Citation Nr: 1227885 Decision Date: 08/13/12 Archive Date: 08/21/12 DOCKET NO. 05-28 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a lung disability, to include asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had active military service from May 1960 to March 1964. This matter comes before the Board of Veterans' Appeals (Board) from a December 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in North Little Rock, Arkansas. In September 2006, the Veteran testified at a Travel Board hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of that hearing is of record. In June 2009, the Veteran stated that he did not wish another hearing before another Veterans Law Judge. This matter was previously before the Board in June 2007, October 2009, and February 2011, when it was remanded each time for further development. It has now returned to the Board for further appellate consideration. The Board finds that there has been substantial compliance with its prior remands. FINDINGS OF FACT 1. The most probative clinical evidence of record is against a finding that the Veteran has asbestosis. 2. The earliest clinical evidence of record of a chronic respiratory disability is approximately four decades after separation from service. 3. The competent credible clinical evidence of record is against a finding that the Veteran has a current lung, disability, to include asbestosis, causally related to active service. CONCLUSION OF LAW A lung disability, to include asbestosis, was not incurred in, or aggravated by, active service. See 38 U.S.C.A.§§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.159 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107(West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, and 3.326(a) (2011). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In VA correspondence dated in September 2004, VA informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. The correspondence was deficient in that it did not inform the Veteran of the criteria for assignment of a disability rating and effective date if service connection was granted; such notice was provided to the Veteran in March 2006. In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claims, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although complete notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter, and the appellant therefore, has not been prejudiced. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). Duty to assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records (STRs), service personnel records, and VA and private examination records. Additionally, the claims file contains the Veteran's statements in support of his claim, to include his testimony at a Board hearing. The Board has carefully reviewed these statements and concludes that there has been no identification of further available evidence not already of record. 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. VA examinations with opinions were obtained in February 2005 with an addendum in March 2009, and in October 2009 with an addendum in March 2011. 38 C.F.R. § 3.159(c) (4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations and opinions obtained in this case are more than adequate, as they are predicated on a reading of the pertinent medical records, to include the Veteran's history, diagnostic testing, and private opinions. The reports of the VA examination provide findings relevant to adjudicate the issue and provide a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Criteria Service connection in general Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Court set forth a two-step analysis to evaluate the competency of lay evidence. First, Board must determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury -to determine whether to grant service connection. The Board observes that this Federal Circuit decision is nonprecedential. However, see Bethea v. Derwinski, 252, 254 (1992) [a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"]. The Board believes that if Bethea applies to the utility of Court decisions, it surely applies to the utility of decisions of a superior tribunal, the Federal Circuit. Service-connection for asbestos-related diseases The Board notes there are no laws or regulations which specifically address service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1 MR, part IV, Subpart ii, Chapter 2, Section C (December 13, 2005). 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 IV, 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 IV, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (e). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The first element for entitlement to service connection is a current disability. The claims file includes clinical evidence that the Veteran has obstructive lung disease; thus, the Board finds that the first element has been met. While the Board finds that the Veteran has obstructive lung disease, the Board finds that the Veteran does not have asbestosis. The claims file contains conflicting clinical opinions as to whether the Veteran has asbestosis. An April 2000 record from Dr. R. Harron reflects his impression that the Veteran has bilateral interstitial fibrosis consistent with asbestosis. The claims file also includes correspondence from Dr. R. Harron to a law firm in which he states that he feels "within a reasonable degree of medical certainty, that [the Veteran] has asbestosis. The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guarneri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board finds that the statement by Dr. R. Harron has less probative value that the opinions of the VA clinicians. The Board notes that the Veteran testified that he was previously involved in a civil law suit regarding asbestosis and is in receipt of benefits from that lawsuit. The findings of Dr. R. Harron, which appear to have been made for litigation purposes, are less credible than those made for treatment purposes. In his statement, Dr. R. Harron stated "I feel within a reasonable degree of medical certainty, that [the Veteran] has asbestosis." As noted by the U.S. District Court for the Southern District of Texas, Dr. Harron's language is a legal standard and not a medical diagnosis. See In re Silica Products Liability Litigation, 398 F. Supp. 2d 563, 635 (S.D. Tex., 2005). Importantly, a VA clinical opinion, noted below, notes that an x-ray, upon which Dr. R. Harron apparently relied, is less sensitive than CT scans, which were negative for asbestosis. A November 2003 private medical radiology record reflects that the Veteran's lungs were clear and his heart size and pulmonary vessels were normal in appearance. The impression was a normal chest view for the Veteran's age. A private preoperative/preadmission history and physical record reflects that the Veteran reported that he had smoked two packs per day for 10 years and had quit 35 years earlier, or in approximately 1968. Upon history, the Veteran had no dyspnea, cough, sputum, wheezing, or hemoptysis. Upon examination, the Veteran's lungs were clear to auscultation and percussion bilaterally without crackles, wheezes, or rhonchi. An August 2004 VA clinical opinion reflects that upon examination, the Veteran's lungs were normal. They were clear to auscultation with no dyspnea or tenderness to palpation. There was a cough with clear mucus only. An October 2004 VA clinical record reflects he had a crackle and cough in his lungs. A February 2005 VA examination report reflects the opinion of the VA clinician that the Veteran does not have medical evidence of asbestosis of the chest. The clinician stated that it "is known that CT scans of the chest are more sensitive than chest x-rays and his recent CT scan of the chest failed to reveal any evidence of asbestosis. There is no concluding evidence of asbestosis at this time." An April 2005 private record of Dr. C.J. reflects that the Veteran reported that he has been short of breath for approximately 10 years. He had a productive cough but no blood. He was noted to be an ex-smoker who stopped approximately 30 years previously, or in approximately 1975. Prior to cessation, he smoked one to two packs a day for 20 years. Upon examination, it was noted that the Veteran's auscultation, percussion, and expansion were normal. The examiner stated that based on the Veteran's "industrial history, abnormal chest x-ray [in February 2000], and pulmonary function, I believe beyond a reasonable medical doubt that he does have evidence of asbestos related lung disease." As noted above, the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. The Board finds that the opinion of Dr. C.J., which is based, in part, on the opinion of Dr. R. Harron, has little, if any, probative value. The record does not reflect that Dr. C.J. reviewed the Veteran's x-ray, but merely relied on the findings of Dr. R. Harron, which the Board has found to lack probative value. As noted above, the evidence reflects that CT scans of the chest are more sensitive than chest x-rays. The evidence does not reflect that Dr. C.J. reviewed CT scans of the Veteran or considered the February 2005 VA examination report. A March 2009 VA examination report reflects the opinion of the examiner as follows "the preponderance of evidence obtained in the VA examination does not support a diagnosis of pulmonary asbestosis, although the veteran's pulmonary history supports a probable exposure to significant asbestos during his military career and also in civilian life afterwards. His pulmonary function tests available did not support a diagnosis of chronic obstructive lung disease or restrictive lung disease but will be reported and the results attached. In my opinion, it is less likely than not that the veteran has pulmonary asbestosis, certainly not to the degree to cause clinical symptoms." A March 2009 VA examination report addendum reflects that the Veteran's test results are consistent with chronic obstructive lung disease without significant reversible bronchospasm. The examiner opined that the results are not consistent with a restrictive defect which would be most likely as a result of fibrosis from asbestosis. In addition, VA x-rays showed no evidence of asbestos-type changes. (The Board notes that the examiner stated that based on the evidence he "would conclude that it is likely than not that the Veteran has pulmonary asbestosis"; such a statement is illogical and is clarified in the October 2009 report below.) An October 2009 VA clinical report reflects the opinion of the clinician as follows: The chest x-ray [in February 2000] had been read by a B-reader, Dr. Herron, who concurred that there were minimal changes consistent with asbestosis. However, additional x-rays have been consistently negative. The CT scan of the chest done after the examination in 2007 did not show any fibrotic changes or pleural plaques which would be consistent with asbestosis. The Veteran's most recent pulmonary function tests as noted in my addendum to the March 4 examination do show modest changes consistent with obstructive lung diagnosis. It should be noted the Veteran was a 20-year smoker. The pulmonary function tests did not show any evidence of restrictive changes which would be more likely with asbestosis." The examiner opined that it "is less likely than not that the Veteran has pulmonary asbestosis. It is unlikely that the symptoms of chronic obstructive lung disease would be secondary to asbestosis in view of the absence of any findings of asbestosis on the Veteran's chest x-ray." A March 2011 VA clinical report reflects the opinion of the clinician that, after reviewing the claims file, to include the medical record, "it is less likely than not that [the Veteran] had any type of lung disorder in the service to include COPD or restrictive lung disease. The veteran developed symptoms approximately 14 years ago when he was working at [R.A.] and I do not think his current lung disease has any relationship to the time that he spent in the service from 1960 - 1964." In cases where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Board acknowledges that the Veteran served aboard a ship in service. Even if the Veteran were exposed to asbestos in service, the competent credible evidence is against a finding that he has asbestosis. Moreover, there is no competent credible evidence of record that the Veteran has a different, or any, lung disability, causally related to active service. The Veteran's STRs are negative for respiratory complaints. A November 1962 report of medical history for replacement purposes reflects that he denied asthma, shortness of breath, chronic cough, or pain or pressure in the chest. His report of medical examination reflects that his lungs and chest were normal upon clinical examination. The Veteran's March 1964 report of medical examination for separation purposes also reflects that upon clinical examination, his lungs and chest were normal. The earliest post-service credible competent diagnosis of a lung, or respiratory, disability is approximately four decades after separation from service. Moreover, the Veteran has reported to a clinician that he first noticed shortness of breath in approximately 1995, more than 30 years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Veteran reported in November 2003 that he had previously been a smoker of two packs per day for 10 years and quit in approximately 1968 (approximately age 27). An August 2004 record reflects that he reported that he had not smoked in 30 years. An April 2005 private record reflects that the Veteran reported that he had a 10 pack year smoking history. The March 2011 VA clinical record reflects that the Veteran reported that he smoked for seven years from age 15 -22. VA received the Veteran's claim for a lung disability in 2004, approximately 40 years after separation from service. The Board finds that service connection is not warranted under 38 C.F.R. § 3.300 (2011) (service connection will not be considered for disability related to tobacco products for claims filed after June 9, 1998). Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a lung disability, to include asbestosis. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2010), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a lung disorder, to include asbestosis, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs