Citation Nr: 1306005 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 08-22 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to exposure to asbestos or as due to a respiratory disorder resulting from exposure to asbestos. 2. Entitlement to service connection for bronchitis or other respiratory disorder, other than service-connected asthma with interstitial lung disease, to include as secondary to exposure to asbestos or as due to a respiratory disorder resulting from exposure to asbestos. 3. Entitlement to an initial evaluation in excess of 10 percent for disability resulting from asthma with interstitial lung disease due to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from January 1977 to December 1980, followed by periods of reserve service through 1986. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Pittsburgh, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). During the pendency of this appeal, a 10 percent initial evaluation was assigned for disability resulting from asthma with interstitial lung disease due to asbestos exposure. Following the August 2011 communication which advised the Veteran of this grant, the Veteran disagreed in September 2011 with the assigned initial evaluation. The Veteran is entitled to a statement of the case (SOC) addressing his disagreement. See Manlincon v. West, 12 Vet. App. 238 (1998). In September 2009, during the course of the appeal, the Veteran appeared at a hearing at the RO before the Veterans Law Judge whose signature appears at the end of this decision. In July 2012, the Veteran requested an extension of time to present evidence disclosing a current diagnosis of asbestosis. The extension of time was granted, and has now expired. No additional evidence or argument not already of record was received. Appellate review may proceed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The claims of entitlement to service connection for a respiratory disorder other than service-connected asthma with interstitial lung disease, and for an initial evaluation in excess of 10 percent for disability resulting from asthma with interstitial lung disease, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDING OF FACT The medical evidence and opinions of record establish that the Veteran's sleep apnea was not manifested during his service, and is not related to his service, or to exposure to asbestos during service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he is entitled to service connection for sleep apnea. Duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). As to claims for service connection, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the veteran was notified of the evidence necessary to substantiate his claim for service connection, and advised of the evidence he was expected to provide and the evidence that VA was responsible to obtain, by letters issued in 2006 and 2007, and in April 2010 and May 2010. The veteran's responses to these letters establish that he understood his responsibility and VA's responsibility to obtain evidence and establish that he understood what types of evidence he might provide to meet the criteria for service connection. The notices also included information about assignment of disability ratings and effective dates when an award of benefits is granted. Dingess, supra. In addition, the Board notes that the Veteran is represented. The Veteran's representative has submitted several detailed arguments on the Veteran's behalf. The Veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. Correspondence from the Veteran and his representative establishes that the Veteran has had a full and fair opportunity to submit or identify any evidence which might be relevant to his claims for service connection decided herein. The duty to notify the Veteran as to the claim for service connection for sleep apnea has been met; to the extent that there may have been any defect in the notices to the veteran, the burden of prejudicial error has been overcome by the evidence of the Veteran's demonstrated actual knowledge of the evidence needed. Duty to assist Next, VA has a duty to assist the veteran in the development of the claim decided herein. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Veteran was afforded VA examinations, including, most recently in March 2011. Medical expert opinion was obtained by the Board in 2012. The Veteran has identified and submitted private clinical evidence. Additionally, evidence as to the circumstances of the Veteran's service was obtained. The Veteran testified at a hearing before the Board in September 2009. The Veteran submitted a July 2012 request for an extension of time in which to present additional private evidence, but no additional evidence has been received. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim addressed in the decision below. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection Service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be awarded for a "chronic" condition when a disease defined by statute or regulation as a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307, and the veteran presently has the same condition. No presumption is applicable for service connection for sleep apnea. Service connection may be granted when a disease manifests itself during service (or during the presumptive period) but is not identified until later, there is a showing of continuity of symptomatology after discharge, and medical evidence relates the symptomatology to the veteran's present condition. 38 C.F.R. § 3.303; see Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible). Facts and analysis The Veteran's service treatment records were first requested by VA in 1986. At that time, an enlistment physical (Volume II of the claims files) was located. The Veteran has provided a report of examination conducted in December 1980. That examination report reflects that the Veteran had cardiovascular abnormalities. No other official service treatment records were located. Additional requests were made for the Veteran's service treatment records, but no records were located. The Veteran was advised in conjunction with this claim that his service treatment records were unavailable. Service personnel records show that, after completion of recruit training in 1977 in Great Lakes, Illinois, the Veteran served on board the USS PIEDMONT from July 1977 to December 1980. During reserve component service the Veteran was assigned to the USS GLOVER. Information about the USS PIEDMONT has been associated with the claims file. Reserve service clinical records dated through 1986 reflect that the Veteran was in an asbestos surveillance program. The Veteran has provided earnings records which reflect that he continued to earn retirement points and was paid for reserve component service through 1990. The Veteran was awarded disability benefits by the Social Security Administration (SSA) in 2008 based on medical evidence of rheumatoid arthritis, degenerative disc disease of the lumbar spine, chronic obstructive pulmonary disease (COPD), asthma, chronic bronchitis, allergies, and obstructive sleep apnea, among other medical disorders. A complete copy of the voluminous medical evidence associated with the SSA disability determination is contained in volume I of the claims file. The Veteran submitted evidence regarding his employment at Bethlehem Steel Company and a 1993 chest x-ray. The Veteran testified that he was first advised in 1993 that he had asbestosis and plaque in the lungs due to exposure to asbestos. The Veteran testified that he worked at a mining repair company, a truck welding company, and then at General Dynamics after service. The Veteran submitted a May 2009 private medical statement from G.M.Z., MD, who provided an opinion that radiologic examination of the Veteran's lungs in 1993 showed asbestosis. Dr. Z. also stated that a diagnosis of asthma was confirmed in 1993. The Veteran underwent VA examination in March 2011. The examiner concluded that the Veteran had interstitial lung disease (pulmonary fibrosis), which was secondary to asbestos exposure and that asthma was precipitated by his occupational circumstances in service. The examiner concluded that the Veteran's intermittent bronchitis and sleep apnea were unrelated to his military service, were not manifested in service, and were unrelated to his service-connected asthma or exposure to asbestos. The reviewer explained that sleep apnea diagnosed in 1997 had not increased in severity beyond the expected natural progression of the disorder. In February 2010, the Board obtained additional expert opinion. The reviewer concluded that the Veteran's sleep apnea was not caused by, related to, or aggravated, by the Veteran's service-connected asthma or exposure to asbestos. 1. Claim for service connection for sleep apnea The March 2011 VA examination and February 2012 opinion establish, by a preponderance of the evidence, that the Veteran's sleep apnea was not caused by, related to, or aggravated, by the Veteran's service-connected asthma or exposure to asbestos. These opinions are supported by review of the clinical records and by explanation of the underlying rationale. As such, these opinions are quite persuasive. There is no medical evidence that the Veteran's sleep apnea is related to his service or is secondary to or aggravated by service-connected asthma or exposure to asbestos. Dr. Z.'s private May 2009 opinion, for example, does not address the Veteran's diagnosis of sleep apnea or the etiology of such disorder. Similarly, an April 2010 opinion from F.C.S., MD, does not address the Veteran's diagnosis of sleep apnea or the etiology of such disorder. The Board is unable to find any medical opinion in the voluminous SSA records which links the Veteran's current diagnosis of sleep apnea to his service or to in-service exposure to asbestos. The Board has considered the Veteran's testimony at his 2009 Board hearing. The Veteran testified that Dr. L., who treated him for joint problems, and Dr. H. had told him that his sleep apnea was related to his exposure to asbestos. Records from Dr. L., associated with the Altoona Arthritis and Osteoporosis Center, are associated with Volume VI of the claims file. Records of Dr. L. are also included in the voluminous records underlying the SSA decision. The records of Dr. L. associated with the claims file reflect that Dr. L. noted that a diagnosis of OSA (obstructive sleep apnea) had been assigned, but Dr. L.'s records do not include discussion of the etiology of sleep apnea. Similarly, records of Dr. A.F.H. are associated with the claims file but do not include discussion of the etiology of sleep apnea. Although the Veteran testified that his physicians, especially Dr. L. and Dr. H. told him that sleep apnea and other disorders were due to his exposure to asbestos, his testimony is not supported by the records provided by those physicians. The Veteran's testimony is of less weight and persuasive value, even if assumed competent, than the 2011 and 2012 opinions addressing the likelihood of an etiologic link between the Veteran's service, or any incident thereof, to include exposure to asbestos, to a current diagnosis of sleep apnea. The preponderance of the evidence is against the claim. There is no reasonable doubt which may be resolved in the Veteran's favor. The claim must be denied. ORDER The appeal for service connection for sleep apnea, to include as secondary to exposure to asbestos or as due to a respiratory disorder resulting from exposure to asbestos, is denied. REMAND The Veteran has been granted service connection for asthma with interstitial lung disease. Therefore, his current claim for service connection for a respiratory disorder, to include bronchitis, is for a disorder or disorders other than asthma with interstitial lung disease. In his July 2008 substantive appeal, the Veteran contends that, since SSA found that he had bronchitis and COPD, VA should also find that he had those disorders, and find that the disorders are due to exposure to asbestos. The record establishes that the Veteran's exposure to asbestos causes pleural thickening consistent with asbestos-related scar tissue. See April 2010 opinion, F.C.S., MD. The VA examiner who provided the favorable March 2011 opinion stated that the Veteran had interstitial fibrosis, and discussed the findings of plaquing. The Veteran contends in particular that he should be granted service connection for asbestosis. VA procedures state that the most common disease caused by exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). VA Adjudication Procedure Manual, M-21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M-21MR). It is not clear to the Board whether the Veteran has been granted service connection for the plaquing that the Veteran contends is due to his exposure to asbestos. Additional medical development defining the findings included in the grant of service connection would be helpful. The Veteran contends that he has respiratory disorders other than asthma, to include COPD and bronchitis, and that these disorders are due to or aggravated by his service-connected exposure to asbestos. Further medical evidence to address this contention is required. As noted above, during the pendency of this appeal, a 10 percent initial evaluation was assigned for disability resulting from asthma with interstitial lung disease due to asbestos exposure. The Veteran disagreed in September 2011 with the assigned initial evaluation. The Veteran is entitled to a statement of the case (SOC) addressing his disagreement. See Manlincon v. West, 12 Vet. App. 238 (1998). Accordingly, the case is REMANDED for the following actions: 1. Advise the Veteran to submit in writing any clinical opinions that he has a respiratory disorder other than asthma which was incurred during or results from him military service, or has been chronic since service, or is due to or aggravated by the Veteran's exposure to asbestos is service. 2. Obtain current VA clinical records. 3. Afford the Veteran an opportunity to identify or submit non-VA clinical records. Obtain any identified records, with the Veteran's consent, as appropriate, or advise the Veteran that it is his responsibility to submit them. 5. Issue a SOC addressing the Veteran's claim of entitlement to an increased initial rating for asthma with interstitial lung disease, currently evaluated as 10 percent disabling. Advise the Veteran when the time allowed for perfecting a timely substantive appeal of this claim expires. If the Veteran perfects his appeal by submitting a timely and adequate substantive appeal, then the RO should return the claim to the Board for the purpose of appellate disposition, if the claim remains denied. 4. Following completion of the above, afford the Veteran VA examination of the lungs. The claims folder must be made available to the examiner in conjunction with the examination. All indicated studies should be conducted. All pertinent pathology should be noted in the examination report. In particular, the examiner should review and discuss: service treatment records and post-service records related to the lungs, including the report of March 2011 VA examination and private May 2009 and April 2010 opinions. After all relevant evidence in the claims file is reviewed, the appropriate VA examiner(s) should offer an opinion as to the following: (a). Assign diagnoses for each respiratory disorder other than asthma with interstitial lung disease. (b). Assign a date of onset for each lung disorder other than asthma with interstitial lung disease, and state whether the disorder is chronic. . Answer these questions: Is it at least as likely as not (50 percent or greater probability) that a respiratory disorder other than asthma with interstitial lung disease was incurred during, manifested during, results from, or has been chronic since the Veteran's active service from June 1977 to December 1980? Discuss the Veteran's lay statements and testimony in the response to this question, including his contention that he is entitled to service connection for plaques due to exposure to asbestos and for asbestosis. Discuss whether or not plaques are present and, if so, the significance thereof. Explain the rationale for your answer to this question. Is it at least as likely as not (50 percent or greater probability) that a respiratory disorder other than asthma with interstitial lung disease is aggravated or accelerated by a service-connected disability or by the Veteran's in-service exposure to asbestos? Discuss the Veteran's lay statements and testimony in the response to this question. If any requested opinion cannot be provided without resort to pure speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.), and identify the information needed to provide the requested opinion. 6. Ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Readjudicate the Veteran's appeal. If the claim is not granted to the Veteran's satisfaction, send him and his representative Supplemental Statement of the Case and give them an opportunity to respond before returning the file to the Board for further appellate consideration. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs