Citation Nr: 1307467 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 07-07 268 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a respiratory disability, to include asbestosis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from August 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the RO in St. Petersburg, Florida. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such, the Board has recharacterized the issue of entitlement to service connection for a respiratory disability to include asbestosis to account for any pulmonary disability he might have. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran also appealed the issue of service connection for tinnitus. The RO granted service connection in a May 2012 rating decision. The grant of service connection constitutes a complete grant of the benefit sought on appeal. Where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Veteran has not disagreed with disability rating or effective date assigned. Therefore, the issue has been resolved and is no longer in appellate status. The Board remanded this case in November 2010. The directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board referred the issue of service connection for bilateral hearing loss in November 2010 to the Agency of Original Jurisdiction (AOJ) for appropriate action. It is unclear whether the AOJ has taken any action on this matter. Therefore, the Board once again REFERS the issue of service connection for bilateral hearing loss to the AOJ for appropriate action. FINDING OF FACT The weight of the evidence is against a finding that the Veteran has a respiratory disability as a result of his military service, to include any asbestos exposure therein. CONCLUSION OF LAW A respiratory disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA 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. Compliance with the first element requires notice of the five service connection elements: (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. See 38 U.S.C. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). February and March 2006 letters fully satisfied the duty to notify provisions prior to the initial adjudication of the Veteran's claim in May 2006. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board also concludes VA's duty to assist has also been satisfied. The Veteran's service treatment records and VA medical records are in the file. 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 duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). If VA provides a claimant with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The Veteran was afforded a medical examination in December 2010, and his claims file was reviewed again in February 2012, to obtain an opinion as to whether he has an respiratory disability related to his military service, to include any asbestos exposure therein. The examiners concluded that he did not have a respiratory disability. These opinions were rendered by medical professionals following a thorough examination and interview of the Veteran and review of the claims file. The 2010 examiner obtained an accurate history and listened to the Veteran's assertions. Both examiners laid factual foundations and reasoned bases for the conclusions that were reached. Therefore, the Board finds that the 2010 examination and 2012 file review are adequate for ratings purposes. See Nieves-Rodriguez. Moreover, neither the Veteran nor his representative has questioned the adequacy of the examination. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded this case in November 2010. In relevant part, the Board instructed that the Veteran's VA treatment records from January 2006 to the present be obtained and that the Veteran be provided a VA respiratory examination. The Veteran's VA treatment records through November 2011 were obtained. He was seen for a December 2010 VA examination and his file was sent for review in February 2012, providing opinions adequate for ratings purposes. The Board finds that the RO complied substantially with the November 2010 remand instructions. Therefore, remand for additional development of the prior remand instructions is not warranted. See Stegall. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Service Connection The Veteran currently seeks service connection for a respiratory disorder, which he believes is the result of in-service exposure to asbestos while working in his ship's machinery rooms. The Veteran asserted that he developed the condition in 1995. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. However, guidelines governing asbestosis and other asbestos-related diseases are contained in VA's adjudication manual. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Resulting from Exposure to Asbestos." Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00 (April 13, 2000). VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the specified criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others including workers involved in the manufacture and servicing of friction products such as clutch facings and brake linings. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the Veteran is competent to give evidence about what he experiences, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Veteran reported experiencing a chronic cough during his April 2006 VA examination, which he is considered competent to do. However, he is not competent to indicate whether that cough represents asbestosis. He has also reported that medical professionals have diagnosed him with asbestosis. Although he is competent to report the diagnosis, this must be weighed against the other evidence of record. The Veteran was afforded a VA respiratory examination in April 2006. The Veteran complained of a dry cough for the previous eight years. The pulmonary function test showed a minimal obstructive lung defect and a mild restrictive lung defect. The examiner diagnosed the Veteran with emphysema with a high probable history of asbestos exposure. However, the examiner opined that the Veteran's emphysema was not the result of his asbestos exposure because he did not appear to have obstructive lung disease on pulmonary function tests and was not medically treated for emphysema. Furthermore, recent chest X-rays were unremarkable for emphysema, although the examiner posited that the X-rays did reveal a new abnormality that was not present on previous chest X-rays. The examiner advised the Veteran to follow-up with his primary care provider concerning this new abnormality. It is noted that the examination report reflects that the Veteran had smoked 1/2 a pack of cigarettes per day for approximately 20 years, but had stopped approximately 20 years earlier. VA treatment records from the Orlando VA Medical Center dated from December 2004 to October 2010 have been associated with the claims folder. These contain a single opinion which conflicts with the 2006 VA examination opinion. Specifically, an October 2006 VA treatment note revealed a confirmed diagnosis of chronic obstructive pulmonary disease (COPD); and the note's author opined that the COPD was most likely related to the Veteran's asbestos exposure aboard the U.S.S. Ranger and the U.S.S. Bon Homme Richard, where he pulled out old pipes lined with asbestos and replaced them with new asbestos to provide continued steam to all functions of the ships. The Board observes that the note's author is a physician's assistant and the basis of her opinion was not stated. The Veteran underwent another VA examination in December 2010. The examiner noted that the Veteran had normal pulmonary function tests. His recent chest radiographic studies showed that the abnormality discovered in April 2006 had resolved by December 2006. The examiner noted that the chest x-rays did not show any pleural plaquing or fibrosis. The impression was old healed granulomatous disease, minimal calcific plaquing of the aortic knob, and no cardiopulmonary disease. The Veteran was assessed as being probably normal. The examiner stated that the x-rays did not indicate any current respiratory disability such as COPD or emphysema or "asbestos exposure." However, it would logically appear that this was a typographical error and that "asbestos exposure" was intended to mean no asbestosis. The Veteran was not diagnosed with COPD. The Veteran reported a productive cough at night and in the morning. The examiner also explained that the chronic cough of which the Veteran complained was a common side effect of fosinopril, an ACE inhibitor. The Board notes that the Veteran was taking the medication for a non service-connected disorder. He had been switched to lisinopril, which also causes a cough as a side effect. Another VA opinion was obtained in February 2012 to resolve the conflict in the evidence as to whether the Veteran had a respiratory disability. The examiner noted that the Veteran did clear his throat during the examination, but the examiner stated that he did not observe a chronic cough, indicating that he had walked 150 yards with the Veteran without noting any cough or shortness of breath. The examiner repeated most of the December 2010 opinion but added that the previous COPD diagnosis in 2006 was a misdiagnosis. The examiner explained that the Veteran did not have a respiratory condition. While the Veteran had been diagnosed with emphysema in 2005, the examiner explained that tests, including pulmonary function tests, chest x-rays, and chest CTs, did not show a respiratory condition. Physical examination similarly failed to detect a respiratory disease. The Veteran's more recent VA treatment records were obtained. These show that the cough which the Veteran claims has been present since service has not been present since his medication was switched from fosinopril. On repeated visits for care (including in October 2007, May and August 2008, June 2009, May 2010 and September 2011), the Veteran specifically denied respiratory symptoms, including the cough. This tends to support the examiner's conclusion that the cough was not the manifestation of a chronic disability, but rather the side effect of his medication. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). The Veteran's report of a diagnosis of asbestosis is of minimal probative value. He relates what he has been told, but not the factual predicate on which the diagnosis was offered. The 2006 diagnosis of emphysema is mitigated by the fact that the examiner indicated that it was not an asbestos related disease. Moreover, the 2006 diagnosis of COPD is undermined by its lack of rationale particularly in the face of the negative COPD findings in the contemporaneous VA examination report. The Board is cognizant that in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of a current disability is satisfied when the claimant had a disability at the time a claim for VA disability compensation was filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. Here, however, while a provisional diagnosis of emphysema or COPD may have been rendered, the Board believes that a conclusive medical determination had not been reached at that time. Moreover, subsequent testing using a variety of technologies did not show any respiratory disease or disability. Moreover, the more recent examiners explained that the 2006 diagnosis of emphysema was a misdiagnosis, concluding that the Veteran did not actually have a chronic respiratory disorder. These opinions were based on the full record and on his most recent treatment results. The clear radiographic studies and normal pulmonary function tests strongly support the lack of diagnosis. The resolution of the cough following the medication change also lends support to the conclusion that the Veteran did not have a chronic respiratory disability at any time during the course of his appeal. The Board gives great probative weight to these fully explained, consistent and factually accurate opinions. The Board finds that the preponderance of the evidence shows that the Veteran does not have a respiratory disability. Thus, service connection is not warranted. See Degmetich; see also Shedden. Further inquiry into whether the Veteran had asbestos exposure during service is moot, as there can be no valid claim in the absence of proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Again, while the Veteran is competent to reported experiencing a cough, he is not competent to diagnose a respiratory disease or disability. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a respiratory disability, to include asbestosis, is denied. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs