Citation Nr: 1225589 Decision Date: 07/24/12 Archive Date: 07/30/12 DOCKET NO. 04-44 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a respiratory disorder (characterized as emphysema). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran had active service from March 1969 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. During the pendency of the appeal, the Veteran relocated; original jurisdiction now resides at the VA RO in Albuquerque, New Mexico. Although the Veteran initially requested a Travel Board hearing when he perfected his appeal in December 2004, he failed to report for this hearing when it was scheduled in July 2007. Thus, his Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2011). In January 2008 and April 2011, the Board remanded the Veteran's claim. The VA Appeals Management Center (AMC) continued the previous denial of the claim in June 2010 and September 2011 supplemental statements of the case (SSOCs). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board observes that the September 2011 SSOC was mailed to the Veteran's last known mailing address, and was subsequently returned to VA as undeliverable. However, the Board further observes that a copy of the SSOC was mailed to the Veteran's representative, who thereafter submitted an Informal Hearing Presentation (IHP) in May 2012, and that the Veteran submitted a SSOC notice response in September 2011, acknowledging receipt of the SSOC. FINDING OF FACT The competent and probative evidence of record does not support a finding that a relationship exists between the Veteran's respiratory disorder and his military service or any incident thereof. CONCLUSION OF LAW A respiratory disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for a respiratory disorder. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in January 2008 and April 2011, the Board remanded this claim and ordered either the agency of original jurisdiction (AOJ) or AMC to obtain the Veteran's Social Security Administration (SSA) records as well as schedule the Veteran for a VA examination. The Veteran's claim was then to be readjudicated. Pursuant to the Board's remand instructions, the AMC obtained the Veteran's SSA records and associated these records with the Veteran's claims folder. Additionally, the Veteran was provided a VA examination with respect to his respiratory disorder. A report of the examination has been associated with the Veteran's claims folder. The Veteran's claim was readjudicated via the June 2010 and September 2011 SSOCs. Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (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). The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice by a letter mailed in September 2003 and notice with respect to the effective-date element of the claim, by a letter mailed in February 2008. Although the February 2008 letter pertaining to the effective-date element of the claim was provided after the initial adjudication of the claim, the Board finds that the Veteran has not been prejudiced by the timing of this letter. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the AMC readjudicated the Veteran's claim in June 2010 and September 2011 SSOCs. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes the Veteran's statements, service treatment records, SSA records, as well as VA and private treatment records. The Veteran was afforded a VA examination in October 2009 with an addendum dated June 2011. The examination report reflects that the examiner interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2011). The Veteran has been afforded the opportunity to present evidence and argument in support of his claim. Accordingly, the Board will proceed to a decision. Service connection for a Respiratory Disorder Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 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 information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). 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. See 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 respirable 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). See 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. VA O.G.C. Prec. Op. No. 04-00. 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2011). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2011). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. As noted above, in order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). With respect to element (1), the Veteran has been diagnosed with COPD and emphysema. See, e.g., a VA examination report dated in October 2009. Element (1) has therefore been demonstrated. The Board adds that the Veteran has not been diagnosed as having asbestosis. With regard to element (2), evidence of an in-service incurrence of a disease or injury, the Veteran contends that he has the current respiratory disorder due to prolonged exposure to lead paint as a result of his duties aboard ship while on active duty, to include scrapping the ship. Further, in a VA examination dated in June 2004, the examiner reported that the Veteran had been exposed to asbestos while working in a brake shop, and to fumes of gas, diesel and naphtha, and to lead based enamel paint while in service. The Veteran's DD 214 indicates that his military occupational specialty (MOS) was a seaman recruit. Given the nature of the Veteran's duties, the Board recognizes that it is conceivable that the Veteran was exposed to asbestos and other chemicals during his military service. The Veteran's service treatment records, however, show no complaints, treatments or diagnoses of any respiratory problems. Notably, his separation examination report reflects no respiratory abnormalities. The chest x-ray taken at the Veteran's discharge from service was normal. Turning to element (3), nexus, the evidence demonstrates that the Veteran's currently diagnosed respiratory disorders are unrelated to his military service, to include asbestos exposure. The only competent medical opinion of record concerning the issue of medical nexus is the report of the October 2009 VA examiner. Specifically, the VA examiner considered the Veteran's in-service exposure to chemicals including asbestos. After examination of the Veteran and consideration of his medical history, the VA examiner rendered diagnoses of COPD and emphysema and concluded that it is "less likely as not that [the Veteran's] emphysema is secondary to exposure to paint vapors and fumes during his service time in the Coast Guard." The examiner's rationale for his conclusion was based on his finding that imaging of the Veteran's chest indicated no evidence of asbestosis, and that it was therefore "less likely as not that [the Veteran] has a history of or a diagnosis of asbestosis." The October 2009 VA examination report and June 2011 addendum appears to have been based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Additionally, the October 2009 VA examiner's opinion appears to be consistent with the Veteran's medical history which is absent for any symptomatology of a respiratory disorder for several years after service. The Veteran has not submitted any competent medical opinion to contradict the VA examiner's opinion. As was explained in the VCAA section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) (it is the claimant's responsibility to support a claim for VA benefits). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including difficulty breathing and coughing), has presented no clinical evidence of a nexus between his respiratory disorders and his military service, to include asbestos exposure. The Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to a particular disability. Furthermore, the Veteran is not competent to opine on matters such as the etiology of his current respiratory disorders. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a medical nexus between his respiratory disorders and his military service, to include asbestos exposure, to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2011) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of a medical nexus. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. The Board notes that the Veteran appears to be contending that he has had a respiratory disorder continually since service. However, the first postservice evidence of complaint of, or treatment for, a respiratory disorder is dated in May 1980, when the Veteran sought treatment for chest pain. See a private treatment report from S.G., M.D., dated in May 1980. This was more than five years after the Veteran left service in March 1973. Notably, at that time, a chest X-ray revealed normal findings. While the Veteran is competent to report his respiratory symptomatology over the years since service, the Board notes that a respiratory disorder was not reported at the time of his service discharge. Moreover, there is no competent medical evidence that the Veteran complained of or was treated for a respiratory disorder for many years after his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition). The Board finds any assertion by the Veteran that there has been a continuity of symptomatology dating to service is not credible in light of the objective findings noted above, in particular normal chest X-ray findings in May 1980. Therefore, continuity of symptomatology since service is not demonstrated. Accordingly, element (3), regarding nexus, is not met, and the Veteran's claim must be denied on this basis. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a respiratory disorder, claimed as emphysema. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for a respiratory disorder (characterized as emphysema) is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs