Citation Nr: 1207917 Decision Date: 03/01/12 Archive Date: 03/16/12 DOCKET NO. 08-19 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1984 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which granted service connection for tinnitus; denied service connection for shortness of breath and arthritis of the back; confirmed and continued the previous denial of service connection for bilateral hearing loss; and declined to reopen the previously denied claim for service connection for low back pain. In April 2008, the Veteran submitted a notice of disagreement for the denials and subsequently perfected his appeal in June 2008. In March 2011, the Board reopened and denied the Veteran's claim of entitlement to service connection for bilateral hearing loss and remanded his claim of entitlement to service connection for shortness of breath, to include as due to asbestos exposure, to the Appeals Management Center (AMC) for further evidentiary development, including obtaining updated VA treatment records, attempting to verify the Veteran's claimed in-service asbestos exposure, and scheduling the Veteran for a VA examination if in-service asbestos exposure was verified. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC obtained updated VA treatment records. Additionally, an August 2011 memorandum conceded in-service asbestos exposure. Thereafter, the Veteran was afforded a VA respiratory examination in September 2011. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. FINDING OF FACT The preponderance of the evidence is against a finding that a respiratory disorder, to include asthma, is the result of a disease or injury in active duty service, to include in-service asbestos exposure. CONCLUSION OF LAW A respiratory disorder, to include asthma, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (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 on what this evidence shows, or fails to show, on the claim. The Veteran must 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 address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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. Prior to initial adjudication of the Veteran's claim, a letter dated in March 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio at 187. The March 2007 letter also informed the Veteran of how VA determines the appropriate disability rating and effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA examination reports, and all obtainable private treatment records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to his claim. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The record indicates that the Veteran underwent a VA respiratory examination in September 2011. The results from that examination have been included in the claims file for review. The examination involved a review of the claims file, a thorough examination of the Veteran, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the September 2011 examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board notes that the Veteran's representative claims in a January 2012 statement that the September 2011 VA examination was inadequate because (1) the examiner failed to acknowledge the Veteran's conceded in-service asbestos exposure, and (2) the examiner was a staff physician, not a cardiopulmonary specialist. As to the representative's first argument, the examiner did consider the Veteran's conceded asbestos exposure and based his opinion on the lack of a link between asbestos exposure and asthma, not a finding that the Veteran did not have in-service asbestos exposure. As to the representative's second argument, there is nothing to suggest that a staff physician is unqualified to provide an opinion on the etiology of the Veteran's asthma. The examiner reviewed current medical literature relating to asbestos exposure and respiratory disorders and provided a sufficient rationale for his opinion. As such, the Board does not find his opinion inadequate based solely on the fact that he is a staff physician not a cardiopulmonary specialist. Given the foregoing, the Board finds that VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim for service connection for a respiratory disorder. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds. II. Merits of the Claim Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. § 1131 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2011). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2011). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Initially, the Board notes that there is no evidence that the Veteran suffered from a respiratory disorder in service. A review of his service treatment records is negative for any treatment for shortness of breath or other respiratory symptoms. Additionally, the Veteran does not contend that he was diagnosed with or treated for a respiratory disorder in service. Rather, he claims he was first diagnosed with asthma in the mid-1990s and that it is the result of in-service asbestos exposure. See VA respiratory examination report, September 2011. Therefore, the Board will consider whether the Veteran's respiratory disorder is the result of in-service asbestos exposure. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), provides guidelines for considering compensation claims based on exposure to asbestos. 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 adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: 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, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). 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 former 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. See VA O.G.C. Prec. Op. No. 04-00. With respect to the first element of Hickson, the Veteran has been diagnosed with asthma. See VA respiratory examination report, September 2011. Thus, the first element of Hickson is met. The Board notes in passing, however, that the Veteran has not been diagnosed with asbestosis or any other of the above-mentioned asbestos-related diseases. With respect to the second element of Hickson, the Veteran asserts that he was exposed to asbestos during service. As noted above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. As noted above, the Veteran's service treatment records are completely negative for any respiratory complaints or treatment. However, his military specialty was heavy wheeled vehicle mechanic. He claims that he worked with brake shoes as a mechanic. Upon review of the M21-1MR, the AMC conceded in-service asbestos exposure based on the Veteran's military occupational specialty in August 2011. As in-service asbestos exposure has been conceded, the second element of Hickson is met. Although in-service exposure and current disability have been established, as noted above, this is not sufficient to warrant service connection. There still must be competent medical evidence of a nexus between the Veteran's conceded in-service asbestos exposure and his currently diagnosed asthma. See Hickson, supra. As referenced above, the Veteran underwent a VA respiratory examination in September 2011. The examiner reviewed the Veteran's claims file, noting his conceded in-service asbestos exposure and post-service diagnosis of and treatment for asthma. He thoroughly examined the Veteran and obtained a chest x-ray and pulmonary function testing. The chest x-ray was normal without evidence of asbestos-related pleural disease. The examiner diagnosed the Veteran with asthma and opined that his asthma was not caused or aggravated by his in-service asbestos exposure as the current medical literature does not show a relationship between asthma and asbestos exposure. Rather, he concluded that the Veteran's asthma was more likely the result of other environmental allergens, including his history of smoking and dust allergy. In addition to the VA examination, the medical evidence includes VA treatment records reflecting the Veteran's diagnosis of asthma. However, none of these treatment records addresses the Veteran's in-service asbestos exposure or links his currently diagnosed asthma to his military service, including asbestos exposure. In this case, the only evidence which purports to link the Veteran's current asthma to his conceded in-service asbestos exposure consists of the statements of the Veteran and his representative. However, laypersons, such as the Veteran and his representative, are not competent to determine the etiology of a particular diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); see also 38 C.F.R. § 3.159 (a)(1) (2011). Without medical training, the Veteran is simply not competent to opine on the etiology of his currently diagnosed asthma. Thus, there is no competent medical evidence to provide a nexus between the Veteran's service and his current asthma. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. However, there is no competent and credible evidence that the Veteran experienced any symptoms related to asthma prior to the mid-1990s, nor does the Veteran assert such. See Maxson, supra. As the Veteran does not claim continuity of symptomatology since service and there is no evidence to establish such, the medical nexus element of Hickson cannot be met via continuity of symptomatology. As explained above, the competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's active duty service, including his conceded in-service asbestos exposure, and his currently diagnosed asthma. Although the Board notes the Veteran's current disability and in-service exposure, without evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claim of entitlement to service connection for a respiratory disorder, to include asthma, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for a respiratory disorder, to include asthma, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs