Citation Nr: 1227842 Decision Date: 08/13/12 Archive Date: 08/21/12 DOCKET NO. 06-13 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a chronic respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and emphysema due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty for training from December 1964 to June 1965, and on active duty from September 1966 to September 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in February 2005 and June 2005 by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for a chronic respiratory disorder, to include COPD and emphysema due to asbestos exposure. This case was previously before the Board in June 2009, when it was remanded in order to afford the Veteran a Board hearing. A hearing was scheduled in March 2010, but was cancelled. The Veteran's hearing request is deemed withdrawn. In September 2010, the Board remanded the case for further evidentiary development, including scheduling the Veteran for a VA medical examination to obtain a nexus opinion. Following this development, the denial of service connection for a chronic respiratory disorder was confirmed in a November 2011 rating decision/supplemental statement of the case. The case was returned to the Board in December 2011 and the Veteran now continues his appeal. FINDINGS OF FACT 1. The Veteran was exposed to asbestos in active duty while participating in the renovation and reconstruction of an old building structure. 2. A chronic respiratory disorder did not have its onset during active military service and the Veteran's current COPD and emphysema are not due to his exposure to asbestos in service. CONCLUSION OF LAW A chronic respiratory disorder was not incurred in active duty and the current diagnoses of COPD and emphysema are not the result of asbestos exposure during active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance of Act of 2000 (VCAA) and VA's duty to assist. With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions, or has otherwise demonstrated that there is no prejudice to the Veteran for any notice deficits. 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. In the present case, in order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). The current appeal stems from the Veteran's original claim for service connection for a chronic respiratory disorder, which was received by VA in August 2004. In response to his claim, VCAA notice letters were dispatched to the Veteran in October 2004 and March 2005. No further notification in this regard has been furnished during the course of the appeal, and the Board notes that there is a notice deficit in that the Veteran was not provided with a letter discussing how VA assigned degree of disability and the effective date of a compensation award, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, notwithstanding this deficit, the Board finds that there is no prejudicial error as this appellate decision is denying the claim being sought on appeal, and therefore the question of ratings and effective dates for an award of VA compensation with respect to this particular claim is rendered moot. Furthermore, neither the Veteran nor his representative have made any assertion that there has been any defect in the timing or content of the VCAA notification letters associated with this specific claim. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and pertinent post-service VA medical records addressing the condition of his respiratory system and his treatment for respiratory complaints for the period from 1971 - 2010 have been obtained. Additional written statements for this time period from the Veteran regarding his historical accounts of the history of his relevant symptoms and alleged in-service exposure to asbestos were also obtained and associated with the evidence. Otherwise, since the time of the return of his claims file to Board custody in December 2011, the Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the respiratory disease claim. 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. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011). Pursuant to his claim for VA compensation, the Veteran was afforded a VA medical examination of his respiratory system in October 2010, in which a nexus opinion addressing the relationship between his current respiratory diagnoses and his military service was obtained, in the context of his reported history of in-service asbestos exposure. The VA examiner conducted a thorough review of the Veteran's claims file and the examiner's nexus opinion is predicated on the Veteran's pertinent clinical history. The Board thus concludes that the present state of the evidence of record is adequate for it to fairly adjudicate the appeal. [See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007): An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one.] Therefore, remand for further examination or opinion is not needed. The Board is aware of the evidentiary requirements in developing claims for VA compensation for respiratory disease based on asbestos exposure. As noted in the Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988); VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997); and the Court decisions in Ennis v. Brown, 4 Vet. App. 523, 527 (1993); and McGinty v. Brown, 4 Vet. App. 428, 432 (1993), the M21-1 provides that when considering claims for VA compensation due to asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure in service (M21-1, Part III, par. 5.13(b); M21-1, Part VI, par. 7.21(d)(1)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure; and determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (M21-1, Part VI, par. 7.21(d)(1)). In the present case, the Board finds that the Veteran's account of exposure to asbestos during active duty is credible for purposes of adjudicating this appeal and concedes that such exposure occurred. Furthermore, the VA examination of October 2010 presents an opinion that specifically addresses the likelihood of a relationship between the Veteran's current respiratory diagnoses and his conceded asbestos exposure. Thusly, no further development in this regard is warranted. Based on the foregoing, the Board finds that the VA substantially fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of his claim for service connection for a chronic respiratory disability (including as due to asbestos exposure) decided herein and thus no additional assistance or notification is required in this regard. The Board further finds that the development conducted pursuant to the remand of September 2010 is in substantial compliance with the Board's directives contained within. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thusly, the Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. Factual background and analysis: Entitlement to service connection for a chronic respiratory disorder, to include COPD and emphysema due to asbestos exposure. Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (2011). With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307 (2011)) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of respiratory symptoms in service will permit service connection for a chronic respiratory disorder, first shown as a clear-cut clinical entity, at some later date. For the showing of 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 disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2011). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2011). Additionally, for veterans such as the current appellant, who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as bronchiectasis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-98. When a veteran seeks service connection for a disability, VA is required to analyze and evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records; the official history of each organization in which the veteran served; the veteran's military records; and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a) (2010). In McGinty v. Brown, 4 Vet. App. 428, 432 (1993), the 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 VA promulgated any regulations. 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), which provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The Board notes that the DVB Circular was subsumed verbatim as § 7.21 of VA Manual ADMIN21 (M21-1). Subsequently, VA has reorganized and revised this manual into its current electronic form M21-1MR. While the form has been revised, the information contained therein has remained the same. "Asbestosis is a 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. Another similar definition of pneumoconiosis is "a condition characterized by permanent deposition of substantial amounts of particulate matter in the lungs, usually of occupational or environmental origin." Dorland's Illustrated Medical Dictionary, 1315 (28th ed., 1994). With asbestos-related claims, VA must determine whether military records demonstrate asbestos exposure during service, and if so, determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(h). VA must also ensure that proper development of the evidence is accomplished to determine whether or not there is pre-service and/or post-service asbestos exposure. Id. The most common disease caused by exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, and mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(b). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(e). 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 and pipe products, military equipment, etc. M21-1, Part VI, Subpart ii, Chapter 2, §C(9)(f). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos-related claim. See VAOPGCPREC 4-2000. VA must ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. Dyment v. West, 13 Vet. App. 141 (1999); Nolen v. West, 12 Vet. App. 347 (1999); see also VAOPGCPREC 4-00; 65 Fed. Reg. 33422 (2000). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102 (2011). The Veteran contends that he currently suffers from a chronic respiratory disability as a result of exposure to asbestos while involved in the construction of an enlisted men's club at Camp Pendleton during the last part of his second period of active service, between January - September 1970. The Veteran described being involved with removal of asbestos tiles from an old pre-existing structure upon which the new enlisted men's club was to be built. For purposes of adjudicating the current appeal, the Board finds the Veteran's account of in-service asbestos exposure to be credible and thus factually concedes that such exposure occurred. Post-service, the Veteran reported that he was employed as a mechanic (but did not indicate that he was a brake mechanic, such that exposure to asbestos from brake shoes could be inferred) and in the manufacture of pre-fabricated roofing that did not involve exposure to asbestos. The Veteran's service treatment records show that the Veteran reported himself to be a lifelong tobacco user as early as June 1968. The records also show normal clinical findings on all chest X-rays and examinations of his respiratory system during both periods of active duty, on separation examination from his last period of service in September 1970, and on post-service VA medical examination in January 1971. The Veteran's post-service medical records show a long history of tobacco consumption through smoking at the rate of one pack of cigarettes per day. VA records dated from 2002 - 2010 show diagnoses of severe COPD, emphysema, bronchitis, and pneumonia, with notations of a history of asbestos exposure per the Veteran's account. In October 2010, the Veteran underwent a VA respiratory examination that was conducted by a physician who had reviewed the Veteran's claims folder and relevant clinical history in its entirety in conjunction with the examination. The Veteran gave a history of shortness of breath with onset 1969-71. He noticed he would get more short of breath while playing basketball and while doing physical fitness tests. Following a thorough clinical examination, which included extensive medical imaging studies of his lungs and also a pulmonary function test (PFT), the Veteran was diagnosed with COPD, bronchitis, and bullous emphysema, the latter manifested by atelectasis, bronchiectasis, pleural thickening, and calcified granuloma scarring. The PFT report revealed findings consistent with very severe obstructive lung and airway disease, but "no evidence of restrictive lung disease as would be seen with asbestosis." Citing to established clinical studies addressing the correlation between asbestos exposure and respiratory pathology, the examining physician presented the following commentary and opinion: There is abundance of [clinical] evidence to support a smoking history compatible with his pulmonary impairment. The Veteran worked [post-service] as a mechanic and in the manufacture of pre-fabricated roofing. He did not work with asbestos during this time. He is a lifelong smoker. His smoking history is sufficient to explain his obstructive impairment. The [Veteran's] condition/disability [of] shortness of breath is not caused by or a result of in service asbestos exposure. Rationale for opinion given: [The veteran] worked with asbestos-containing tiles at some point while stationed in California at Camp Pendleton from approximately [June 1969] to [April 1970]. [He] removed the tiles during a building use conversion. This represents a small cummulative [sic] asbestos exposure. There are no other clinically significant occupational exposures reported. Dust would not cause this level of pulmonary obstruction. [The Veteran's pulmonary] symptoms cannot be attributed to asbestos exposure. The onset of his symptoms in 1970 occurred well before the latency period (10 to 20 years) of asbestos-related lung disease. He has a productive cough, as is seen in chronic bronchitis, not asbestosis. There are no radiographic changes which can be attributed to asbestos exposure that would cause his symptoms. His radiographs and [computerized tomography scan] show bullous emphysema and evidence of a remote granulomatous lung infection. The pleural thickening is non-specific and would not cause his shortness of breath. There are no calcifications [present that are consistent with] benign asbestos-related pleural plaques. [The Veteran] did not have any known infections in service. What is more, he has a more likely explanation for his current shortness of breath: COPD/emphysema. His PFT's show a very severe obstructive impairment. This is not caused by asbestos. There is no evidence provided of any other in-service exposure that would have caused this extent of obstructive lung disease. The other pulmonary findings on radiograph (right lower lobe scar and calcified granulomas) would not cause the obstructive pulmonary symptoms he is experiencing and these findings are not caused by his exposure to floor tile asbestos for a short period. Similar exposures to asbestos-containing floor tiles over a lifetime would not cause this extent of lung involvement. [Emphasis added.] The type of asbestos used in floor tiles is chrysotile. . . [and] it accounts for 95% of the asbestos used in [the United States]. The other type of asbestos is amphibole [whose use in the United States is] less prevalent. . , [but which] is more pathogenic than chrysotile, especially in terms of the increased risk of malignant pleural tumors (mesothelioma). Therefore, [the Veteran's] risk of asbestos related lung disease is vanishingly small and he was not exposed to the amphibole form of asbestos. Certainly his current lung condition is less than 50% likelihood due to in-service asbestos exposure. The Board has considered the facts of the case, as discussed above, and finds that even conceding the Veteran's in-service exposure to asbestos, the entirety of the objective medical evidence supports the factual conclusion that the chronic respiratory diseases currently afflicting the claimant (i.e., COPD, bronchitis, and bullous emphysema) cannot be clinically connected to his periods of military service. The Veteran's service treatment records show no abnormal findings on clinical assessment of his lungs and pulmonary system for either period of active duty, much less onset of the aforementioned diagnoses. Post-service medical records show normal pulmonary findings on medical examination in January 1971. Although his currently diagnosed respiratory diseases include bronchiectasis associated with bullous emphysema, the clinical record does not objectively demonstrate the presence of bronchiectasis manifested to a compensable degree of impairment within one year following the Veteran's separation from his last period of active duty in October 1970, such that service connection for bronchiectasis could be allowed on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. The Veteran is competent to report his own history of onset of his perceivable symptoms. In certain circumstances, such statements may be sufficient in and of themselves to provide a nexus between service and a claimed disability manifested by such symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, to the extent that he asserts that his report of symptoms such as chronic shortness of breath during active duty is evidence in its own right demonstrating onset of his current pulmonary diagnoses in service, as he is shown by the evidence to have been engaged throughout his life in a non-medical vocation and to have never received formal medical training in pulmonary medicine, he therefore lacks the competence to state that his perceived respiratory symptoms in service represented manifestations of his currently diagnosed respiratory disabilities. He is furthermore not competent to present commentary and opinion on matters regarding their medical causation and etiology. His statements in this regard are thus entitled to no probative weight. See Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board assigns significant probative weight to the October 2010 nexus opinion of the VA examiner, who presented an extensive and very detailed rationale supporting his clinical conclusion that the Veteran's conceded in-service exposure to asbestos was far too limited to be etiologically associated in any way to his presently diagnosed pulmonary diseases. The examiner's nexus opinion further stated that the Veteran's current pulmonary diagnoses and the clinical findings obtained on medical imaging studies were completely inconsistent with the known pathologies that have been established by medical science as being typically associated with asbestos exposure. Specifically, the Veteran's current pulmonary diagnoses represent obstructive lung disease, whereas respiratory impairment associated with asbestos exposure is due to restrictive lung disease. The examiner also stated that the type of asbestos to which the Veteran was likely exposed (i.e., chrysotile asbestos) was the less pathogenic of the two possible asbestos types prevalently used in the United States and thus it was less likely as not that such exposure resulted in his current respiratory disabilities. The examiner's opinion was that the likely etiology of the Veteran's lung disease and chronic respiratory impairment was his long-term and heavy tobacco use, for which VA does not provide compensation. Thusly, in view of the foregoing discussion, the Board must deny the Veteran's claim of entitlement to service connection for a chronic respiratory disorder, to include COPD and emphysema due to asbestos exposure. Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a chronic respiratory disorder, to include COPD and emphysema due to asbestos exposure, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs