Citation Nr: 1237111 Decision Date: 10/25/12 Archive Date: 11/09/12 DOCKET NO. 10-35 908 ) 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 secondary to exposure to exposure to asbestos and welding dust. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James Alsup, Counsel INTRODUCTION The Veteran served on active duty from September 1945 to June 1949 and November 1952 to September 1954. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim to reopen a previously denied claim for service connection for a lung disability. In a May 2012 decision, the Board reopened the claim and remanded for further development. In this case, recent VA medical records were added to the Veteran's electronic Virtual VA folder, which were considered by the AOJ in the September 2012 supplemental statement of the case. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. 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). FINDINGS OF FACT 1. A preponderance of the competent evidence supports a conclusion that the Veteran's chronic obstructive pulmonary disease (COPD) is unrelated to his active duty service. 2. A preponderance of the medical evidence supports a conclusion that the Veteran does not have asbestosis. CONCLUSION OF LAW Entitlement to service connection for a lung disability to include as secondary to exposure to asbestos and welding dust is not warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his currently diagnosed COPD was incurred during service. He argues that he was exposed to asbestos and welding dust when he worked as a carpenter and welder repairing or maintaining ships during active duty. He contends he has lung problems because of those exposures. Compliance with remand instructions is neither optional nor discretionary and where the remand orders of the Board are not satisfied, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board reopened the Veteran's claim and remanded it for further development in May 2012. The Board requested all VA treatment records from October 31, 2011, and that the Veteran be scheduled for a VA medical examination. The record now includes reference to VA treatment records through June 1, 2012, and includes the report of a September 2012 VA examination. The Board finds that the examination satisfies VA's duty to assist the Veteran. Therefore, the Board finds that there was substantial compliance with the May 2012 Remand. Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012). The Veteran's claim to reopen his previously denied claim was granted. Thus, additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board further notes that the Veteran was informed of what evidence was necessary to substantiate a claim for service connection and how VA determines a disability rating and an effective date in a June 2011 letter. In addition, the Veteran was told of VA's duties to assist him in developing his claim by obtaining records held by Federal agencies, such as military records and VA medical records, and providing him a medical examination if it was necessary to adjudicate his claim. The Veteran's claim was adjudicated subsequent to the notice. Thus, the Veteran had a meaningful opportunity to participate in the adjudication of his claim. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007); Overton v. Nicholson, 20 Vet. App. 427 (2006). The Veteran has not contended that he has not received proper notice with regard to his service connection claim. The record shows that VA obtained the Veteran's service medical records, VA treatment records, and private medical records that were identified by the Veteran. The AOJ reviewed virtual VA treatment records through June 2012 and the Board observes that the Veteran's representative reviewed those records. The Veteran received a VA examination in August 2012. The Board finds that the examination report provides the Board with sufficient detail and rationale to allow adjudication of the Veteran's claim. 38 C.F.R. § 3.159(c)(4) (2012). Thus, the Board finds that adjudication of the Veteran's claim is appropriate as the record shows that VA has satisfied the notification and duty to assist provisions of the law and that no further actions pursuant to the regulation or statue need be undertaken with respect to the claim decided herein. Therefore, the Board will proceed to a decision on the claim. The Veteran contends that he was exposed to asbestos and other substances during active duty service that caused his current lung disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). In order to establish service connection or service-connected aggravation for a disability, the evidence must show: (1) the existence of a present disability; (2) in-service 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 service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). With regard to element whether there is a current disability, the August 2012 VA examiner noted that the Veteran was diagnosed with COPD in 1977 and new pulmonary testing showed his COPD is currently manifested. Thus, there is a current disability. With regard to whether the current disability was incurred in or aggravated during service or is due to an event, injury, or disease during service, the Veteran's service medical record includes a December 1952 x-ray showing "an increased density in the right lung field." In addition, the Veteran worked as a shipfitter and in damage control during service, as shown on his service separation form and a 1957 letter from the Bureau of Naval Personnel. His duties included welding and carpentry on board ships. Thus, there was an event, injury, or disease during service, his exposure to welding and carpentry, and a finding of a density in the right lung.. The crux of the claim comes down to whether any current disability is related to service or to any event, injury, disease, or exposure during service. There must be evidence of a causal relationship between the Veteran's current COPD and the exposures he experienced during service. The Board's May 2012 Remand sought a VA medical examiner's opinion whether it was at least as likely as not that the Veteran's COPD was related to his active duty service and whether the Veteran manifested a disability related to exposure to asbestos. The opinion rendered by the August 2012 examiner was that the COPD was not related to service and the Veteran did not have asbestosis. The August 2012 examiner reviewed the Veteran's VA claims folder and examined the Veteran, and specifically noted the Veteran's contentions that he was exposed to asbestos and welding dust. Based on the review of clinical evidence, the examiner determined that it was not at least as likely that the COPD was due to the Veteran's active duty service because there were no clinical tests to document the onset of COPD during service and there was no evidence to show COPD's onset within two years of the Veteran's discharge from service. The examiner provided a rationale that the vast majority of cases of COPD are due to cigarette smoking, and that there is no objective evidence in the medical literature that any of the Veteran's in-service exposures would cause COPD. The examiner's rationale is supported by the evidence of record. The Veteran has frequently stated, such as in a June 2009 statement, that he started smoking at age 14 and that he continued to smoke cigarettes for many years. The examiner also noted that the diagnosis of COPD was made many years after the Veteran's discharge from active service. VA benefits are generally not payable for disabilities caused by use of tobacco products. 38 U.S.C.A. § 1103 (West 2002). Therefore, the Board finds that service connection for a lung disability based on tobacco use must be denied. With regard to the Veteran's contention that his lung disability is related to exposure to asbestos, the examiner determined that there was no clinical evidence that the Veteran had asbestosis. The examiner reviewed the Veteran's medical record and found that the Veteran's normal total lung capacity on pulmonary function tests indicated that he did not have the restrictive ventilator defect and decreased pulmonary compliance consistent with asbestosis. The examiner noted that the Veteran's DLCO (diffusion capacity of carbon monoxide) was normal, which was not consistent with asbestosis. In addition, the examiner noted that x-rays dated from 1994 to 2010 did not find the pleural plaques that are associated with asbestos exposure. Thus, the examiner did not diagnose asbestosis. The examiner noted the 1952 abnormal x-ray finding, but also noted that subsequent chest x-rays were normal. The examiner concluded that the 1952 x-ray apparently showed that the abnormality resolved with no objective evidence of residual. Thus, the preponderance of the clinical evidence is against a finding of any relationship between the 1952 x-ray and the Veteran's currently manifested lung disability. The Board observes that the Veteran has maintained that further proof of his lung disability was the fact that he failed Marine training requirements because of shortness of breath. There is nothing in the record to indicate that the Veteran has the requisite medical training, experience or education to provide an opinion that the shortness of breath he encountered was caused by a lung disorder he incurred during service. The Board acknowledges that the Veteran may be competent to describe the symptoms of shortness of breath, but that competence does not translate into competence to report a medical opinion regarding etiology of a symptom or disorder. As a layperson, he is not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the Veteran is competent to give evidence about what he experienced or observed. Layno v. Brown, 6 Vet. App. 465 (1994). However, competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). In any case, the statements of the Veteran are outweighed by the clinical findings and medical opinion provided by the August 2012 VA examiner who determined that none of the exposures the Veteran reported would cause his COPD. The August 2012 examiner found that the Veteran's exposures in service would not result in his current COPD and that he did not warrant a diagnosis of asbestosis. The Board finds the opinion persuasive and justified by explanation. Furthermore, there is no contrary competent evidence of record. In sum, the Board finds that the preponderance of the evidence establishes that the Veteran's COPD was not incurred during service and is not related to the Veteran's active duty service or to any exposures therein. To the extent that the evidence shows that it is related to tobacco use, service connection cannot be established for a disability due to tobacco use. The preponderance of the evidence further establishes that the Veteran has no asbestos-related lung disease. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a lung disability is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a lung disability is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs