Citation Nr: 1307928 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 09-11 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a respiratory disorder, to include asbestosis and chronic obstructive pulmonary disorder (COPD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his daughter ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from January 1952 to December 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of a special processing unit in the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO), called the Tiger Team. Jurisdiction over the case remains with the Montgomery, Alabama RO. The Veteran and his daughter testified at a hearing at the RO before a Decision Review Officer (DRO hearing) in July 2011. A transcript of that hearing has been associated with the claims file. During the pendency of this appeal, by a December 2012 rating decision, the RO granted the Veteran's claim for service connection for posttraumatic stress disorder (PTSD), thereby constituting a full grant of the benefits sought on appeal. Thus, as this issue, which was previously on appeal, was granted in full it is not in appellate status before the Board and need not be addressed further. A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA medical records. A supplemental statement of the case (SSOC) was issued in December 2012, which addressed this additional evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The probative evidence of record demonstrates that the Veteran does not have asbestosis. 2. The probative evidence of record demonstrates that COPD did not originate during the Veteran's active service or for many years thereafter and is not related to his active service. CONCLUSION OF LAW The criteria for the establishment of service connection for a respiratory disorder, to include asbestosis and COPD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Prior to the initial adjudication of the Veteran's claim for service connection in the August 2006 rating decision, he was provided notice of the VCAA in November 2005. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran also received notice in August 2006, pertaining to the downstream disability rating and effective date elements of his claims and was furnished a statement of the case (SOC) in December 2008 with subsequent readjudication in September 2011 and December 2012 SSOCs. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, service personnel records, private medical records, VA outpatient treatment reports, VA examinations, some treatise information about asbestos exposure and statements and testimony from the Veteran, his daughter and his representative. This case was previously remanded by the Board in July 2012 to provide the Veteran with an adequate VA examination for the Veteran's respiratory disorders. As the August 2012 VA examiner performed all the tests necessary to evaluate the Veteran's current respiratory disorders and complied with the Board's remand instructions, the Board is satisfied that the development requested by its July 2012 remand has now been satisfactorily completed and substantially complied with respect to the claim for service connection for a respiratory disorder, to include asbestosis and COPD. See Stegall, 11 Vet. App. 268 (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). The Board notes that the August 2012 VA examination report reflects that the examiner reviewed the Veteran's past medical history, documented his current medical condition, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Consequently, the Board concludes that the medical examination is adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012). Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting asbestos exposure. The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, 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 products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). 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. Id. at Subsection (h). 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. VAOGCPPREC 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. Analysis In statements and testimony presented throughout the duration of the appeal, the Veteran has maintained that his current respiratory disorder is related asbestos exposure during his active service. The Veteran's service records reflect that he spent a significant portion of his active service aboard two U.S. Navy ships. The Veteran has also reported that he served as a mechanic while in the Navy and his Report of Separation from Active Service (DD form 214) reflects that his military occupational specialty (MOS) was that of an aircraft mechanic. Accordingly, the Board observes that there is a strong probability that the Veteran was exposed to asbestos during his service. Service treatment reports are absent of any findings of a respiratory disorder. The January 1952 entrance examination revealed a normal respiratory system upon clinical evaluation. A January 1952 Report of Medical History also was absent of any reported history of a respiratory disorder. In October 1955 the Veteran complained of a "hurting, aching chest" and a chest x-ray performed at that time demonstrated negative findings. The December 1955 separation examination revealed normal findings of the lungs and chest upon clinical evaluation. The Veteran's post-service medical evidence includes private medical records from March 1998 and September 2005, VA outpatient treatment reports from March 1999 to May 2012 and VA examinations in April 2006, August 2011 and August 2012. March 1998 private medical records reflect findings which a private physician, Dr. Ray A. Harron, M.D., had found to be consistent with asbestosis. A March 1998 private chest x-ray revealed results observed to be consistent with asbestosis. In his March 1998 examination report, the private physician found that, on the basis of the Veteran's work history and his B-reading of the chest x-ray, he could make a diagnosis of asbestosis within a reasonably degree of medical certainty. In addition, it was noted that the diagnosis of pulmonary asbestosis meant that the Veteran was suffering from an abnormality of the parenchymal lung tissue as a result of exposure to asbestos products and that, because of the increased incidence of branchiogenic carcinoma and mesothelioma and other malignancies in asbestos exposed persons, careful follow up was suggested. The record additionally contains an undated opinion from a private physician, Dr. Leo J. Castiglioni, M.D.. It was sent to the Veteran by an attorney in September 2005. The attorney stated that he was sending the Veteran a copy of his records from the asbestos medical examination. In the opinion, Dr. Castiglioni stated that he was reviewing medical records at the request of Ray A. Harron, M.D. (the doctor that examined the Veteran in March 1998) and that he was not practicing medicine on the Veteran. Rather, he indicated that his relationship was that of a medical witness reviewing submitted records for a possible claim for a benefit. Dr. Castiglioni indicated that, on the basis of the Veteran's occupational history and a B-reading of his chest x-ray, he believed it was within a reasonable degree of medical certainty that the Veteran had asbestosis. VA outpatient treatment reports from March 1999 to May 2012 reflect that the Veteran reported a history of asbestosis and asbestos exposure, however he was continuously diagnosed with COPD and other respiratory disorders including bronchitis and upper respiratory infection. A March 1999 VA chest x-ray revealed that there were no findings conclusive for asbestosis. In an April 2002 report of telephone contact, a VA physician noted that the Veteran had reported to him that he had been tested negative for asbestosis. A diagnosis of acute bronchitis was made in February 2002 and an upper respiratory infection was diagnosed in December 2003. In September 2004, a VA physician noted that a chest x-ray revealed findings consistent with mild COPD. The Veteran has continuously been diagnosed with COPD since that time. The Veteran was afforded a VA respiratory examination in April 2006. Pulmonary function tests revealed that he had a moderate obstructive lung defect. The Veteran was diagnosed with COPD. The examiner, however, provided the opinion that the Veteran's COPD was not at least as likely as not the result of exposure to asbestos during his military service. The examiner based this opinion on a finding of no asbestos related complaint in the Veteran's service treatment reports and a finding that while the Veteran had been noted to have a history of asbestosis, recent VA treatment records were negative for findings of asbestosis. The Board found that the April 2006 VA examination was inadequate for rating purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). In a September 2008 VA outpatient treatment report, the Veteran was treated for shortness of breath which was originally thought to have both cardiac and pulmonary etiologies, including a worsening of COPD, and was later attributed to cardiac etiologies. In May 2011, a VA treatment provider noted in his diagnosis that, given the Veteran's history of smoking, COPD was likely underlying his troubles. In a July 2011 DRO hearing, the Veteran testified that he was exposed to asbestos while serving aboard a ship during his active service. He stated that he did not really experience problems due to exposure in service and did not go to sick call while in service. The Veteran also testified that he did not seek treatment for this condition once he got out of service. His daughter reported that he was currently seeing his regular doctor for his respiratory condition. The Veteran stated he did not ask his physician about a medical opinion regarding whether his asbestosis was caused by his active service. He also testified that he was diagnosed with COPD and that he did not smoke. The Veteran was afforded a subsequent VA respiratory examination in August 2011. While the examiner diagnosed mild COPD, she did not provide an opinion as to the nature and etiology of his COPD. The Board remanded the case in July 2012 for a new and adequate VA examination and opinion. In an August 2012 VA examination, the Veteran was diagnosed with COPD. The examiner opined that the claimed condition was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran served on a naval ship from 1952 to 1955 with asbestos exposure. He also noted that breathing in asbestos fibers can cause scar tissue (fibrosis) to form inside the lung which did not expand and contract normally and noted this was no the case in this Veteran based on x-rays and a CT scan. The examiner stated that, often, symptoms go unnoticed for 20 years or more after asbestos exposure. Asbestos fibers were noted to be commonly used in construction before 1975 and asbestos exposure occurred in asbestos mining and milling, construction, fireproofing, Navy ships and Naval ship yards. The examiner stated that Dr. Ray A. Harron, M.D., reported that the March 1998 x-ray was consistent with asbestosis but there was no definitive diagnosis. He found that the Veteran reported having negative asbestosis testing in 2002 and that CT of the thorax and chest x-rays dating back to 2008 were not indicative of asbestosis, however they were indicative of COPD. The examiner noted that the claims file did not indicate a definitive diagnosis of asbestosis. He reported that there was no question that the Veteran had asbestos exposure in the Navy and in employment after military service, however, based on the claims file, radiologic studies and problem list, he was unable to provide a diagnosis of asbestosis. The examiner concluded that the Veteran had COPD which was moderate in severity and with a likely etiology of employment in a coal mine as evidence based literature did not support COPD as being secondary to asbestos exposure. He noted there was no treatment for asbestosis and that the Veteran stated he had been exposed to asbestos in employment as a mechanic applying brakes, a coal miner and at a pipe shop (Central Foundry) worker. He also noted the Veteran stated that during his employment at Central Foundry, there was a fiber plant next door that "released asbestos fibers all day." Following the August 2012 VA examination, additional evidence was received, including online treatise information from the Environmental Protection Agency, which indicated that studies of people who were exposed to asbestos fibers could lead to an increased risk of lung cancer, mesothelioma and asbestosis. This report also indicated that symptoms did not usually appear until about 20 to 30 years after the first exposure to asbestos. After a careful review of the record, the Board has determined, based upon the evidence set forth above, that service connection for asbestosis is not warranted. A current disability is required in order to establish service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no evidence that the Veteran had asbestosis at any time from when he first filed his claim for service connection in September 2005. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran has provided private treatment records from Dr. Harron showing findings consistent with asbestosis in March 1998. In an undated statement, Dr. Castiglioni reviewed records at the request of Dr. Harron and determined that within a reasonable degree of medical certainty, the Veteran had asbestosis. Although and attorney sent the letter from Dr. Castiglioni to the Veteran in September 2005, the report itself from Dr. Castiglioni is undated. It appears to have been created contemporaneous with some type of legal proceeding that took place in 1998. The medical evidence of record dated during the pendency of the Veteran's current claim for service connection shows that he does not have asbestosis. The VA examiner in August 2012 stated that CT of the thorax and chest x-rays dating back to 2008 were not indicative of asbestosis. He reported that there was no question that the Veteran had asbestos exposure in the Navy and in employment after military service, however, based on the claims file, radiologic studies and problem list, he was unable to provide a diagnosis of asbestosis. The Veteran is competent to describe his current respiratory symptoms, but he is not competent to provide a diagnosis of asbestosis as it is a matter requiring medical expertise. Therefore, in the absence of a diagnosis of asbestosis during the appeal period, service connection for asbestosis is denied. The Board also concludes that entitlement to service connection for COPD is not warranted. As noted above, service records reflect that the Veteran spent a significant portion of his active service aboard two U.S. Navy ships and that he served as an aircraft mechanic. Accordingly, these records support the Veteran's reports of exposure to asbestos during his service. However, while the Veteran is currently diagnosed with COPD, the probative evidence of record does not demonstrate a nexus between the Veteran's currently diagnosed COPD and his active service. The post-service medical evidence of record demonstrates that there is no evidence of treatment for respiratory problems until March 1998. There was no medical evidence of COPD in the record until September 2004, wherein a VA x-ray report demonstrated findings consistent with COPD, approximately 49 years after his separation from active service. Further, there is no competent, credible and probative evidence of record indicating a nexus between the Veteran's currently diagnosed COPD and his active service. In this regard, the Board observes that the August 2012 VA examiner opined that the claimed condition was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. He explained that while there was no question that the Veteran had asbestos exposure in the Navy and in employment after military service, based on the claims file, radiologic studies and problem list, he was unable to provide a diagnosis of asbestosis and that the Veteran had COPD which was moderate in severity and with a likely etiology of employment in a coal mine, as the evidence based literature did not support COPD as being secondary to asbestos exposure. As noted earlier in this decision, this opinion has been found to be adequate and is afforded significant probative weight. Given the medical complexity of this issue, the Board finds that the VA examiner's opinion outweighs any lay opinion provided by the Veteran. While the Veteran has provided treatise information from the Environmental Protection Agency, it does not mention COPD. Accordingly, the probative evidence of record does not demonstrate a nexus between the Veteran's COPD and his active service. Therefore, service connection for COPD is not warranted. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for service connection for a respiratory disorder, to include asbestosis and COPD, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a respiratory disorder, to include asbestosis and COPD, is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs