Citation Nr: 1206362 Decision Date: 02/21/12 Archive Date: 03/01/12 DOCKET NO. 10-29 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a lung disorder, to include as due to in-service asbestos exposure. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from June 1948 to June 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Please note that 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 A lung disorder was first diagnosed many years after the Veteran's active duty and is not causally or etiologically related to such service, including his conceded in-service exposure to asbestos. CONCLUSION OF LAW A lung disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, a pre-decisional notice letter in June 2009 complied with VA's duty to notify the Veteran with regards to the issue of entitlement to service connection for a lung disorder. Specifically, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. It also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), personnel records, and post-service medical records and secured an examination in furtherance of his claim. VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims file. 38 C.F.R. § 3.159(c)(1)-(3). A pertinent VA examination/ opinion with respect to the issue on appeal was obtained in May 2010. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination/opinion obtained in this case is sufficient, as it considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinion stated. Thus, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). II. Analysis The Veteran contends that he has chronic obstructive pulmonary disease (COPD) as a result of being exposed to asbestos in service. However, the Veteran has reported smoking approximately one-and-a-half to two packs of cigarettes daily from 1948 to 1984. See July 2009 statement. He also reported working as a bricklayer until 1992 when he retired after working for 33 years. Id. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (1995). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 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 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and VA General Counsel provide guidance in adjudicating these claims. In McGinty v. Brown, the United States Court of Appeals for Veterans Claims (Court) observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. 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 applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). 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 facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id. at 7.21(b)(1). The latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See id. at 7.21(b)(2). "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." McGinty, 4 Vet. App. at 429. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(c). Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999). See also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. Here, the Veteran's STRs show no treatment for, or diagnosis of, any type of lung disorder. They also do not show any respiratory complaints. The Veteran's June 1956 discharge examination revealed clinically normal lungs and chest. The Veteran's DD 214 shows that his military occupational specialty (MOS) was that of an electrician. His service personnel records show that he was stationed aboard the USS Los Angeles. The Veteran statements indicate that he worked in fire rooms and boiler rooms and that the pipes were covered in asbestos. Buddy statements submitted by the Veteran support his assertions. Accordingly, the RO has conceded the Veteran's in-service exposure to asbestos due to his service aboard the USS Los Angeles. According to post-service medical records, a chest CT scan in January 2009 showed some mild pleural thickening; no evidence of calcified plaques typical of asbestos related disease; an azygos lymph node; small bilateral hilar nodes; severe emphysematous changes bilaterally with scarring in the lung bases; and some fibrosis in the left lower lobe. A spirometry report in January 2009 revealed severe airway obstruction. The impression of a CT scan in October 2009 was severe bilateral centrilobular emphysematous changes, not appreciably changed compared with thoracic CT scan in January 2009; and mediastinal lymph node enlargement, not appreciably changed. A record dated in November 2009 shows that the Veteran reported smoking one and a half packs of cigarettes per day until he quit in 1984. He also had concerns with past history of asbestos exposure lung disease. The pertinent diagnoses were moderate COPD and pulmonary fibrosis with unknown causes. With regards to the pulmonary fibrosis, there was possible scarring from past surgery and gastrointestinal reflux disease (GERD). It was noted that only an open lung biopsy could show if it was related to asbestos exposure. The Veteran was afforded a VA examination in May 2010. He reported smoking two packs of cigarettes per day for 36 years and inhaling of dust from a brick factory post-service. He also reported his in-service asbestos exposure. The onset of his COPD was reportedly in 1970. He had left lung resection surgery in 1993 and coronary bypass surgery in 1992. X-rays revealed chronic infiltrate left lung base and small bilateral effusions versus pleural thickening. Following an examination, the Veteran was diagnosed with COPD. The examiner opined that it was due to heavy tobacco use and occupational exposure in the brick factory. The examiner noted that the Veteran had no signs of asbestos exposure on chest X-rays. Based on a review of this evidence, the Board finds that service connection for a lung disorder is not warranted. Although the Veteran has been diagnosed with COPD and pulmonary fibrosis post-service, and asbestos exposure is conceded, the Board finds that the evidence does not support a finding of a nexus between the two. In this case, the May 2010 VA examiner's opinion indicates that the Veteran's COPD is not related to his military service. Rather, the examiner opined that it is related to the Veteran's heavy tobacco use and occupational exposure in a brick factory. As discussed above, the Veteran has admitted a long history of smoking tobacco in addition to working as a brick layer for several decades post-service. The examiner's opinion is based upon an examination of the Veteran and a review of his history, including the pertinent STRs. Furthermore, the examiner found no evidence of asbestos-related disease on X-ray. Such opinion is consistent with the January 2009 chest CT scan showing no evidence of calcified plaques typical of asbestos related disease. Regarding the pulmonary fibrosis, the November 2009 treatment record showing that diagnosis indicated that only an open lung biopsy could determine whether it was related to asbestos exposure. In this case, no evidence has been presented that the Veteran's pulmonary fibrosis is related to his in-service asbestos exposure. Furthermore, the evidence does not support a finding that the Veteran's post-service diagnoses had their onset in service. The Veteran reported to the VA examiner that the onset of his COPD was in 1970, almost two decades after he was discharged from service. Additionally, the first evidence of a diagnosis of COPD or pulmonary fibrosis was in 2009, over five decades after the Veteran was discharged from service. The Court has indicated that normal medical findings at the time of separation from service, as well as the absence of pertinent complaints or medical records of relevant diagnosis or treatment for many years after service, is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of respiratory complaints, symptoms, or findings for almost two decades between the period of active service and the Veteran's first complaint is itself evidence which tends to show that a lung disorder did not have its onset in service or for many years thereafter. In this regard, the Board acknowledges the Veteran's belief that he has a lung disorder that is related to his military service. However, there is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render a competent medical opinion as to etiology of a disability. Espiritu, 2 Vet. App. 492; 38 C.F.R. § 3.159(a)(1) (2011). Thus, the Veteran's own assertions as to etiology of a disability have no probative value. Without evidence of an onset of a lung disorder in service, a continuity of pertinent symptomatology since service, or competent evidence of an association between a currently-diagnosed lung disorder and the Veteran's active duty, service connection for a lung disorder is not warranted. Based on the evidentiary posture of the present appeal as discussed herein, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a lung disorder, to include as due to in-service asbestos exposure. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a lung disorder, to include as due to in-service asbestos exposure, is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2011). ORDER Entitlement to service connection for a lung disorder, to include as due to in-service asbestos exposure, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs