Citation Nr: 1235220 Decision Date: 10/11/12 Archive Date: 10/17/12 DOCKET NO. 11-17 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disorder (COPD) including as due to asbestos exposure. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active duty military service in the Navy from April 1943 to July 1946 and from April 1951 to March 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating determination by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Lincoln, Nebraska. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The competent and credible evidence fails to demonstrate that the Veteran's COPD is related to his active duty service including as due to asbestos exposure. 2. The competent and credible evidence demonstrates that the Veteran has a lung abnormality of pleural plaques that are due to his asbestos exposure during active duty. CONCLUSIONS OF LAW 1. COPD was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred, to include as due to in-service exposure to asbestos. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.316 (2011). 2. A lung abnormality, characterized as pleural plaques, was incurred in service due to in-service exposure to asbestos. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.316 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2011); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letter dated in December 2010 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, this letter advised the Veteran what information and evidence was needed to substantiate the claim decided herein. This letter also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The United States Court of Appeals for Veterans Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The December 2010 letter provided this notice to the Veteran. The Board observes that the December 2010 letter was sent to the Veteran prior to the March 2011 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this regard, the notice provided in the December 2010 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b) (2011), and Dingess, supra. Additionally, the Board notes that the Veteran was provided notice with regard to the evidence necessary to show that he was exposed to asbestos. The Board notes that this information was provided in the December 2010 letter. Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2011). In this regard, the Veteran's service treatment records, VA treatment records, and private treatment records are associated with the claims folder. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2011); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded a VA examination in March 2011. 38 C.F.R. § 3.159(c) (4). To that end, 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 opinion obtained in this case is more than adequate, as it is predicated on a full reading of the medical records in the Veteran's claims file. It considers all of the pertinent evidence of record, and the statements of the Veteran, and provides a complete rationale for the opinion 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) (2011). Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2011). As a general matter, service connection for a disability on the basis of the merits of such a claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2011). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011). The Court has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. See Clyburn v. West, 12 Vet. App. 296 (1999). Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a Veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 1 Vet. App. 429 (1995). The Veteran contends that he is entitled to service connection for a lung disorder, to include COPD. He attributes his lung condition to in-service exposure to asbestos. 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. VA has, however, 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. 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 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). Even if a Veteran is found not to be entitled to service connection as due to asbestos exposure, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes initially that Veteran is currently diagnosed with various lung disorders and abnormalities, including COPD and pleural plaques as evidenced in various private and VA treatment reports as well as the March 2011 VA examination. As such the Board finds that the Veteran has a current disability as required by 38 C.F.R. § 3.303. See 38 C.F.R. § 3.303. See also Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet App. 341, 346 (1999). The Board notes that the diseases typically associated with asbestos exposure do most often affect the lungs and digestive tract. While COPD is not specifically listed as part of the non-exclusive list for asbestos-related diseases, pleural plaques are a lung abnormality that is associated with asbestos exposure. As such, the Board will address each lung disorder separately. The Veteran contends that he was exposed to asbestos while serving aboard ships in the Navy during World War II. While the Veteran's record does not specifically indicate any exposure to asbestos, it is known that many of the Naval ships used during World War II contained asbestos. As such, it is likely the Veteran was exposed to asbestos during active duty service. Moreover, the Veteran's various military occupational specialties (MOS), including metalsmith and fireman would have likely placed him in the engine room of a ship where asbestos exposure was more probable. While a metalsmith was considered to have minimal asbestos exposure, it was highly probable that a fireman had asbestos exposure. See Department of Veterans Affairs Memorandum regarding Asbestos Claims dated May 2002; see also Veteran's Personnel Records Navy Occupation and Training History (noting specifically, transfer of rank from Seaman (SN) to Fireman (FN)). There is no medical evidence that the Veteran suffered from any lung disorder while in service. In this regard, the Board notes that the Veteran's April 1943 entrance examination, July 1946 separation examination, March 1951 reenlistment examination, and his March 1952 separation examination list the Veteran's respiratory system as normal. Indeed, the Veteran's service treatment records are devoid of any mention of any complaint or diagnosis of a lung disorder. Therefore there is no evidence of any in-service diagnosis of a chronic lung disorder. With regard to post-service occupation, the March 2011 VA respiratory examination noted only that the Veteran had not worked in quite some time. The Board observes, however, that the Veteran's March 1951 report of medical history noted that his usual occupation was sheet metal worker. Additionally, both the Veteran's March 2011 VA audiology and VA posttraumatic stress disorder examinations noted that the Veteran was a sheet metal worker after service. The Board notes that sheet metal worker could fall under the category of manufacture of roofing and flooring materials and is therefore an occupation that could have placed the Veteran in a higher incidence of asbestos exposure. As previously noted, the Veteran was afforded a VA examination in March 2011. After reviewing the Veteran's service, VA, and private treatment records, the examiner diagnosed the Veteran with COPD and noted that the Veteran had a long history of COPD. The examiner opined that the Veteran's COPD did not appear to be related to any asbestos exposure in service. Indeed he noted that asbestos exposure did not cause COPD. The examiner then stated that the cause of the Veteran's COPD was more likely the Veteran's more than 60 year history of extensive smoking. As such, the Board finds that the March 2011 VA examiner provided a negative nexus with regard to the Veteran's claim for direct service connection for COPD as well as service connection based on in-service asbestos exposure. 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. See VAOGCPPREC 04-00. As such the Board finds that the Veteran is not entitled to service connection for COPD as due to asbestos exposure. Additionally, with no evidence of an in-service diagnosis of lung disorder and no link between the Veteran's currently diagnosed COPD and his active duty service, service connection is denied on a direct basis as well. As noted above, however, the Veteran was not only diagnosed with COPD, but additional lung abnormalities were diagnosed as well including pleural plaques. The Board notes that the condition of pleural plaques is to be rated as analogous to asbestosis. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (i). While the March 2011 VA examiner stated that the appearance of pleural plaques on previous CT scans were likely incidental findings and caused no physical complaints or symptoms, the Board again notes the September 2010 report of the CT scan which noted that the emphysematous changes of the chest, more pronounced in the apices with pleural-based calcification of the lung bases suggested previous asbestos exposure. As previously noted, pleural plaques are a lung abnormality that is associated with asbestos exposure. As such, the Board finds there is a positive nexus with regard to the pleural plaques evident in the Veteran's lungs and asbestos exposure. While the Board notes there is not a presumption associated with asbestos exposure and as such medical evidence of a link between asbestos exposure in service and a current disability is necessary, the Board finds the above competent and credible medical evidence linking the Veteran's current lung abnormality of pleural plaques to asbestos exposure coupled with the highly probable likelihood of asbestos exposure associated with the Veteran's MOS of fireman to be at least in equipoise with regard to a grant of service connection. See Dyment, supra. As such, the Board finds service connection is warranted for a lung abnormality, characterized as pleural plaques, as due to asbestos exposure during active duty. As noted above, service connection is generally warranted only if there is competent evidence of a causal relationship between any present disability and service. See Shedden, supra; 38 C.F.R. § 3.303(d). The Board acknowledges that lay evidence may be sufficient to establish a causal relationship between a current disability and service. Davidson, supra. In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn supra. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board must assess the credibility and weight of all the 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 claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). 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. In this instance the Board notes the Veteran's contentions that his COPD is related to asbestos exposure during active duty; however, the record is silent with regard to post-service complaints regarding COPD until 2006. The Board notes that the initial complaint associated with COPD was almost 56 years after the Veteran's separation from active duty service. The Board further acknowledges that with regard to continuity of symptomatology, symptoms as opposed to treatment are of primary interest and the Veteran is competent to observe breathing problems during and post service and that observation need not be recorded. However, while the Veteran is competent to provide continuity of symptomatology, as noted above, it is also necessary to show that the Veteran is credible in his assertions. In this regard, the Board observes that there is no medical evidence of record, nor does the Veteran contend that he sought medical care for COPD prior to 2006. The Board finds that it is reasonable to expect that if the Veteran had breathing problems in the intervening years, he would have sought medical treatment. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Indeed, the 56 year silence with regard to complaints of a lung disorder stands in direct contradiction to any suggestion that the Veteran's COPD is directly related to his active duty service. It therefore follows that any assertions in this regard are not credible. With regard to the Veteran's claim for pleural plaques and lack of continuity of symptomatology, the Board notes that the latent period for development of a disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of the disease. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (d). In addition to the long latency period, the Board notes the March 2011 VA examiner's note that the Veteran's pleural plaques did not cause any physical complaints or symptoms. As such, the Veteran might not have been aware of the pleural plaques in his lungs. Additionally, the Board notes that laypersons are generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). As noted above, as a lay person, the Veteran is not competent to provide evidence as to complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, his opinion is not competent with regard to a diagnosis or an assessment as to etiology. With regard to the Veteran's claim for COPD the Board finds that the lay statements as to a nexus are outweighed by the medical evidence of record which does not relate the Veteran's COPD to any incident of the Veteran's military service. However, with regard to the Veteran's claim for a lung abnormality (pleural plaques) associated with asbestos exposure, the Board finds there is competent and credible medical evidence that supports the Veteran's claim and it therefore warrants service connection. In consideration of all the above, the Board finds that while the Veteran does have a current diagnosis of COPD, there is no indication that the Veteran was diagnosed with any lung disorder in service or immediately thereafter, and no competent and probative medical evidence linking the Veteran's current diagnosis of COPD with his active duty service. As such, the preponderance of the evidence is against the Veteran's claim and service connection for COPD must be denied. However, with regard to the issue of a lung abnormality, pleural plaques, the Board notes the evidence is in relative equipoise and given the benefit of the doubt rule, the Veteran's claim must be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for COPD including as due to asbestos exposure is denied. Entitlement to service connection for a lung abnormality, characterized as pleural plaques, due to asbestos exposure is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs