Citation Nr: 1206412 Decision Date: 02/21/12 Archive Date: 03/01/12 DOCKET NO. 09-34 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a respiratory disorder, to include as secondary to exposure to asbestos in service. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. E. Costas, Counsel INTRODUCTION The Veteran served on active duty from July 1961 to June 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2010, the Veteran presented testimony before the undersigned member of the Board of Veterans' Appeals during a hearing at the RO. A copy of the transcript is of record. In February 2011, the Board remanded the matter for additional evidentiary development. FINDINGS OF FACT 1. The evidence of record preponderates against a finding that the Veteran has a respiratory disorder, to include COPD, that had its onset or is otherwise related to his military service. 2. The evidence of record preponderates against a finding that the Veteran has been diagnosed with asbestosis or another asbestos-related disease. CONCLUSION OF LAW A respiratory disorder, to include asbestosis, was not incurred or aggravated in service. 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 FINDINGS AND CONCLUSION Duties to Notify & Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in July 2007 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and VA examinations dated in July 2009 and March 2011. Moreover, his statements in support of the claim are of record, including testimony provided at a March 2010 before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Board acknowledges that the Veteran submitted a request in October 2011 that he be rescheduled for an additional VA examination. He argued that the March 2011 VA examination was inadequate because it solely addressed the matter as to whether an in-service occurrence of bronchitis was related to his currently diagnosed respiratory disorder. He noted that the February 2011 remand instructions did not address the matter as to whether his current respiratory disorder was related to possible asbestos exposure in service. As will be discussed in further detail below, the Veteran has not been diagnosed with an asbestosis- related disease. Moreover, the matter of whether he currently experiences a respiratory disorder that was related to in-service asbestos exposure was addressed by a VA examiner in July 2009. As the Veteran has been afforded an adequate examination regarding his theory of entitlement for a respiratory as due to asbestos examination, the Board finds no reason to further delay the appellate process. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may 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). The Board notes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations. VA, however, has issued a circular on asbestos-related diseases that provides some guidelines for considering compensation claims based on exposure to asbestos. Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988) (DVB Circular). The information and instructions from the DVB Circular are incorporated in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, 7.21. The provisions of M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but relevant factors discussed by them must be considered by the Board in all decisions in order to fulfill the Board's obligation under 38 U.S.C.A § 7104(d)(1) to provide an adequate statement of the reasons and bases for a decision. See VAOPGCPREC 4-00; McGinty v. Brown, 4 Vet. App. 428 (1993). The first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and must have been followed by the agency of original jurisdiction or the appeal must be remanded for this development. VAOPGCPREC 4-00. Additionally, while not discussed in VAOPGCPREC 4-00, it is likely that factors enumerated at M21-1, Part III, par. 5.13(b) should be considered by the Board. The guidelines further provide that the latent period varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. M21-1, part VI, para. 7.21(a)(1). Finally, the guidelines provide that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion 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. Thus, persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, 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 and pipe products, military equipment, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy Veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because 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). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21(b). 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 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. VAOPGCPREC 4-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1, Part VI, 7.21; DVB Circular 2-88-8, Asbestos-Related Diseases (May 11, 1988). In this case, the Veteran contends that he currently suffers from a respiratory disorder due to his exposure to asbestos in service. He has alleged in statements and through testimony at the March 2010 hearing that he was exposed to asbestos in service while serving aboard ships with the U.S. Navy. A review of the service personnel records demonstrates that he served aboard the USS RANGER and the USS GOLDSBOROUGH. In August 2007, the Veteran specifically alleged that he suffers from asthma, chronic bronchitis and emphysema that he believes is attributable to his service in the engine room of the USS GOLDSBOROUGH. He has also stated that he was exposed to asbestos while working in the engine rooms of both vessels. On his September 2009 VA Form 9, the Veteran alleged that the chronic bronchitis he has experienced was attributable to asbestos in his bronchial tubes and not his lungs. He argues that he was aboard the USS GOLDSBOROUGH before it was commissioned and spent most of his time in the lower engine rooms rebuilding valves, replacing piping and repairing pumps that were lagged with asbestos, with no working ventilation system. Post-service, he reported that, from 1970 to 1972, he was employed in the grease pits, lubricating and changing oil on trucks; during that time frame, he denied any exposure to asbestos. From 1973 to 1978, he worked on clutches, brakes and transmission, with little exposure to asbestos; moreover, he wore a mask and his work space was properly ventilated. From 1978 until he retired 2006, the Veteran was employed as the head auto mechanic and did not work on clutches, brakes or transmissions; therefore, he had no exposure to asbestos. He reported that he quit smoking in 1989 and has not made use of any tobacco products since then; however, he continues to regularly cough up phlegm. During his March 2010 Board hearing before the undersigned, the Veteran testified that he was a machinist mate while serving with the U.S. Navy, wherein he was exposed to asbestos. However, he denied that a medical professional has stated that he currently suffers from any asbestosis related diseases. That notwithstanding, he has been diagnosed with COPD. His pertinent history included initial treatment for asthma in the 1980's. He began experiencing bronchial problems in the 1990's. He testified that as a machinist mate aboard the carriers he was in the auxiliary division and his duties included making liquid oxygen into nitrogen and working on air compressors. When he was transferred to the USS GOLDSBOROUGH, he worked in the engine room where he worked on pipes, pumps, turbines, generators and condensers. During his July 1961 enlistment examination, the Veteran reported a history of pneumonia. A chest x-ray, dated in July 1961, was negative. Service treatment records demonstrate treatment for chronic sinus infection-bronchitis in March 1962 and bronchitis May 1963. A chest x-ray, dated in January 1964, was "essentially negative." Upon discharge examination, in June 1965, clinical evaluation showed normal findings. Post-service treatment reports demonstrate treatment for bronchitis dating back to 1987. Private treatment records, dated in June 1994, indicate a diagnosis of COPD. The examiner noted that the Veteran had experienced major difficulties with bronchitis in the past year. He also noted that the Veteran a smoking history (2 packs a day) for over 30 years, and that he had quit 5 years prior. Upon VA examination dated in July 2009, a VA examiner diagnosed the Veteran with COPD and he opined that it was less likely than not that it was related to any type of asbestos exposure. Rather, the COPD was more likely due to the 30-year smoking history of one to two packs a day. The examiner further noted that the Veteran had not been diagnosed as with any asbestosis related disease. The examiner indicated that a review of the Veteran's most recent imaging studies of a chest x-ray and CT scan were consistent with cardiothoracic surgery and COPD. In this respect, the chest CT described mild diffuse emphysematous changes, which was more consistent with COPD rather than asbestosis. Emphysematous changes consistent with asbestos would commonly be well localized. There were no pleural plaques noted on any of the imaging studies supporting a diagnosis of asbestosis. The Veteran did not have a diagnosis of asbestosis or any findings that would support the diagnosis of asbestosis. He further noted that if in the future the Veteran were diagnosed with asbestosis it would be left to speculation as to whether it would have been caused by the history of exposure to asbestos in the military for 2.5 years as a machinist, which involved a low probability of exposure to asbestos when compared to his 36-year history in the private sector working as a mechanic working on transmission, clutches and breaks. In compliance with the February 2011 remand instructions, the Veteran was afforded an additional VA examination in March 2011. Physical examination did not demonstrate the presence of cor pulmonale, right ventricular hypertrophy or pulmonary hypertension. There was no evidence of restrictive disease. A chest x-ray demonstrated COPD without interval change. No active disease was seen. Pulmonary function tests suggested hyperinflation and gas trapping. The FEV1/FVC ration was reduced and the reduced FEV1 suggested a mild obstructive ventilatory impairment. The Veteran was diagnosed with COPD, which examiner opined was not related to or caused by the in-service incidents of bronchitis during active service in the 1960s. Her opinion was based on the fact that a follow-up chest x-ray was clear and no further treatment was required until 1994. While the Veteran's statements and testimony regarding his exposure to asbestos during service are accepted as true, the most probative medical evidence in this case preponderates against the Veteran's claim. Generally, when asbestos exposure is alleged, VA must determine whether or not the evidence of record confirms the Veteran was exposed to asbestos during service, and determine whether such exposure (as a result of his/her occupation, for example) occurred before or after service. Then it must be determined whether a relationship exists between exposure to asbestos and the claimed disease (with consideration given to latency and exposure factors). See VA Adjudication Procedures Manual Rewrite (M21-1MR or "the Manual"), Part IV, Subpart II, Chapter 1, Section H, 29. However, an "asbestos" claim is not considered complete until evidence of an asbestos related disease is presented. Id. In this case, it is immaterial whether the Veteran was exposed to asbestos while in service, as he has not been diagnosed with any asbestos-related disability. The July 2009 VA examiner determined that the Veteran did not have a diagnosis of asbestosis or any findings that would support the diagnosis of asbestosis. In this regard, the existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Moreover, no objective medical opinion been presented suggesting that the Veteran's COPD is the result of asbestos exposure. The Veteran has contended that service connection should be granted for a respiratory disorder, characterized as COPD. Although the evidence shows a current diagnosis of COPD, no competent medical evidence has been submitted to show that this disability is related to service or any incident thereof, including exposure to asbestos. The first post-service medical evidence of record of COPD is in April 1994, approximately 30 years after his separation from the military. The evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). However, the absence of contemporaneous medical evidence does not in itself preclude a grant of service connection. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Indeed, the Veteran's own statements that his lay-observable symptomatology have been continuous can overcome an absence of medical evidence showing such continuity. In this case, the Veteran is competent to report his history of respiratory symptoms. However, to the extent that he seeks to establish by his statements that he has had continuity of symptoms since service, the Board finds this allegation not credible. Indeed, findings were normal at the time of separation, and no relevant complaints were noted at that time. Moreover, the Veteran did not raise a claim for a respiratory disability until almost four decades after discharge. Had he been experiencing respiratory symptoms dating back to service, it is not highly plausible that he would have neglected to raise a claim sooner. Due to this significant gap in time before the claim was raised, any express or implied statements to the effect that his symptoms have been continuous dating back to service are not persuasive. Moreover, the July 2009 VA examiner linked the Veteran's COPD to his history of smoking. In this regard, the Board notes that Congress has prohibited the grant of service connection for disability on the basis that such disability resulted from disease attributable to the use of tobacco products during a Veteran's active service for claims filed after June 9, 1998. 38 U.S.C.A. § 1103 (West 2002). Furthermore, the March 2011 examiner held that the in-service occurrences of bronchitis were not related to the Veteran's currently diagnosed COPD. The Veteran genuinely believes that he has a respiratory disorder which was incurred in service. His factual recitation as to exposure to asbestos during service is accepted as true. While laypersons are not categorically precluded from offering medical opinions, such opinions are only competent in cases involving a readily observable cause-and-effect relationship, like a fall leading to a broken leg. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the Veteran lacks medical training and expertise, he cannot provide a competent opinion on a matter as complex as the etiology of his current respiratory disorder, and his views are of no probative value in this particular case. In any event, even if his opinion was entitled to some probative value, it is far outweighed by the more persuasive medical opinion of record. As such, the evidence here is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance of the competent medical evidence is against finding that a respiratory disorder, to include asbestosis, was caused or aggravated by active military service. Service connection is therefore denied. 38 U.S.C.A. § 5107(b). ORDER Service connection for a respiratory disorder, to include as secondary to exposure to asbestos in service, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs