Citation Nr: 1311303	
Decision Date: 04/05/13    Archive Date: 04/19/13

DOCKET NO.  09-32 365	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for a lung disability, claimed as due to asbestos exposure. 


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

M. Riley, Counsel 





INTRODUCTION

The Veteran served on active duty from June 1952 to July 1971.  This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which, in pertinent part, denied service connection for chronic obstructive pulmonary disease (COPD) and emphysema claimed as due to asbestos exposure.  

In September 2009, the Veteran requested to appear at a hearing before the Board at the RO.  The requested hearing was scheduled for October 2012, but the Veteran failed to report for the hearing.  In accordance with 38 C.F.R. § 20.704(d) (2012), the Board finds that the Veteran's hearing request has been withdrawn and will proceed with adjudication of the appeal.  

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 Veteran's lung disability, diagnosed as COPD and emphysema, was first demonstrated many years after service and is not etiologically related to exposure to asbestos or other disease or injury during active duty service.  


CONCLUSION OF LAW

A respiratory disability was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012)




REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that service connection is warranted for a chronic lung disability as it was incurred due to asbestos exposure during active duty service.  
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  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"-the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). 

When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  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.  Id.  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Id.  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)).   

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Initially, the Board finds that the record establishes the presence of a current disability.  The Veteran was first diagnosed with COPD in January 2002 at the Wilkes-Barre VA Medical Center (VAMC).  His private physician confirmed the diagnosis with an October 2007 pulmonary function test (PFT) that demonstrated moderate to severe COPD.  Treatment records from the private physician also note findings of emphysema and describe the Veteran's past history of smoking with multiple packs per day of cigarettes and a pipe until 1994.  A VA examination performed in July 2008 also confirmed the diagnosis of COPD. The Board therefore finds that the record establishes the presence of a chronic lung disability.     

The Veteran contends that his disability is the result of asbestos exposure during active service with the Navy.  There is no specific statutory guidance concerning asbestos claims, nor has the VA 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 United States Court of Appeals for Veterans Claims (Court) has also 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).  

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.  Manual at Subsection (h).  The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim.  See VAOPGCPREC 4-2000.

The Veteran's service records confirm that he had some exposure to asbestos during service.  His DD-214 shows that he performed duties comparable to an aircraft mechanic and his military occupational specialty (MOS) indicates service as an aviation structural mechanic with a specialty in hydraulics.  A May 2002 VA memorandum addressing the likelihood of asbestos exposure for various naval specialties states that the Veteran had probable asbestos exposure during service.  Based on this evidence, the Board finds that the Veteran had exposure to asbestos during service and the presence of an in-service injury is demonstrated.  

The Board must now determine whether the Veteran's lung conditions are etiologically related to his in-service exposure to asbestos.  Service treatment records do not indicate such a relationship; they are negative for evidence of a lung or respiratory disability.  The Veteran's chest and lungs were normal upon examination for separation in July 1971 and chest X-rays performed throughout his almost 10 years of active service were negative.  Additionally, the Veteran denied experiencing any shortness of breath, chronic cough, or chest pain or pressure on a July1971 report of medical history.  There is also no objective evidence of respiratory complaints or treatment until almost 30 years after the Veteran's separation from active duty in July 1971.  

The Board also finds that the weight of the competent medical evidence is against a link between the Veteran's disability and active duty service.  In support of the claim, the Veteran submitted two private medical opinions.  The first is from a private pulmonologist who examined the Veteran in November 2008.  The pulmonologist suspected that the Veteran's occupational exposures, including repairing airplanes and post-service work as an automobile mechanic, put him at risk for significant dust exposure which, when combined with his smoking, caused COPD.  Although the private pulmonologist noted the Veteran's in-service history of dust exposure through his work as an aviation mechanic, the Board finds that the probative value of the medical opinion is lessened due to the non-service risk factors for lung disease identified by the physician, including the Veteran's long history of smoking.  In essence, the medical opinion is speculative and too general to support the claim.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty).

Similarly, the Board finds that the probative value of the second private medical opinion submitted by the Veteran is diminished.  The second opinion, also dated in November 2008 and provided by the Veteran's family practice physician, stated that the Veteran's COPD was due in large part to his significant in-service asbestos exposure.  The opinion was not accompanied by any supporting rationale or reference to evidence from the Veteran's medical records, and did not include a discussion of the other lung disease risk factors identified by the private pulmonologist, including the Veteran's smoking history.  The Board therefore finds that the November 2008 opinion from the family practice physician is of limited probative value as it is not supported by any basis or rationale.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed).

The record contains a medical opinion weighing against the claim for service connection and the Board finds that this opinion is entitled to significant probative weight.  The Veteran underwent a VA respiratory examination in July 2008.  After physically examining the Veteran and reviewing the claims file, the examiner concluded that the Veteran's COPD was more likely than not related to his history of cigarette smoking and aging.  It was unlikely related to asbestos exposure in service based on the character of the Veteran's disability, as asbestosis results in restrictive lung disease and pleural plaques.  The Veteran's diagnosed condition was obstructive lung disease, established by PFT and bronchodilator results.  The VA examiner's opinion was provided following complete review of the Veteran's medical records, including service treatment records, and was fully supported by a well-reasoned rationale.  The Board therefore finds that it is entitled to significant probative weight.  Nieves- Rodriguez, supra.  Additionally, the Board notes that the Veteran had no evidence of asbestosis upon chest CT in November 2007, providing further evidence against the claim for service connection based on asbestos exposure.  

The Board concludes that the weight of the competent medical evidence is against the claim.  Although the record contains two medical opinions in support of the claim, these medical opinions are of little probative value.  In contrast, the July 2008 VA examiner's medical opinion is well-supported and was rendered following review of the Veteran's complete records.  The VA medical opinion, coupled with the results of the November 2007 chest CT demonstrating no asbestosis, outweigh the medical opinions submitted by the Veteran in support of his claim.  

The Board has also considered the Veteran's statements connecting his lung conditions to active duty service and asbestos exposure.  The Board notes that lay persons are competent to provide opinions on some medical issues.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  The specific issue in this case, however, falls outside the realm of common knowledge of a lay person.  Jandreau, 429 F.3d at 1377 (lay persons not competent to diagnosis cancer).  The Veteran is competent to testify as to observable symptoms, but his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence.  Id.  Furthermore, the Board notes that the Veteran has not reported a history of continuing symptoms since service.  In fact, he has not provided any specific statements in support of the claim.  The Board discusses the Veteran's reported symptoms in the context of using lay evidence to prove the nexus element of a service connection claim under 38 C.F.R. § 3.303(a) and (d), but not 38 C.F.R. § 3.303(b).  See Davidson, 581 F.3d 1313; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In sum, the weight of the competent evidence of record is against a nexus between the Veteran's COPD, emphysema, and his active duty service.  Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is denied.  38 U.S.C.A. § 5107(b) (West 2002).


Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

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; (3) and that the claimant is expected to provide.  Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a June 2008 letter.  The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the June 2008 letter.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  The Veteran was provided a proper VA examination in July 2008 in response to his claim.  

VA has also obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records.  In January 2009, the Veteran submitted a copy of a November 2008 consultation report and medical opinion from a private pulmonologist.  In response, VA contacted the Veteran in a May 2012 letter and asked that he complete a medical release form to allow VA to obtain complete treatment records from the pulmonologist on his behalf.  No response to this request was received.  It is the responsibility of Veterans to cooperate with VA and any failure to develop the claim clearly lies with the Veteran himself.  See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). 

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  





ORDER

Entitlement to service connection for a lung disability, currently diagnosed as COPD and emphysema, is denied. 



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs