Citation Nr: 1306490 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-17 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a lung disorder, status post pneumonectomy, to include due to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from April 1952 to January 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT The Veteran's current respiratory disorders, to include rheumatoid nodules and pulmonary vascular disease, are unrelated to any in-service asbestos exposure or any other incident of his military service. CONCLUSION OF LAW The criteria for service connection for a lung disorder, status post pneumonectomy, to include due to asbestos exposure have not been met. 8 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements were met in this case by a pre-adjudication letter sent to the Veteran in February 2009. The letter advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA's duty to assist has been satisfied. The Veteran's service treatment records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The Veteran was provided VA examinations in April 2009 and November 2012. The examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The November 2012 examination, further, contains a medical opinion with detailed rationale regarding whether the Veteran's respiratory diagnoses are related to his military service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may 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). In general, in order to prevail on the issue of service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran claims his development of a respiratory disorder is due to asbestos exposure in the Navy. The Veteran's DD-214 indicates he served on the USS ROANOKE and personnel records indicate he served as, among other duties, a Marine Oiler. The Veteran's service treatment records are negative for any treatment or diagnoses of a lung-related disorder. On a pre-service military examination in July 1951, the Veteran indicated a history of whooping cough; the clinical examination found no respiratory abnormality. In October 1951, an x-ray of the Veteran's lungs was normal. Thereafter, on the Veteran's service enlistment examination, the Veteran reported a history of whooping cough and hay fever; the clinical examination found no respiratory abnormality. Chest x-rays conducted in April 1952, January 1954, June 1954, and July 1954 were normal. On the Veteran's service separation examination in August 1954, the Veteran reported a history of whooping cough and hay fever. The examiner commented that the reported history of hay fever was seasonal and was "asymptomatic" at the time of the examination, and was not considered disabling. The clinical examination on service discharge found no respiratory abnormality. Accordingly, there are no findings in the service treatment records consistent with in-service incurrence of a chronic lung disorder. The Veteran does not claim he incurred a lung disorder or even lung symptoms while in the military. Rather, he believes the development of a respiratory disorder years later is attributable to in-service asbestos exposure. After service, the Veteran first sought treatment for shortness of breath in June 2008, over five decades after service. At that time, a chest x-ray revealed a lung abscess. The physician suspected lung cancer and recommended surgery. The Veteran underwent a complete pneumonectomy (removal of the lung), but biopsies revealed the abscess was benign. Private surgical records from July 2008 report the Veteran's history of asbestos exposure, as well as a significant smoking history, albeit with the Veteran indicating cessation of smoking "thirty years ago." The surgical records also reported diagnoses of "severe" chronic obstructive pulmonary disorder and rheumatoid arthritis. In November 2008, the Veteran's private physician, A. B., M.D., provided a medical opinion regarding the Veteran's respiratory medical history and current diagnoses. Therein, Dr. B. noted the Veteran's in-service history of asbestos exposure, as well as his post-service 2008 surgical history. Dr. B. concluded that the Veteran's lung abscess, which turned out to be benign, was "probably caused by some dead tissue within a large rheumatoid nodule. Such lung nodules occur commonly in patients with rheumatoid arthritis. Rheumatoid nodules are not related to asbestos exposure." (Emphasis added). Dr. B. further opined that further evaluation of the Veteran's lungs "does not suggest any clinically important asbestos-related lung disease." (Emphasis added). At a VA examination in April 2009, the examiner reviewed the Veteran's military and medical history noting a diagnosis of "lung condition [status-post] right pneumonectomy." With regard to etiology, the examiner merely stated that it is "unusual to remove a lung for 'asbestos.'" Rather, the examiner indicated the need to see the pathology report for final diagnosis of etiology for surgery. No further addendum opinion was proffered. The Veteran testified before the Board in October 2012 that despite Dr. B.'s written statement, he recalls being told by the doctors that his asbestos exposure may have caused his current respiratory problems. He further claims his wife was told by the doctors that the Veteran's diagnoses were due to in-service asbestos exposure. The Veteran was afforded an additional VA examination in November 2012. The examiner diagnosed rheumatoid nodules, pulmonary vascular disease, and a 2008 pulmonary abscess. In light of the Veteran's medical history and surgical records, the examiner opined the Veteran's respiratory disorders were "less likely than not" incurred in or caused by any in-service asbestos exposure. Rather, the examiner noted the Veteran's significant history of rheumatoid arthritis. The examiner noted that Dr. B. concluded that the Veteran's lung abscess was due to rheumatoid lung as a result of rheumatoid nodules, which "unrelated to asbestos exposure" and, further was "not aggravated by asbestos exposure." The VA examiner opined that the Veteran "suffers from no lung condition that is known to be related to asbestos exposure." The Board finds the VA examiner's and Dr. B.'s opinions the most probative evidence of record with regard to whether the Veteran's current lung disorders are related to the Veteran's military service, to include as due to asbestos exposure. The opinions are detailed and thorough. Dr. B., the Veteran's treating physician and a pulmonary specialist, included his treatment of the Veteran. The VA examiner's opinion is based on a physical examination, a complete review of the evidence of record, and the Veteran's statements. Both Dr. B. and the 2012 VA examiner noted the Veteran's history of in-service asbestos exposure, but found any such exposure was not related to any current pulmonary diagnosis. The medical evidence indicates that the Veteran's respiratory disease is due to rheumatoid arthritis. Service connection for rheumatoid arthritis is not in effect. The Veteran's service treatment records are completely negative for any findings or treatment of rheumatoid arthritis and the Veteran has never claimed that rheumatoid arthritis is due to any incident of his military service. To extent that the Veteran contends that a current lung disorder was caused by military service, the Board finds that these statements as to medical causation are not competent evidence to establish service connection for a lung disorder. In certain unique instances lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, in this case, the Board finds that the question of whether any current lung disorder is related to his military service, to include as due to asbestos exposure, does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge. Id. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide a competent etiological opinion that a current lung disorder was the result of his military service. Accordingly, the Board finds that these statements as to medical causation are not competent evidence to establish service connection for a lung disorder. Id. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claims, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Service connection for a lung disorder, status post pneumonectomy, to include due to asbestos exposure, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs