revealed that diffusion capacity of carbon monoxide and total lung capacity were normal.  The examiner diagnosed with Veteran with COPD, and opined that such is less likely as not caused by or the result of his in-service asbestos exposure.  He noted that while previous private physicians documented that the Veteran had abnormal chest x-ray examinations consistent with interstitial lung disease, the description of some of the x-ray examination reports indicates hyperinflation, not an interstitial lung process.  The examiner noted that recent VA x-ray examination revealed emphysematous lung disease and not interstitial lung disease.  The examiner noted that the Veteran's private physician hand-wrote the word "interstitial" on a previous PFT report.  The examiner noted that his review of such report revealed normal results, not diagnostic of any lung disease, including interstitial lung disease.  The examiner noted that previous PFT revealed normal spirometry and elevated residual lung volume, without evidence of interstitial lung disease and possibly evidence of obstructive lung disease.  The examiner noted that the Veteran's medical history included asbestos exposure.  He noted that, with the exception of the diagnosis of interstitial lung disease being listed in his private physician's clinical notes, there was no other evidence to support such diagnosis.  The examiner noted the Veteran's smoking history and, based upon his chest x-ray examinations and PFT indicating elevated residual lung volume, diagnosed the Veteran with COPD.  Based on the foregoing, he opined that the Veteran's smoking history is much more likely the cause of his COPD than his in-service asbestos exposure.  The examiner noted that he reviewed the Veteran's claims file.



Private treatment records dated in September 2007 indicate that the Veteran underwent a chest x-ray examination which revealed clear lungs with hyperinflation.

In a June 2008 addendum, the October 2006 VA examiner reported that he reviewed additional treatment records from Dr. K.  The VA examiner reported that review of such records did not change the opinion rendered in October 2006.  The VA examiner again reported that while Dr. K.'s clinical notes include a history of asbestos exposure, there is no definitive diagnosis of asbestosis.  The VA examiner again reported that Dr. K.'s December 2004 PFT report is not diagnostic of restrictive or interstitial lung disease.  The VA examiner opined that mildly reduced FVC and FEV1 can be present in both restrictive and obstructive lung disease, and that the Veteran's prior PFT indicates lung volumes more consistent with mild obstructive lung disease.  The examiner concluded that the Veteran's claims file did not include evidence of interstitial lung disease or asbestosis.

The Board, subsequent to its August 2007 remand, sought a VHA advisory medical opinion in April 2010.  In a response dated in July 2010, the physician stated that he reviewed all four volumes of the Veteran's claims file.  He provided a recitation of the clinical findings, specifically results of chest x-ray examinations and PFT.  The physician noted that results of a March 1988 chest x-ray examination were normal and x-ray examination in January 1991 revealed fields free and clear of infiltrates.  The physician noted that reports of chest x-ray examinations dated from October 2002 to September 2007 revealed emphysematous changes and/or hyperinflation, without comment as to increased interstitial markings, pleural thickening, and/or calcifications or diaphragmatic calcifications to suggest asbestos-related disease or asbestosis.  The physician noted that spirometry in September 1996 revealed a mild obstructive defect, and spirometry in October 2002 revealed reduced lung volumes as evidence of an obstructive defect.  The physician reported that the Veteran's lung volumes at that time were consistent with hyperinflation rather than restriction, which would be the pattern seen if the Veteran indeed had interstitial lung disease secondary to asbestos exposure.  The physician noted that spirometry in December 2004 revealed some obstruction present, but that one could not state if the Veteran had additional restriction without having lung volume measurements to review.  The physician noted that prior PFT in October 2002 revealed a pattern exactly the same as the pattern revealed in December 2004.  The physician noted that Dr. K. found bibasilar crackles and decreased breath sounds on physical examination in September 2002.

Based on the foregoing, the physician concluded that the Veteran had significant COPD, most likely related to his tobacco use.  The physician reported that the Veteran did not have asbestos-related disease or asbestosis by chest x-ray examination or PFT.  He reported that while Dr. K. found bibasilar crackles on physical examination, such did not change his opinion as to the etiology of the Veteran's lung disease.  He reasoned that crackles in the lungs can also be associated with cardiac disease.  The physician opined that the Veteran's work exposures during service are unlikely related to his COPD.  He reasoned that there was no evidence of interstitial lung disease by chest x-ray examination or PFT.  Significantly, the physician did not render an opinion as to whether the Veteran's current lung disorder is related to his in-service chemical exposure.

Thereafter, the Board obtained another VHA advisory medical opinion in May 2012 from a pulmonologist who reviewed the Veteran's claims file.  The pulmonologist opined that the Veteran does not have lung damage from asbestos because he does not have the classic findings of exposure on his lungs or imaging, and because his test results are consistent with an obstructive-type lung disease rather than a restrictive (asbestos-related) lung disease.  The May 2012 pulmonologist further opined that it is at least as likely as not that the Veteran's obstructive lung disease is related to chemical exposure during military service.  The pulmonologist explained that it is fairly well known that asthma and COPD, especially the bronchitis-type, may be affected by spraying paint.

Attributing the benefit of the doubt to the Veteran, and in the absence of any adequate medical opinion to the contrary, the Board finds that the Veteran's diagnosed obstructive lung disease warrants service-connection due to chemical exposure based on his competent and credible statements regarding such exposure in service, his military occupational specialty, and the May 2012 VHA pulmonologist's positive etiological opinion regarding the relationship between chemical exposure and obstructive lung disease.

Accordingly, service connection for the Veteran's obstructive lung disease is granted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for obstructive lung disease is granted.



____________________________________________
A. JAEGER
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs