Citation Nr: 1310885 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 10-32 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an asbestos-related lung disease. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and G.L. (son) ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from August 1944 to March 1946 and February 1951 to May 1952. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of September 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2012, the Board remanded the present matter for additional development and due process concerns. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). A hearing before the undersigned Veterans Law Judge was held at the RO in April 2012 (i.e. a video hearing). The hearing transcript has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The issue of entitlement to service connection for asthmatic bronchitis has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran does not have asbestos-related lung disease, to include asbestosis. CONCLUSION OF LAW The criteria for service connection of an asbestos-related lung disease have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letter dated in August 2009. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant an examination, obtained probative medical opinions as to the existence of an asbestos-related disorder, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file, and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements, and the appellant is not prejudiced by a decision on the claim at this time. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. VA's Manual M21-1 Manual Rewrite (M-21MR) contains guidelines for the development of asbestos exposure cases. M-21MR, at Part IV, Subpart ii, Chapter 1, Section H(29) [IV.ii.1.H.29] and IV.ii.2.C.9, in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and certain cancers, among other diseases, with the most common of the diseases resulting from exposure to asbestos being interstitial pulmonary fibrosis (asbestosis). M-21MR notes that the latent period can vary from 10 to 45 years, or longer, between first exposure and development of disease. Exposure can be brief (as little as a month) or indirect (bystander disease). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M-21MR (as in effect from August 2007). VA must determine whether military records demonstrate evidence of asbestos exposure in service and whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure, and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. The Veteran asserts that he was exposed to asbestos while serving in the Navy. M-21MR, IV.ii.2.C.9(g) notes that there was widespread exposure to asbestos among Navy veterans, and based on the Veteran's history of exposure during service and the widespread exposure among Navy veterans, in-service asbestos exposure is assumed for the purposes of this decision. Even finding the Veteran had in-service exposure to asbestos, competent medical evidence is required for a determination that the Veteran has an asbestos-related disorder and that asbestosis or other asbestos-related disorder is etiologically related to the Veteran's service. The service treatment and examination records reflect no complaints or findings indicative of asbestosis or another asbestos-related disorder; the March 1946, January 1949, February 1951, and May 1952 examination records reflect normal findings for the respiratory system; and the March 1946 and May 1952 examination records indicate that X-ray imaging of the chest was negative for abnormality. A January 1992 private treatment record indicates that the Veteran was concerned about asbestosis. The record notes the physician's determination that X-ray imaging showed some peribronchial or cuffing but no effusion or infiltrate. The Veteran was assessed with persistent chronic bronchitis. A February 1995 private treatment record indicates that pulmonary function tests (PFT) showed restrictive disease. The record reflects the physician's finding that the Veteran "very well may have asbestos related lung disease" based on the Veteran's exposure to post-service occupational exposure to asbestos and the absence of a history of cigarette smoking. A March 1996 private treatment record reveals the physician's finding that a chest X-ray showed "perhaps an early infiltrate," which was "quite subtle" but "clearly different from the [previous] X-ray of about a year ago." The physician interpreted the presentation as early left lower lobe pneumonia. A March 1997 treatment record indicates that a chest-X-ray showed an infiltrate in the left lower lobe, for which the Veteran was provided medication. A November 1998 treatment record reflects assessments of restricted lung disease from asbestos-related exposure and chronic bronchitis with somewhat of an allergic component. A December 1999 private treatment record indicates that the Veteran had a medical history of asbestos-related lung disease and chronic bronchitis. After examination, the Veteran was assessed with bronchitis with acute reactive airway disease. The record notes that X-ray images revealed what "appear[ed] to be bullous airway disease in the right lower lung" and no appreciable infiltrates. A June 2000 private treatment record indicates that the Veteran was being seen "for follow-up of his chronic lung disease, associated with asbestos exposure." The physician noted that the Veteran's X-ray images were consistent with the Veteran's belief that he had asbestos-related injury. The physician noted that X-ray imaging of the chest showed what seemed to be a thin line of diaphragmatic calcification on the left and possibly on the right and mild thickening without calcification lateral. The physician added that the Veteran continued to have some interstitial fibrous-appearing tissue without effusion. The physician indicated that he would confirm the findings with the radiologist. An August 2000 private treatment record reflects the physician's finding that it was "quite clear" that the Veteran "has had over time a slow increase in the pleura plaques in both lung fields, as demonstrated on his X-rays and confirmed by those reports." The physician diagnosed the Veteran with asbestos-related lung disease, with progressively worsening pleura plaquing over the years. See Simmons treatment records. An October 2000 private treatment record indicates that the Veteran was being seen for asbestos evaluation based on post-service occupational exposure to asbestos. The Veteran reported breathing problems, which had been diagnosed as asthmatic bronchitis, since leaving that job. The physician noted that PFT was borderline abnormal and that chest X-ray was "quite dramatic" with "severe bilateral pleural reaction" and 1/0 profusion. The Veteran was assessed with asbestosis and asbestos-related pleural thickening and asthmatic bronchitis. An August 2001 private treatment record indicates that chest radiographs demonstrated bilateral pleural reaction with some volume loss and linear atectasis. The Veteran was assessed with stable asbestosis. An August 2002 private treatment record indicates that PFT was relatively stable and chest radiograph continued to show bilateral pleural reaction with some volume loss and maybe a "sparse degree of 0/1 linear opacities." The Veteran was assessed with obstructive airway disease. See Heflin treatment records. A June 2003 private treatment record reflects the physician's determination that X-ray images showed some old pulmonary fibrotic changes but no effusions or acute infiltrates. See June 2003 Simmons treatment record. An August 2004 private treatment record indicates that chest radiograph demonstrated bilateral pleural reaction with some degree of volume loss and linear atectasis. The Veteran was assessed with asbestosis and chronic obstructive pulmonary disease (COPD). See August 2004 Heflin treatment record. A March 2005 private X-ray report reveals a radiologist's impression of bibasil atelectasis or scarring. The record specifies that there appeared to be some linear scarring changes in the lung bases with only fair inspiratory effort. There was no increase in pulmonary vasculature, pleural effusion, or pneumothorax. An October 2006 private X-ray report reveals the radiologist's impression of pneumonic consolidation in the lingula. The record specifies that the remainder of the left lung and the right lung were clear. A June 2008 private X-ray report reflects the radiologist's impression of no acute cardiopulmonary process. The record specifies that there was mild scarring at the right lung base but no acute infiltrate, effusion, or edema. A September 2009 VA X-ray report reflects the radiologist's impression of no acute pulmonary disease. The record specifies that the lungs were clear. A September 2009 VA treatment record reveals the Veteran's history of significant asbestos exposure during service and past medical diagnoses of COPD/asbestosis. The Veteran was diagnosed with COPD and "asbestos exposure." The record notes that baseline chest X-ray showed very little signs of pleural plaquing and PFT showed "some obstruction but a reserved DLCO." Subsequent treatment records reflect assessments of "asbestos exposure" and COPD-mild obstruction and COPD/bronchiectasis-like symptoms. A July 2012 VA examination record reflects the examiner's diagnosis of COPD. The record notes that a radiologist interpreted X-ray images as showing no acute abnormality: there were several calcified granulomata within lungs but no consolidation, edema, effusion, or pneumothorax. The examiner determined that the Veteran's claimed condition, asbestosis, was less likely than not related to service. The examiner explained that although the Veteran had extensive asbestos exposure, his PFT did not indicate any restrictive lung disease and no asbestos plaques were seen on x-ray. The examiner reported that pleural plaques are indicative of asbestos exposure and typically become visible twenty or more years after the inhalation of asbestos fibers, although latency periods of less than ten years have been observed. An April 2012 private treatment record reflects a physician's determination that the Veteran had asbestosis. The physician noted that he had previously described a 2004 X-ray report as showing bilateral pleural reaction, volume loss, and linear atectasis in both basis. The physician opined that in reviewing the Veteran's history of in-service asbestos exposure, it was "obviously quite possible and more likely than not that [it] contributed to his radiographic changes of asbestos-related pleural thickening as well as what appears to be some mild asbestosis." The physician added that chest X-rays taken that day showed some evidence of pleural thickening but the X-ray was "dramatically underpenetrated and defining whether there is true interstitial disease present is difficult to do." The physician then submitted a form in which he stated that the Veteran met the American Thoracic Society's criteria for a diagnosis of asbestosis. The physician explained that it was more likely than not that the asbestosis was related to service based on the extent of the exposure and length of time from the exposure and diagnostic radiographic changes. In November 2012, VA requested an opinion from a Veterans Health Administration (VHA) specialist to resolve the conflicting findings as to whether the Veteran has an asbestos-related disorder. The specialist, a pulmonologist, reported that the key element to the diagnosis of asbestosis is the finding of irregular opacities on chest imaging consistent with the interpretation of pulmonary fibrosis. The specialist noted that June 2003, June 2008, and July 2012 chest radiograph reports did not mention any irregular opacity. The specialist further noted that although a private pulmonary physician reported an interpretation of an October 2000 chest radiograph as showing 1/0 profusion, the same physician subsequently determined that the Veteran might have a 0/1 opacity, which was less than previously reported. The specialist indicated that it was not clear whether the physician was a certified NIOSH B-reader at the time of this statement or if the private physician used ILO classification criteria including the appropriate comparison films for interpretation. The specialist reported that because the diagnosis of asbestosis requires a finding of pulmonary fibrosis as identified by irregular opacities on chest imaging studies, and since no such report was shown by official radiology reports, it was not possible to establish a diagnosis of asbestosis. Furthermore, based on the evidence reviewed, the specialist did not find any other respiratory disability as a result of asbestos exposure. The specialist explained that the interpretation of chest radiographs can be subjective for the presence of interstitial changes, especially if the diagnosis of a pneumoconiosis such as asbestosis is claimed, which is why it required board-certified radiologists to determine if there are actual changes consistent with the diagnosis of pulmonary fibrosis caused by asbestos exposure. After a review of the evidence, the Board finds the Veteran does not have asbestos or an asbestos-related lung disorder. The Board acknowledges that the record includes diagnoses of asbestosis. The probative value of these diagnoses is outweighed by the countervailing medical evidence of no asbestosis, however. As discussed by the VA examiner and VHA specialist, a diagnosis of asbestos requires radiographic evidence of pleural plaques and opacities. In this case, the record does not include any findings of opacities or pleural plaques by a radiologist. The Board acknowledges that the private physician interpreted radiographic imaging as showing opacities. The physician has provided conflicting findings as to the state of the opacities, however: although he initially found opacity, he later found "scarce" evidence of opacity and his subsequent interpretations of radiographic imagine reflect no findings of opacity. Furthermore, there is no indication that the physician has specialized training in interpreting radiographic images, and the Board finds the private physician's determinations are less probative than the radiologists' implicit findings of no opacities based on the radiologist's more specialized training, the private physician's inconsistent findings as to the existence and severity of opacity, and the private physician's acknowledgement that it was "difficult to define" whether there is "true interstitial disease." Thus, the Board finds the Veteran does not have asbestosis. The Board acknowledges that the Veteran has also been diagnosed with other lung diseases, including COPD. The competent evidence does not suggest any other lung disease is related to in-service asbestos exposure. There is no such finding or history. As such, the Board finds service connection is not warranted for asbestosis or an asbestos-related lung disease. ORDER Service connection for an asbestos-related lung disease is denied. ____________________________________________ DENNIS F. CHIAPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs