Citation Nr: 1303571 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 05-40 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include emphysema and chronic obstructive pulmonary disease (COPD), claimed as due to exposure to chemical agents including asbestos. 2. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant and sons ATTORNEY FOR THE BOARD A Cryan, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in March 2005 and July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board remanded the Veteran's claim of entitlement to service connection for headaches for additional development in June 2008. The Board remanded both issues for additional development in December 2009 and January 2011. In March 2008 and October 2010, the Veteran testified at Board hearings conducted by two different Veterans Law Judges (VLJs). Transcripts of both hearings have been associated with the claims file. The Board notes that VLJs who conduct hearings must participate in making the final determination of the claims involved. 38 U.S.C. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three members. 38 U.S.C.A. § 7102(a) (West 2002). Thus, when an appellant has had a personal hearing before two different VLJs during the appeal and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held and the appeal is then ready for appellate review. The United States Court of Appeals for Veterans' Claims has interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379 (2012). In an October 2012 letter, the Veteran was offered the opportunity to testify at a hearing before a third VLJ. The Veteran submitted a response to the letter in November 2012 and indicated that he did not wish to appear for a third hearing. Therefore, the Board finds that there is no hearing request pending at this time and no need for any additional hearing. 38 C.F.R. § 20.700(a) (2012). The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss was raised in correspondence dated in July 2009. However, that issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ) and it is therefore referred to the AOJ for appropriate action. The issue of entitlement to service connection for headaches is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDING OF FACT The Veteran does not have a respiratory disorder, to include emphysema and COPD related to his active service. CONCLUSION OF LAW The Veteran does not have a respiratory disorder, to include emphysema and COPD that is the result of disease or injury incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he has a respiratory disorder related to his active service in the Navy. Specifically, he claims that his respiratory disabilities are secondary to his exposure to asbestos and other chemicals to which he was exposed in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under relevant case law, lay observation is competent. 38 C.F.R. § 3.303(b) (2012). In the alternative, the chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has that condition. The evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2012). Generally, service connection requires (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 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A Veteran who served in the active military, naval, or air service after December 31, 1946, is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1132 (West 2002). Only those conditions recorded in examination reports can be considered as noted and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b) (2012). Determination of the existence of a pre-existing condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion or a later medical opinion based upon statements made by the Veteran about the pre-service history of his condition. Miller v. West, 11 Vet. App. 345 (1998); Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). No compensation shall be paid if the disability resulting from injury or disease in service is a result of the Veteran's willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110 (West 2002). Direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and not the result of the Veteran's willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 C.F.R. § 3.301 (2012). There has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, and VA has not promulgated any regulations, but there are some procedural guidelines. McGinty v. Brown, 4 Vet. App. 428 (1993). In May 1988, VA issued a circular on asbestos-related diseases that provided some guidelines for considering compensation claims based on exposure to asbestos, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular). The DVB Circular was rescinded by the Director of the VA Compensation and Pension Service in September 1992, and, at that time its contents were added as paragraph 7.68 (now paragraph 7.21) of Part VI of the VA Adjudication Procedure Manual, M21-1 (Manual M21-1). The provision does not give rise to enforceable substantive rights and does not create a presumption of exposure to asbestos. Dyment v. West, 13 Vet. App. 141 (1999). According to Manual M21-1, Part VI, paragraph 7.21, the most common disease related to asbestos exposure is interstitial pulmonary fibrosis (asbestosis), and clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. In addition, it is stated that asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. In paragraph 7.21 it is also noted that cancers of the larynx and pharynx and the urogenital system (except the prostate) are also associated with asbestos exposure. The Veteran's service medical records show that the Veteran reported tuberculosis on a report of medical history form prepared with his entrance examination dated in May 1971. Clinical evaluation of the lungs and chest was normal at the Veteran's May 1971 entrance examination. In May 1972, the Veteran reported deep chest pain on the left side approximately twice a week with shortness of breath when pain is present for approximately two years. The Veteran was noted to have had a positive PPD and the Veteran reported tuberculosis at birth. X-rays were within normal limits. The Veteran's January 1976 separation examination shows that a clinical evaluation of the Veteran's chest and lungs was normal. Unlabeled private treatment reports show a diagnosis of bronchitis in January 1990. An October 1990 VA examination shows that evaluation of the respiratory system was normal. The Veteran was assessed as a healthy 37 year old with a past history of alcoholism. Associated with the claims file are voluminous private treatment reports from Olympic Medical Center, S. Kriebel, M.D., Forks Community Hospital, Sophie Trettevick Indian Health Center, Indian Health Services, and Neah Bay Health Clinic which variously show treatment for hemoptysis, bronchitis, pneumonia, hypoxia, pneumonitis, emphysema, and COPD. The records show that the Veteran is a long time smoker. The records do not show treatment for COPD prior to January 2003 at which time the Veteran was noted to have a 33 year history of smoking. Emphysematous blebs were noted on a May 2004 computed tomography (CT) of the chest. A January 2004 pulmonary consultation from R. Corley, M.D., of Coastal Medical Group shows that the Veteran was examined for hemoptysis. The Veteran was noted to have known tuberculosis exposure although it was unclear whether the Veteran had active tuberculosis as an infant and positive PPD with a long history of tobacco smoking with significant hemoptysis. Dr. Corley adamantly recommended that the Veteran quit smoking. The Veteran was seen for a followup for hemoptysis in February 2004. Associated with the claims file is a statement from Dr. Kriebel dated in August 2006. Dr. Kriebel opined on a more probable basis that the Veteran's COPD was related to asbestos exposure in the Navy and his introduction to cigarettes by the Navy. Dr. Kriebel also indicated in an October 2008 statement that the Veteran had been his patient since June 2007 and carried a diagnosis of severe COPD with episodes requiring home care. Associated with the claims file is a statement from I. Hwang, M.D., of Sophie Trettevick Indian Health Center dated in August 2006 which shows that the Veteran carried a diagnosis of COPD. Dr. Hwang noted that the Veteran reported a history of exposure to numerous aerosols and airborne particulates during his service in a shipyard. He reported some respiratory symptoms in service but Dr. Hwang indicated that she did not have access to the Veteran's health record. Dr. Hwang opined based on the Veteran's history and history of tobacco use that began in service, it was reasonable to conclude that his condition was likely caused by or significantly contributed to by his active service. An unlabeled and unsigned statement associated with the claims file in November 2007 shows that the Veteran's emphysema has worsened predictably since the initial diagnosis and that the patient continued to smoke which exacerbated his conditions. At a March 2011 VA examination, the examiner noted that the Veteran had a forty year history of smoking at least a pack a day of cigarettes and was diagnosed with COPD in 2002 or 2003. The examiner indicated that a review the claims file and acknowledged medical opinions from Dr. Hwang and Dr. Kriebel. The examiner noted that neither physician had access to the Veteran's claims file and their opinions were not supported by rationale. The Veteran denied treatment for tuberculosis and the examiner noted that one of the Veteran's private physicians, Dr. Corley, noted in February 2004 that the Veteran had a lifelong history of positive PPD with no known treatment. Following a physical examination and chest x-rays, the examiner diagnosed the Veteran with COPD and emphysema, at least as likely as not secondary to his forty plus pack year history of smoking. The examiner noted that COPD was less likely as not due to exposure to chemical agents in service including asbestos, jet fuel, liquid oxygen, and aviation gas. The examiner indicated that based on the documentation available, she was unable to state that pulmonary symptoms started while the Veteran was in service. The examiner indicated that COPD is not usually a manifestation of asbestos exposure based on medical literature documented in UpToDate. The examiner indicated that there was no clear documentation of active tuberculosis in the Veteran and more likely he had a positive PPD history that was unrelated to COPD or emphysema. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for a respiratory disorder, to include emphysema and COPD, claimed as due to exposure to chemical agents including asbestos. As an initial matter, the Board notes that there is not clear and unmistakable evidence that tuberculosis pre-existed the Veteran's active service. 38 C.F.R. § 3.304(b) (2012). While tuberculosis was noted by the Veteran at his entrance to service, the medical records associated with the claims file do not substantiate a diagnosis of active tuberculosis at any time prior to, during, or after the Veteran's active service. Additionally, the March 2011 VA examiner specifically noted that there was no clear documentation of a diagnosis of active tuberculosis. Finally, the Veteran is not claiming entitlement to service connection for tuberculosis. Consequently, the Veteran is presumed sound at his entrance to service. Therefore, the tuberculosis positive test was either noted at service and clearly and unmistakably not aggravated by service, because active tuberculosis is not show anywhere in the record, or did not preexist service and was not incurred during service or related to any disease or injury incurred during service. In either analysis, service connection for tuberculosis is not warranted. The service medical records show that the Veteran reported left sided chest pain for two years with deep respirations in May 1972. Clinical evaluation of the Veteran's lungs was normal at his separation from service and while he was treated for an acute episode of bronchitis in January 1990, the first evidence of a diagnosis of COPD came in January 2003, twenty-seven years after the Veteran separated from service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The amount of time that passed between service and the first diagnosis of record of a chronic respiratory disorder is also evidence that weighs against the Veteran's claim. The credible medical evidence of record shows that the Veteran's respiratory disorders, diagnosed as COPD and emphysema, are more likely than not related to his long history of smoking. The Veteran's post-service treatment records show treatment for respiratory disorders and include reference to a long history of smoking and indicate that exacerbations of COPD were related to smoking. While neither Dr. Kriebel nor Dr. Hwang had access to the Veteran's claims file, both indicated that the Veteran's respiratory disabilities were related to his history of smoking which began in service. Finally, the VA examiner who did have access to the claims file found that it was more likely than not that the Veteran's COPD and emphysema were more likely related to the Veteran's history of smoking. No compensation shall be paid if the disability is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs. Furthermore, A Veteran's disability will not be considered to have resulted from disease or injury incurred in or aggravated during service on the basis that it resulted from the use of tobacco products during service. 38 U.S.C.A. §§ 1103, 1110, 1131 (West 2002). Moreover, while Dr. Kriebel opined that the Veteran's COPD was related to asbestos exposure in the Navy, that doctor provided no rationale to support that assertion. The March 2011 VA examiner thoroughly reviewed the claims file, examined the Veteran, and provided a rationale with reference to medical literature for the conclusion that the Veteran's respiratory disorders were less likely as not due to exposure to chemical agents in service including asbestos, jet fuel, liquid oxygen, and aviation gas. The March 2011 VA examiner also specifically noted that COPD was not usually a manifestation of asbestos exposure based on medical literature. The Board finds that the March 2011 VA examiner's opinion is more persuasive than the statements of Dr. Kriebel and Dr. Hwang because it was based on review of the evidence of record, consideration of those previous opinions, and provide a plausible rationale with reference to medical literature. Consequently, the Board finds that service connection is not warranted because the preponderance of the medical evidence of record is against a finding that any respiratory disorder is etiologically linked to the Veteran's active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a respiratory disorder and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a respiratory disorder, to include emphysema and COPD, claimed as due to exposure to chemical agents including asbestos is denied. REMAND A review of the claims file reveals that a remand is unfortunately once again necessary before a decision on the merits of the claim of entitlement to service connection for headaches can be reached. The Veteran's claim was last remanded to afford the Veteran a VA examination and obtain a medical opinion based on the evidence of record, including the Veteran's report of headaches since service. The Veteran was afforded a VA examination in March 2011 at which time he was diagnosed with headaches of unclear etiology. The examiner noted that it did not appear that the Veteran's headaches were migraine headaches and indicated that there was no evidence that the Veteran's headaches were related to an incident in service where fuel was sprayed in his face. The examiner indicated that she was unable to state that the Veteran's headaches were related to service without resorting to speculation. Opinions that an opinion cannot be offered without resort to speculation amount to nonevidence, neither for nor against the claim, because service connection may not be based on speculation or remote possibility. Bloom v. West, 12 Vet. App. 185 (1999); 38 C.F.R. § 3.102 (2012). Such statements from physicians are inconclusive as to the origin of a disability. Warren v. Brown, 6 Vet. App. 4 (1993); Sklar v. Brown, 5 Vet. App. 104 (1993). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Consequently, another etiology opinion should be obtained to properly adjudicate the remaining claim on appeal. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate specialist with expertise treating headaches to ascertain whether the Veteran's headache complaints are etiologically related to service. The claims file must be sent to the examiner for review and the medical report should note that review. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current complaints of headaches had their onset in service, or are related to any disease or injury incurred in or aggravated by service, to include exposure to various chemical agents, including jet fuel, liquid oxygen, and aviation gas. The examiner must consider lay statements regarding in-service occurrence of an injury and continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner is requested to comment on the clinical significance of the service medical records, to include an undated optometry consultation report that recorded complaints of occasional headaches in service; the VA examination reports dated in December 2008; the August 2010 addendum report; and the March 2011 examination report. If the specialist determines that another examination is necessary in order to render the requested opinion, the examination should be so scheduled. 2. Then, readjudicate the claim. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). F. JUDGE FLOWERS MICHAEL LANE Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs