Citation Nr: 1237686 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 09-37 179 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for calcified hilar nodes consistent with prior granulomatous disease. 3. Entitlement to service connection for chronic obstructive sleep apnea, claimed as secondary to asbestos or COPD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from September 1962 to September 1963. This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2008 rating decision of the VARO in North Little Rock, Arkansas. The case was previously before the Board in May 2011 at which time it was remanded in pertinent part for further development. The requested actions have been accomplished and the case has been returned to the Board for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to the provisions of 38 C.F.R. § 20.900 (c) (2011); 38 U.S.C.A. § 7107 (a) (2) (West 2002). Review of the Virtual VA Paperless Claims Processing System does not show any pertinent documents that are not currently associated with the claims folder. FINDINGS OF FACT 1. COPD was not manifested in service and currently diagnosed COPD is not related to service. 2. Calcified hilar nodes consistent with prior granulomatous disease were not present in service or for years thereafter and any current disability manifested by calcified hilar nodes is not related to the Veteran's active service. 3. Any current sleep apnea is not attributable to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). 2. The criteria for service connection for calcified hilar nodes consistent with the prior granulomatous disease are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). 3. The criteria for service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and implemented at 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, and 3.326 (a) (2012) redefines VA's duties to notify and assist Veterans in the development of claims for VA benefits. Under the VCAA, 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. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) apply to all five elements of a service connection claim. Those elements are: (1) Veteran's 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 award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In various letters of record, including one dated in May 2011, the Veteran was informed of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims, and, as indicated by law, affording him an appropriate VA examination. Indeed, the case was remanded by the Board in May 2011 in order to provide the Veteran an examination with opinion as to the etiology of the claimed disabilities. This was accomplished in June 2011 and the report of the examination is of record and has been reviewed. Accordingly, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims at issue are thus ready to be considered on the merits. Pertinent Laws and Regulations As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy. Therefore, the provisions of 38 U.S.C.A. § 1154 (West 2002) are not for application. Service connection will be granted if the evidence demonstrates that there is a current disability resulting from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal relationship, that is, a nexus, between the claimed inservice disease or injury and the current disability. Holton v. Shinseki, 557 F. 3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Under 38 C.F.R. §§ 3.303 (b), an alternative method of establishing the second or third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post service continuity of the same symptomatology; and (3) a nexus between a current disability and the post service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495 (1997); 38 C.F.R. § 3.303 (b). Service connection may also be granted for a disease first 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). With regard to asbestos-related diseases, the Board notes there is no specific statutory or regulatory guidance. However, in 1988, VA issued a circular on asbestos-related diseases that provided 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 have since been included in VA's Adjudication Procedure Manual. See Adjudication Manual, M21-MR, Part IV.ii.2.C.9 (December 13, 2005) and Part IV.ii.1.H.29 (Sept 29, 2006). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-00 (April 13, 2000). VA must analyze a Veteran's claim of entitlement to service connection for asbestos-related disease under the administrative protocols under the DVB Circular Guidelines. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The guidelines specify that asbestos fibers may produce fibrosis, including interstitial pulmonary fibrosis or asbestosis, tumors, pleural effusion and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). M21-MR, Part IV.ii.2.C.9 (December 13, 2005). The latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. Id. 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 refacing and brake linings, and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. With these claims, VA must determine whether military records demonstrate evidence of asbestos exposure during service and develop whether it is preservice and/or post service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. Id. The pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules. However, they must be considered by the Board in adjudicating asbestos-related claims. See VAOPGCPREC 4-2000. The Board points out that the manual provisions do not create a presumption that a Veteran was exposed to asbestos by reason of having served aboard a ship. See Dyment v. West, 13 Vet. App. 141 (1999), affirmed, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002). Factual Background and Analysis The Board has thoroughly reviewed all the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail all the evidence submitted by the Veteran or in his behalf. See Gonzales v. West, 218 F. 3d 1378, 1380 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence, and what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. The Veteran's service personnel records disclose that his principal duty assignment in the military was that of a wheeled vehicle mechanic. In his report of medical history made at the time of separation examination in September 1963, the Veteran stated that since he had been in service, "he had very good health and right now I feel that my health is very good." He denied ever having had any type of symptoms associated with COPD, calcified hilar nodes, or sleep apnea. Clinical examination at that time was entirely normal. A chest X-ray study was also normal. The initial post service documentation of the presence of a pertinent disorder was an April 2003 chest X-ray study done at a private facility. An impression was given of hyperexpansion and calcified granulomata. An April 2004 private record of chest X-ray studies reflected an impression of presumed bilateral minimal pleural reactions. A different April 2004 private medical record reflects the Veteran was noted to have possible reactive disease and pleural disease with asbestos exposure. Of record is a March 2007 private medical report showing an impression of pleural thickening. In a February 2008 communication, C. J., M.D., stated the Veteran was exposed to asbestos from 1955 to 1998 while working as a boiler worker, pipefitter, steamfitter, plumber, and welder. X-ray studies reportedly revealed parenchymal changes diagnostic of asbestosis. Notation was also made that the Veteran had a 15 pack a year history of cigarette smoking. It was noted that sleep apnea had been diagnosed one year earlier. Pulmonary function testing showed a mixed restrictive and small airways obstructive pattern. The impression was that, based on the Veteran's industrial history, the abnormal chest X-ray study, and pulmonary function testing, the physician believed "beyond a reasonable medical doubt that he [the Veteran] does have evidence of asbestos-related lung disease." A VA respiratory disease examination was accorded the Veteran in November 2008. The claims file, and the service medical records were reviewed prior to the examination. The Veteran stated he had been short of breath in 1997 and he related he was diagnosed with COPD. The examiner referred to the statement from Dr. J. in which a diagnosis of asbestosis was made. The Veteran related that he worked as a welder from 1956 to 1962 before entering service. He stated that during service he was a mechanic and was exposed to asbestos at that time as well. Following service he also was exposed to asbestos. Following examination, diagnoses were made of COPD and obstructive sleep apnea. It was noted that studies were to be conducted for asbestosis. An addendum to the examination report reflected that the Veteran underwent a CT scan of the chest later in November 2008 and there was no evidence of asbestosis. In March 2009 the examiner who conducted the aforementioned 2008 examination again reviewed the file. He reiterated that a CT scan of the chest did not show any evidence of asbestos-related lung disease. After reviewing the claims file, the examiner opined that COPD and respiratory abnormalities noted on diagnostic testing were not due to asbestos exposure in service. He further added that he did not believe the sleep apnea was related to asbestos exposure in service. The same physician again conducted a respiratory disorders examination of the Veteran for VA in June 2011. The examiner stated he was asked to comment whether the Veteran's COPD was related to any asbestos exposure in service, and if calcified hilar nodes were related to that, and if sleep apnea was related to any service-connected disabilities. He noted that the CT scan of the chest done in 2008 did not show any evidence of asbestos-related lung disease. He stated that despite the Veteran's exposure to asbestos in service, as well as his exposure as a welder when not in service, it was his opinion that there was no evidence that the Veteran had asbestos-related lung disease. He stated that opinion was based on the CT scan which he noted was a much more definitive test than a routine chest X-ray study. With regard to COPD, the Veteran reported shortness of breath beginning in 1997. The Veteran smoked for either 15 or 21 years. At the present time he said it was 15, but the examiner noted that history obtained in 2008 reflected 21 years. The Veteran acknowledged quitting smoking in 1975. The examiner also noted the Veteran had obstructive sleep apnea and had been on a C-pap mask for about five years. Following examination, diagnoses were given of COPD: obstructive sleep apnea; and no asbestos and no evidence of asbestos-related lung disease. The physician opined "it is less likely than not" that the COPD was related to his asbestosis. He stated there was no evidence that the Veteran has asbestosis and he stated that does not cause COPD anyway. The examiner remarked that most likely the COPD was related to the Veteran's history of smoking. With regard to the calcified hilar nodes, he indicated "it is less likely than not" that they are related to service or to the Veteran's exposure to asbestos, adding his opinion that is not something that asbestos usually causes. He went on to state that "it is less likely than not that his obstructive sleep apnea is due to the service or his asbestos-related lung disease, or any other service-connected disability. Asbestos is not a cause of obstructive sleep apnea, and there is no evidence that he has asbestosis either, for reasons mentioned above." Based on the foregoing, the Board finds that the Veteran does not have COPD, sleep apnea, or hilar nodes that manifested in service or for years following service discharge. The Veteran and his representative essentially maintain that he was exposed to asbestos while in service and the disabilities at issue all stem from that exposure. The Board is aware that a private physician stated in 2008 that chest X-ray studies showed parenchymal changes diagnosed as asbestosis and expressed the opinion "beyond a reasonable medical doubt" that the Veteran had evidence of asbestos-related lung disease. However, a VA physician examined the Veteran in 2008 and again in 2011 and in addition to performing X-ray studies, performed a CT scan on the Veteran. He stated in his review of the evidence of record that a CT scan is more definitive than a chest X-ray study and the CT scan in this case did not show evidence of asbestos-related lung disease. The Board finds the VA examiner's opinion more probative than that of the private physician primarily because of the more definitive CT scan done on the Veteran and its results. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The VA physician opined that it is less likely than not that the Veteran's COPD is related to asbestosis. He noted that there was no evidence the VA has asbestosis and he added that this does not cause COPD anyway. He opined that the COPD was most likely related to the Veteran's long history of cigarette smoking. In this regard, the Board acknowledges the Veteran's assertion that the disabilities at issue are related to his military experiences. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including the lay evidence. See Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006). This includes weighing the absence of contemporaneous medical evidence against lay statements. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1992) (distinguishing between competency (a legal concept determining whether testimony may be heard and considered), and credibility (a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). See Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, establishing the etiology of COPD, sleep apnea, and/or hilar nodes, many years removed from the time of the Veteran's active service is not a simple matter that is capable of lay observation. Moreover, in this case, the Veteran has given inconsistent accounts of the pertinent facts, and the Board is entitled to assume that this was done with the intent of manipulating the facts to suit his claim. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (self-interest may affect the credibility of testimony). For example, as pointed out by the VA examiner in 2011, the Veteran gave a history of cigarette smoking in 2008 of 21 years of the time of the examination, but then in 2011 he gave only a 15 year history of cigarette smoking. The record shows that at the time of separation examination in 1963, the Veteran stated that he was in good health. He expressed no complaints indicative of any type of respiratory difficulty. Indeed, the record does not show documentation of the presence of any of the disabilities at issue until the early 2000's, a time many years removed from the Veteran's one year of active service in the early 1960's. The Court has held that it is proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints in rendering a decision. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000). The completely normal separation examination with the Veteran's own statement that he was in good health weighs against the claim. Also, the gap of time between any inservice difficulty and the first post service medical evidence of a diagnosis of COPD, sleep apnea, and hilar nodes weighs against the claim. In sum, the persuasive evidence of record does not show that any of the disorders at issue are attributable to the Veteran's active service or to any asbestos exposure he might have had during service. The Board finds the preponderance of the evidence is against the claims and the benefit of the doubt doctrine is therefore not for application. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F. 3d 1282, 1287 (Fed. Cir. 2009). ORDER Service connection for COPD is denied. Service connection for calcified hilar nodes consistent with prior granulomatous disease is denied. Service connection for chronic sleep apnea is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs