Citation Nr: 1309149 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 06-29 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a respiratory disorder other than asthma as a residual of in-service exposure to asbestos. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from March 1953 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) from January 2005 and November 2007 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2009, the Veteran testified at a hearing before the undersigned. The transcript of that hearing has been associated with the claims file. In October 2009, January 2012, and November 2012, the Board remanded the Veteran's claims. The VA Appeals Management Center (AMC) continued the previous denial of the claim in May 2011, September 2012, and February 2013 supplemental statements of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. 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). FINDING OF FACT The weight of the evidence of record does not support a finding that a relationship exists between the Veteran's current respiratory disability other than asthma and his active duty military service, to include as a residual of his claimed exposure to asbestos. CONCLUSION OF LAW A disability other than asthma resulting from exposure to asbestos, to include asbestosis, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Stegall concerns As indicated above, in October 2009, January 2012, and November 2012, the Board remanded this claim and ordered either the agency of original jurisdiction (AOJ) or AMC to provide proper notice to the Veteran under the Veterans Claims Assistance Act of 2000 (VCAA), obtain the Veteran's service personnel records, and schedule the Veteran for a VA pulmonary examination and associate a report of the examination with his claims folder. The Veteran's claim was to then be readjudicated. Pursuant to the Board's remand instructions, the Veteran was provided appropriate VCAA notice. This will be discussed in greater detail below. Further, the Nashville, Tennessee RO attempted to obtain the Veteran's service personnel records. Additionally, the Veteran was afforded a VA pulmonary examination and a report of the examination was associated with his claims folder. Also, additional clarifying opinions and addendums have been obtained. The Veteran's claim was readjudicated via the May 2011, September 2012, and February 2013 SSOCs. Accordingly, the Board's remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [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]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). a) Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the effective-date element of the claim, by letters mailed in May 2004, April 2007, and June 2010. After receiving appropriate notice, the Veteran had ample opportunity to participate meaningfully in the development of his claim prior to readjudication of his claim by means of the February 2013 SSOC. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. b) Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim and there is no reasonable possibility that further assistance would aid in substantiating this claim. The evidence of record includes the Veteran's statements as well as postservice VA and private treatment records. The Board notes that the Veteran's service treatment records and service personnel records are not associated with the claims folder. The Veteran was advised in May 2006 that his service treatment records are unavailable and in June 2010 that his service personnel records are unavailable and that he should forward copies of any available service records in his possession. He did not submit any copies of service treatment or personnel records in response to the RO's request. The Board is cognizant of Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), wherein the Court elaborated on the VA's responsibility to obtain a Veteran's service treatment records. The Board finds, however, that no useful purpose would be served in remanding this matter for more development. In this case, the RO has attempted to locate the Veteran's service treatment and personnel records. The RO submitted a request to the National Personnel Records Center (NPRC) in May 2004, asking for all available military medical records as well as in January 2010 asking for service personnel records. In response to the request by the RO, the NPRC reported that they were unable to locate the records identified in the RO's request and indicated that they were destroyed in the July 1973 fire at the NPRC. There is no indication that any service treatment or personnel records exist. The Board observes that, where records are unavailable, "VA has no duty to seek to obtain that which does not exist." See Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. So it is in this case. Additionally, the Veteran was afforded a VA examination in October 2010 with an addendum obtained in April 2011. A VHA medical advisory opinion was obtained in September 2011. The Veteran was afforded another VA examination in February 2012 with an addendum obtained in February 2013. The examination reports reflects that examination of the Veteran has been performed, and examiners have reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes with regard to the Veteran's pulmonary claim. See 38 C.F.R. § 4.2 (2012); see also 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]. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative. He was afforded a personal hearing in June 2009. Accordingly, the Board will proceed to a decision as to the issue of entitlement to service connection for a respiratory disorder other than asthma as a residual of in-service exposure to asbestos. Legal Criteria In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There is no specific statutory guidance regarding claims for service connection for asbestosis or other asbestos-related diseases, 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 (M21-1MR), provides information concerning claims for service connection for disabilities resulting asbestos exposure. 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). With respect to claims for service connection for a disability involving asbestos exposure, VA must make 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. M21-1MR, Pt. IV, Subpt. ii, Ch. 2, Sec. C, Para. 9(h) (M21-1MR, IV.ii.2.C.9.h). Inhalation of asbestos fibers can produce fibrosis, asbestosis, tumors, pleural effusions and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). M21-1MR, IV.ii.2.C.9.b. 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. M21-1MR, IV.ii.2.C.9.f. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis As has been explained above, the Veteran's service treatment and personnel records are unavailable for review. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claims has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the Veteran or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) [the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases]. In this case, the Veteran has asserted that he was exposed to asbestos while living in the barracks at Fort Lewis, Washington. Specifically, he alleged that the steam heating pipes which fed the radiators in his barracks were covered with an insulation which he believed was asbestos and due to poor maintenance this insulation was always breaking off and having to be cleaned-up by him and other soldiers. He also has stated that he and his fellow soldiers had to periodically work in the boiler room, which had asbestos insulation everywhere, and this insulation was constantly breaking off and falling to the floor and having to be cleaned-up by him and other soldiers. Moreover, small parts of the asbestos insulation were constantly floating in the air in the boiler room. The Veteran has also remarked that he had post-service exposure to asbestos, as he worked at the Red River Depot in maintenance. He said that during his post-service work around asbestos, he was required to wear an asbestos uniform. In 2003, the Veteran received a settlement from a corporation related to asbestos products. The Veteran's February 1955 separation from active duty examination report reflects that he had a normal chest and lungs. A private treatment record from J.B., M.D., dated April 2001, provides the first documented postservice treatment of asserted asbestosis of record. Dr. B. recorded the Veteran's remarks that he had been exposed to asbestos while working for the Red River Army Depot where he had worked as a general laborer, warehouse man, forklift operator, polisher, and millwright. The Veteran said that he was exposed to thick clouds of dust for which he was not provided a mask. Dr. B. also noted that the Veteran had smoked a half-pack of cigarettes per day for 20 years before quitting. Dr. B. opined that a chest X-ray gave evidence of parenchymal abnormalities which were consistent with asbestosis. The examiner assessed that the Veteran had a history of occupational exposure to friable asbestos materials and an adequate latency period who demonstrated parenchymal abnormalities on chest X-ray as well as abnormalities on spirometry which were consistent with asbestosis. A VA treatment center record from April 2003 reflects that the Veteran had chronic obstructive pulmonary disease (COPD). An X-ray of the chest completed in December 2006 revealed a calcified granuloma in the right midlung zone along with a calcified right hilar lymph node. The radiologist indicated that the X-ray was compatible with old granulomatous disease. A chest X-ray from April 2007 reflects that the Veteran's lungs were expanded and free of acute infiltrate. Some scattered calcified granulomas were noted. The interpreter remarked that there was no acute cardiopulmonary disease. The Veteran was afforded a VA compensation and pension examination in October 2010. The report reflects that the Veteran had a history of smoking, but the Veteran quit in 2002. After examination of the Veteran and consideration of his medical history, the VA examiner rendered a diagnosis of COPD and further opined that the Veteran did not have asbestosis. With respect to whether the Veteran's COPD was related to his in-service asbestos exposure, the examiner concluded in an April 2011 addendum that she could not resolve that issue without resort to mere speculation. She explained that based on a review of a chest CT performed in October 2010 which revealed pleural plaques suggestive of asbestos exposure, which was in contrast to a pulmonary function test performed in November 2010 that revealed a mild obstructive ventilator impairment as opposed to a restrictive pattern which was seen with pulmonary asbestosis. In August 2011, due to the complexities of the medical issues involved, the Board, pursuant to 38 C.F.R. § 20.901 (2012), requested a VHA opinion from a pulmonologist to address whether it is at least as likely as not that the Veteran has asbestosis, chronic obstructive pulmonary disorder (COPD), or any other respiratory disability, and as to each diagnosed disability, whether the disability began during or is causally linked to any incident of service, to include the Veteran's claimed in-service asbestos exposure. In his September 2011 report, the VHA reviewer, Dr. L.L., reviewed and commented on the evidence of record. He noted that the presence of pleural plaques on the CT scan indicated a prior exposure to asbestos which could be related to the Veteran's military service. Dr. L. specified that pleural plaques were not a cause of respiratory disability. Dr. L. explained that the diagnosis of asbestosis refers specifically to interstitial lung disease caused by asbestos exposure and was distinct from pleural plaques. Dr. L. discussed the medical tests of record and opined that a diagnosis of asbestosis was not supported by the evidence of record. However, Dr. L.L. noted that a diagnosis of COPD was supported by the record, and concluded that "[t]he role of asbestos exposure in causing COPD is generally thought to be minimal. Some mild obstructive changes may occur as a direct effect of asbestos exposure but are unlikely to cause functional impairment." A supplemental VA medical opinion was obtained in February 2012 as to whether the Veteran currently suffers from a respiratory disorder other than asthma, and if so, whether such disability is related to his military service, to include exposure to asbestos. The February 2012 VA examiner reported that the Veteran currently suffers from chronic obstructive pulmonary disorder (COPD). She also reported that a diagnosis of asbestosis is not supported by the record. Another supplemental VA medical opinion was obtained in February 2013. The examiner opined that the Veteran's COPD was less likely than not incurred in or caused by his active duty service. The examiner explained that the Veteran's pulmonary function test of 2010 revealed an obstructive pattern which was significantly improved following the administration of bronchodilators. She remarked that Asbestosis disease presents as a restrictive pattern on pulmonary function tests and would not improve with bronchodilators. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3)a nexus between the current disability and an injury during active duty. See Shedden, supra. As to element (1), the Veteran has claimed that he has a diagnosis of asbestosis. The Board recognizes that the Veteran is competent to describe his own observable symptomatology. Crucially however, he is not competent to diagnose himself with a specific respiratory disability resulting from asbestos exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) [noting, in a footnote, that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer]. As such, the Veteran's lay assertions that he has asbestosis, as opposed to any other respiratory condition, are not competent and are afforded no weight of probative value. The Veteran has pointed to the April 2001 report in which Dr. B. said that the Veteran demonstrated parenchymal abnormalities on chest X-ray as well as abnormalities on spirometry which were consistent with asbestosis. Significantly, however, Dr. B. did not actually give the Veteran a diagnosis of asbestosis; rather, he only indicated that the findings on examination were consistent with asbestosis. Contrastingly, the October 2010 VA examiner and September 2011 VHA specialist both specified that the Veteran did not have asbestosis. They both reviewed the results of the prior medical testing and indicated that although the Veteran had been exposed to asbestos, that exposure had not resulted in the disability of asbestosis. In particular, the September 2011 VHA specialist described the nature of asbestosis in detail and explained why the Veteran's test results did not support a diagnosis of asbestosis. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Indeed, in Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. In this case, the Board finds that the reports from the October 2010 VA examiner and September 2011 VHA specialist outweigh the April 2001 report from Dr. B. concerning whether the Veteran has a diagnosis of asbestosis. In particular, the September 2011 VHA specialist included more information than Dr. B. concerning the exact nature of asbestosis and why the Veteran's test results did not support the conclusion that the Veteran had a diagnosis of asbestosis. As the weight of the evidence does not indicate that the Veteran has a diagnosis of asbestosis, element (1) has not been met for asbestosis, and service connection for asbestosis cannot be granted. However, the uncontroverted evidence of record as reviewed above reflects that the Veteran has a diagnosis of COPD (see VA treatment note from April 2003, October 2010 VA examination report, September 2011 VHA opinion, February 2012 VA opinion). As such, element (1) has been met for a claim for service connection for COPD, and the analysis for service connection will continue for COPD. Turning next to element (2), in-service disease or injury, the Board again notes that the majority of the Veteran's service treatment records and service personnel records have been lost through no fault of his own. However, his remarks concerning the nature of his in-service exposure to asbestos have been clear and consistent throughout the record. Significantly, the Veteran worked with asbestos for many years post-service as a civilian at the Red River Depot, and as such, has had experience recognizing the nature of working with asbestos. Additionally, the Board notes that in his September 2011 opinion, the VHA specialist remarked that the evidence supported a conclusion that the Veteran had been exposed to asbestos. Significantly, there is no evidence which definitively shows that the Veteran was not exposed to asbestos while he was on active duty. Extending every reasonable doubt to the Veteran, the Board finds that the Veteran likely was exposed to asbestos while on active duty, and as such, element (2) is met. Moving finally to crucial element (3), nexus or relationship, the Veteran has again pointed to the April 2001 report from Dr. B. However, to whatever extent the Veteran claims that the April 2001 report from Dr. B. supports a connection between any present disability and asbestos exposure during his active duty, this assertion must fail. In his report, Dr. B. recorded the Veteran's remarks that he had been exposed to asbestos while working for the Red River Army Depot where he had worked as a general laborer, warehouse man, forklift operator, polisher, and millwright. Crucially, the Board notes that the Veteran has not asserted that he served at the Red River Army Depot while he was on active duty; rather, the Veteran has stated that he worked at the Red River Army Depot as a civilian. As Dr. B. only discussed the Veteran's exposure to asbestos as a civilian, his opinion cannot be used to link any present disability to the Veteran's exposure to asbestos while on active duty. The only medical opinion of record which directly addresses the relationship between any currently present respiratory disorder other than asthma and the Veteran's active duty service is the February 2013 supplemental VA medical opinion. The examiner opined that the Veteran's COPD was less likely than not incurred in or caused by his active duty service. The examiner explained that the Veteran's pulmonary function test of 2010 revealed an obstructive pattern which was significantly improved following the administration of bronchodilators. She remarked that Asbestosis disease presents as a restrictive pattern on pulmonary function tests and did not improve with bronchodilators. The February 2013 VA supplemental examination report is highly probative, as it is based on a thorough review of the Veteran's medical records and examination of the Veteran, consistent with the other evidence of record, supported by a detailed rationale, and rendered by a medical professional. See supra Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has submitted no competent medical nexus evidence contrary to the VA opinion. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (2012) (noting it is a claimant's responsibility to support a claim for VA benefits). Moreover, the Veteran, while competent to report his symptoms, both past and present, is not competent to render a medical opinion in this case as such opinion linking his symptoms to an underlying disabling condition is beyond the scope of a layperson. That is, he is not competent to link his symptoms over the years to his exposure to asbestos. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). The Board wishes to make clear that its analysis above, although organized to track the elements of service connection for the sake of clarity, also includes discussion of the key components requiring discussion in the M21-1MR regarding claims involving asbestos exposure. As noted above, with respect to claims for service connection for a disability involving asbestos exposure, VA must make 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. See M21-1MR, IV.ii.2.C.9.h. In this case, the Board has indeed found that the weight of the evidence of record does in fact demonstrate that the Veteran was exposed to asbestos in service, that the Veteran also likely had additional exposure to asbestos following service in performance of his occupational duties, and that no relationship exists between any asbestos exposure and the Veteran's current respiratory disability other than asthma. Further, the weight of the evidence of record indicates that the Veteran does not have a diagnosis of asbestosis but rather a diagnosis of COPD. The benefit-of-the-doubt rule is not for application in this case because the evidence for and against the Veteran's claim is not in relative equipoise. ORDER Entitlement to service connection for a respiratory disorder other than asthma as a residual of in-service exposure to asbestos is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs