Citation Nr: 1313006	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO. 09-31 583	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure. 


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel


INTRODUCTION

The Veteran served on active duty from December 1963 to September 1965.

This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Jackson, Mississippi. 

The Veteran appeared before the undersigned Veterans Law Judge at a personal hearing at the Huntington, West Virginia RO in July 2011. A copy of the hearing transcript is of record and has been reviewed. 

In September 2012, the Board granted service connection for tinnitus; denied service connection for an acquired psychiatric disorder; and remanded the claim of service connection for a respiratory disorder to the Appeals Management Center (AMC) for further development. 

In a September 2012 rating decision, the AMC implemented the Board's grant of service connection for tinnitus. This award represents a complete grant of the benefits sought with respect to tinnitus.


FINDING OF FACT

The probative medical evidence reflects that the Veteran does not have an asbestos-related lung condition as a result of exposure to asbestos in service or a lung condition due to any incident of his active duty service, to include an episode of bronchopneumonia in January 1964. 





CONCLUSION OF LAW

The criteria for the establishment of service connection for a respiratory disorder are not met or approximated. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.




Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These notice requirements apply to all elements of a claim, including the disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, a timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has found that VCAA notice errors are not presumptively prejudicial. Rather, prejudice is determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The VCAA duty to notify was initially satisfied by way of letters sent to the Veteran in April and December 2008. Those letters fully addressed all notice elements and were sent prior to the initial unfavorable decision on appeal. An additional letter was sent to the Veteran in September 2012. The claim was readjudicated by way of a February 2013 SSOC.

VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records (STRs), VA outpatient treatment records, and private medical records. The Veteran was afforded a VA respiratory examination in October 2009 and as mentioned, a personal hearing. 

The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained. In March 2013 the Veteran indicated that he had no additional evidence to submit regarding his appeal and asked that his case be certified to the Board immediately. No further notice or assistance to him is required.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). He has received all essential notice, has had a meaningful opportunity to participate in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VA's duties to notify and assist the Veteran have been fulfilled.

In Bryant v. Shinseki, 23 Vet. App. 488  (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

During the Board hearing, the undersigned Veterans Law Judge identified the issue on appeal and explained that a medical opinion linking his current respiratory disorder to asbestos exposure was needed to substantiate the claim. Information was also obtained to clarify the Veteran's arguments. He stated, in pertinent part, that he was to undergo a lung examination in September 2011 at VA, and the appeal was specifically remanded in September 2012 to obtain any such records. Those records are included in the virtual file.

The hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim, and to suggest the submission of evidence when such evidence is missing or has been overlooked, has been satisfied. See id. at 496-97. 

The Veteran has not alleged that there were any deficiencies in the Board hearing under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. The Board has not identified any hearing deficiency. In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication that the Veteran had any additional information to submit. In this case, given the extensive development of the Veteran's claim discussed above, particularly with respect to obtaining outstanding VA medical evidence, the Board finds no deficiency in the Board hearing or in development of the claim. See id. 

Factual Background

The Veteran's STRs show that in January 1964, the Veteran reported to a health clinic with headache, fever, chills, weakness, muscle aching, productive cough, and pleuritic chest pain. He was admitted to the hospital with a presenting diagnosis of acute bronchitis. After the appropriate testing, that diagnosis was revised to bronchopneumonia of the right lower lobe. After treatment, a chest examination indicated normal findings and he was discharged from the hospital, fit for duty. Separation examination report dated in August 1965 indicates a normal clinical evaluation of the lungs and chest; no respiratory condition was noted or diagnosed.

Post-service, in October 1976, the Veteran presented to the emergency department of a private hospital with complaints of a cough productive of sputum and an earache; impression was rule out strep throat. 

In August 1978, the Veteran presented to the same private emergency room where he was diagnosed with bronchitis. In September 1982, he presented again to the private hospital when impressions of bronchitis and a questionable diagnosis of early pneumonia were made.

In September 1986, the Veteran again presented to a private emergency department with a complaint of chest discomfort and a productive cough and difficulty breathing. The diagnostic impression was costochondritis.

In November 1986, the Veteran underwent a private pulmonary function test (PFT). It was noted that the Veteran was a 41 year old with a 46 + pack/ year history of cigarette smoking who had a chronic productive cough, wheezing, and shortness of breath with mild exertion. PFT showed a mild reduction in forced expiratory flow rate (FEF) 25-75 percent and was otherwise normal.

A PFT conducted in September 1991 showed evidence of mild obstructive ventilator defect with reversible bronchospasm and some air trapping and mild impairment of gas exchange.

A June 2008 PFT showed moderate obstruction; no post bronchodilator response; air trapping and normal diffusing capacity.

A computed tomography (CT) scan of the chest taken in September 2009 showed evidence of hyperaeration with chronic emphysematous disease.

In October 2009, the Veteran was afforded a VA compensation examination to determine the current nature and etiology of his respiratory condition. Mild obstructive pulmonary disease was diagnosed. Ultimately, the examiner concluded that the Veteran does not have pulmonary asbestosis and his current chronic obstructive pulmonary disease is at least as likely as not related to his long term smoking history.

The Veteran had a VA pulmonary consultation in May 2010. The physician reviewed the latest PFT and CT findings, noting mild obstruction and stable, non-calcified pulmonary nodules. The Chief of the Pulmonary Section indicated in a May 2010 that there is nothing on PFTs or CT to suggest asbestosis.

In September 2011, the Veteran had another CT chest scan. Centrilobular and paraseptal emphysematous changes and asymmetric bronchiectasis were again identified. Also, there were stable nodular foci throughout the lungs, most predominant in the left lower lobe which has been stable since 2008.

The Veteran primarily asserts that his current respiratory disorder is related to in-service asbestos exposure. At the July 2011 Board hearing, he testified that he was exposed to paint fumes multiple times per week in performance of his duties during service aboard a World War II era ship. He also stated that he was exposed to dust while grinding in preparation for painting. The Board finds that the preponderance of the evidence is against the claim, and the appeal will be denied. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. 
§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). 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 active service. 38 C.F.R. § 3.303(d) (2012).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 

A disorder also may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or was seen in service with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).

In order to establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third service connection requirements to link a current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). 

 A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 
When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).

In cases where it is claimed that asbestos exposure during service caused a current disability, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432  (1993); Ashford v. Brown, 10 Vet. App. 120, 124-25 (1997). The pertinent portions of the VA Adjudication Procedure Manual (M21-1MR) do not constitute a presumption of asbestos exposure; rather, it provides a guideline for adjudication. See VAOPGCPREC 04-2000 (April 13, 2000). 

VA must address two sequential questions. First, it must determine whether service records demonstrate asbestos exposure during active duty. If so, the second question involves whether there is a relationship between that exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (December 13, 2005). 

With regard to the initial determination, the M21-1MR defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. Common materials that may contain asbestos include steam pipes for heating units and boilers; ceiling tiles; roofing shingles; wallboard; fire-proofing materials; and thermal insulation. Due to concerns about the safety of asbestos, the use of materials containing asbestos has declined in the United States since the 1970s. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(a). 

Some of the major occupations involving asbestos exposure include mining; milling; work in shipyards; 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, Part IV, Subpart ii, Chapter 2, Section C (9)(f). 

If it is determined that a Veteran was exposed to asbestos during service, the next determination is whether there is a relationship between that exposure and the claimed disease. 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. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(b). 

Specific effects of exposure to asbestos include lung cancer that originates in the lung parenchyma rather than the bronchi, and eventually develops in about 50 percent of persons with asbestosis; gastrointestinal cancer that develops in 10 percent of persons with asbestosis; urogenital cancer that develops in 10 percent of persons with asbestosis; and mesothelioma that develops in 17 percent of persons with asbestosis. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(c). Disease-causing exposure to asbestos may be brief, and/or indirect. Id. Current smokers who have been exposed to asbestos exposure face an increased risk of developing bronchial cancer. The latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(d). 

A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion end-respiratory rales over the lower lobes; compensatory emphysema; clubbing of the fingers at late stages; and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(e). 

The Veteran's service personnel records confirm that he served aboard the USS Zellars, a World War II destroyer, while in the Navy beginning in November 1964. Although his Report of Separation from the Armed Forces (DD-214) does not specify his military occupational specialty (MOS), the Veteran reported being a boatswain's mate (see July 2009 VA audiologic examination report and hearing transcript) and has testified that aboard ship, he was assigned to the Deck Division which was responsible for keeping the ship clean and freshly painted. However, the preponderance of the competent evidence indicates that the Veteran does not currently have an asbestos-related lung disorder, but rather obstructive lung disease and stable pulmonary nodules.  

The October 2009 VA examination report indicating that the Veteran does not have pulmonary asbestosis is highly probative evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion depends upon whether it is factually accurate, fully articulated, and contains sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). This examination report is highly probative because it is based on the facts and data of record and is supported by a comprehensive explanation. 

The examiner addressed the PFT and imaging findings, as well as the Veteran's contentions regarding asbestos exposure in service. The examiner stated that the Veteran's PFT and imaging studies show no evidence of asbestos exposure. The examiner explained that the best way to follow interstitial disease stemming from pulmonary asbestos exposure is by looking at the Diffusion Capacity of the Lung for Carbon Dioxide by the Single Breath Method (DLCO (SB)) findings on PFT, and the Veteran in this case has normal DLCO results. Additionally, the examiner stated that although the other effects of occupational exposures could cause lung cancer, the Veteran has not been diagnosed with lung cancer and has instead shown to have stable pulmonary nodules. 

The examiner determined that the most obvious cause of the Veteran's obstructive lung disease is his long-standing (at minimum,38 packs per year) history of cigarette smoking. The law provides that a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to a Veteran's use of tobacco products during service. See 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300(a). 

The finding that the Veteran does not have asbestosis was subsequently confirmed by a VA Chief of Pulmonary in a May 2010 addendum. This evidence is also probative as the physician had the benefit of reviewing the Veteran's contentions, as well as his PFT and CT results. 

Although the Veteran argues that his current respiratory disorder is due to asbestos exposure, the question of whether a current disorder may be related to asbestos exposure involves a medical issue. The question of etiology in this case may not be competently addressed by lay evidence. See Davidson, 581 F.3d at 1316. Further, the probative medical evidence shows that the Veteran does not have an asbestos-related lung condition. His lay assertion has been investigated by competent medical examination and found not supportable. Jandreau, 492 F.3d at 1376-77. 

The Board also considered whether the Veteran's current respiratory disorder is related to his active service on a direct basis. As indicated above, the Veteran was diagnosed with bronchopneumonia in the right lower lobe while in service. That condition resolved after hospital treatment. There is no evidence of any subsequent respiratory problems during service, and upon service discharge, examination of his lungs revealed no abnormality. 

Post-service, respiratory problems are not shown in the record until 1978 when the Veteran was diagnosed with bronchitis. Although not dispositive by itself, the absence of any indication of a relevant medical complaint until many years after service is relevant in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

There is no evidence of a nexus between the current disorder and service. After examining the Veteran and reviewing the claims file, to include the STRS, the examiner determined that the Veteran's current disorder is more likely related to his history of cigarette smoking. This October 2009 VA opinion is highly probative evidence, as it relied on sufficient facts and data, provided a rationale for the opinion, and contains sound reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not offered a medical opinion linking his current respiratory disorder directly to service, to include the in-service episode of bronchopneumonia.

The Veteran is competent to report observable symptoms, such as a cough or shortness of breath. However, in this case, the question of whether his current respiratory disorder is related to service is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins).  Because the record is negative for any evidence to suggest that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning a respiratory condition, he is not competent to report the etiology of his respiratory disorder. Accordingly, the competent medical evidence outweighs the Veteran's lay reports as to etiology. 

In conclusion, the preponderance of the evidence is against a finding that the Veteran has an asbestos-related pulmonary disease or other respiratory disorder related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 




ORDER

Service connection for a respiratory disorder, to include as due to asbestos exposure, is denied. 

____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs