Citation Nr: 1313449	
Decision Date: 04/22/13    Archive Date: 05/03/13

DOCKET NO. 12-17 893	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

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


REPRESENTATION

Veteran represented by:	Colorado Division of Veterans Affairs


ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel



INTRODUCTION

The Veteran served on active duty from February 1944 to May 1946.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of a special processing unit at the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO), known as the Tiger Team. Jurisdiction over the case remains with the Denver, Colorado RO. 

In a June 2012 rating decision issued by a Decision Review Officer (DRO), the DRO granted the Veteran's claim for service connection for tinnitus, thereby constituting a full grant of the benefit sought on appeal with respect to that issue. Thus, this matter is not in appellate status before the Board and need not be addressed further.

During the pendency of this appeal, the Veteran was scheduled for a video conference hearing before a member of the Board in November 2012, however, the Veteran cancelled his hearing request prior to the scheduled hearing and no motion for a new hearing was received thereafter. See 38 C.F.R. § 20.704(d) (2012).

In February 2013, the Board denied the Veteran's claim for service connection for a low back disability and remanded the claim for a respiratory disability. 

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 from June 1999 to April 2012. A supplemental statement of the case (SSOC) was issued in March 2013, 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).




FINDING OF FACT

The probative evidence of record demonstrates that a respiratory disability, diagnosed as chronic obstructive pulmonary disease (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 disability, claimed as due to asbestos exposure in service, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations 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. 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).

The Veterans Claims Assistance Act (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (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 February 2012 rating decision, he was provided notice consistent with the requirements of the VCAA in October 2010. 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 information in October 2010 about the establishment of disability ratings and effective dates if a claim of service connection was successful. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra.

In May 2011, the National Personnel Records Center (NPRC) reported that the record may be fire-related; however, copies of all available service treatment records were being mailed. The Court has noted that when "VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources."  Washington v. Nicholson, 19 Vet. App. 362-369-71 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). In this case, the available service treatment records include copies of the entrance and separation examination as well as other reports of sick call treatment, dental treatment and immunization records. The service treatment records, therefore appear to be complete. 

The Board notes that the December 2011 VA examination report and the February 2013 VA addendum reflect that the examiner reviewed the Veteran's 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). Thus, the medical examination and addendum are 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). 

This case was remanded by the Board in February 2013 to ensure compliance with VA protocols involving claims with asserted asbestos exposure and to provide the Veteran with an adequate VA opinion for his respiratory disability. The VA Adjudication Procedure Manual, M21-MR, discusses claims based on asbestos exposure, including the general effects, details on diseases resulting from asbestos exposure, diagnostic indicators, occupational exposures, exposure to asbestos during World War II (WWII), and consideration of service connection for disabilities resulting from exposure to asbestos during service. See VA Adjudication Procedure Manual, M21-MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 9, pp.2-C-5-9 (Mar. 11, 2011). However, on this review, the medical evidence of record does not demonstrate has an asbestos-related disease and the March 2013 SSOC issued by the RO properly considered the Veteran's claim for service connection for a respiratory disability. Moreover, as the VA examiner provided the opinion requested and included an appropriate rationale to support his opinion, he therefore complied with the Board's remand instructions and development requested by its February 2013 remand has now been satisfactorily completed and substantially complied with respect to the current respiratory disability, claimed as due to asbestos exposure in service. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) ((remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with)). 

All relevant evidence necessary for an equitable resolution of the issues 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, an adequate VA examination, an adequate VA addendum and statements from the Veteran and his representative. The Veteran has not indicated that he has any further evidence to submit to VA, or which VA must 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).

The Merits of the Claims

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.

With regard to VA examinations, the Board notes that the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31, 35 (1999).

In statements presented throughout the duration of the appeal, the Veteran has maintained that his current respiratory disability, diagnosed as COPD, is related asbestos exposure during his active service. 

The Veteran's service records reflect that he served aboard U.S. Navy ships. His Report of Separation from Active Service (DD form 214) reflects that his military occupational specialty (MOS) was that of a machinist's mate. There is a probability that the Veteran was exposed to asbestos during his service. 

Service treatment reports are absent of any findings of a respiratory disability. The February 1944 entrance examination revealed a normal respiratory system upon clinical evaluation. A February 1944 chest x-ray performed at that time demonstrated negative findings and the Veteran reported that he never had asthma at that time. In a June 1944 service treatment report, the Veteran was diagnosed with acute catarrhal fever, with physical examination findings that were essentially negative except for subjective complaints and the Veteran had an uneventful recovery with no symptoms noted. The May 1946 separation examination revealed normal findings of the respiratory system upon clinical evaluation, a chest x-ray was reportedly normal and the Veteran's history of "cat fever acute" was noted as not disqualifying. A May 1946 chest x-ray report revealed negative findings. 

The post service medical evidence includes private medical records from November 1998 to November 2010, VA outpatient treatment reports from June 1999 to April 2012, a December 2011 VA examination and a February 2013 VA addendum report. 

Private medical records from November 1998 to November 2010 and VA outpatient treatment reports from June 1999 to April 2012 demonstrate that the Veteran has been treated for and diagnosed with COPD. VA outpatient treatment reports from August 2004 and March 2006 reflect that the Veteran received tobacco counseling, he reported in August 2004 that he had used tobacco in the past year and reported in March 2006 that he was currently attempting tobacco use cessation. In a May 2009 private treatment report, the Veteran's private physician noted a history of COPD from his prior cigarette smoking. February 2010 and September 2010 private treatment reports also reflect pulmonary function testing results indicated moderate respiratory impairment, restrictive in nature, with a reversible element and restrictive airway disease. A January 2012 VA computerized tomography (CT) report of the chest revealed findings consistent with COPD, no specific findings for asbestosis and findings of atherosclerosis and pancreatic atrophy. 

In a December 2011 VA examination, the Veteran was diagnosed with COPD. He reported a history of having a gradual onset of shortness of breath in 1996 and stated he had been on Symbicort for the past five years. He reported a history of congestive heart failure (CHF) and had been using diuretics for the past six months. The Veteran stated he was in the U.S. Navy as a machinist's mate, aboard a ship for three years, working and exposed to asbestos constantly. He also had a history of smoking one pack per day for 14 years and reportedly had quit smoking in his 20s, approximately around 1955. The Veteran reported having chronic sinus and allergy problems for the past 20 years. 

Following a physical examination, the examiner opined that the claimed condition, in this case COPD, was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, in this case the claimed asbestos exposure in service. The examiner found that there was insufficient clinical evidence to support a diagnosis of asbestosis and that it was more likely than not that the Veteran's COPD was secondary to his history of smoking as well as his history of chronic allergies. 

In February 2013, the Board remanded the claim for an additional opinion regarding the Veteran's respiratory disability. 

In a February 2013 VA addendum, the examiner who performed the December 2011 VA examination provided an additional opinion regarding the Veteran's respiratory disability. He reviewed the claims file again and noted the Veteran's treatment in service in June 1946 for catarrhal fever and his May 1946 separation examination findings. The examiner also cited to medical literature and his online research regarding catarrhal fever from 1940. The medical literature indicated that catarrhal fever was a gamma herpes virus that did not affect humans and required laboratory testing to confirm the diagnosis in cattle. The examiner's online research found that a dictionary of old medical terms reflected that catarrhal fever was a term for a group of respiratory tract diseases, including the common cold, influenza and lobular pneumonia. He opined that the Veteran's currently diagnosed COPD was not etiologically related to catarrhal fever in June 1944. The examiner found that, per his cited research, catarrhal fever did not affect humans.  He also explained that the Veteran's symptoms were more consistent with mild upper respiratory infection, which was also consistent with the diagnosis of catarrhal fever as it had probably been used in 1944.  Finally, he found that the Veteran's chest x-ray and physical examination at discharge were normal, indicating there was no sequela from this illness, whatever it actually had been. 

Entitlement to service connection for a respiratory disability, claimed as due to asbestos exposure in service, is not warranted. As noted above, service records reflect that the Veteran served as a machinist's mate. 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, to include any asbestos exposure. 

While not dispositive of the issue of whether service connection may be granted, the service treatment reports include a diagnosis of catarrhal fever in June 1944. However, physical examination findings at that time were essentially negative except for subjective complaints and it was noted that the Veteran had an uneventful recovery with no symptoms. In addition, the May 1946 separation examination revealed normal findings of the respiratory system upon clinical evaluation, the Veteran's history of "cat fever acute" was noted as not disqualifying and a chest x-ray was revealed negative findings at separation. 

There is no medical evidence which links the Veteran's respiratory disability to service. The Veteran is competent to state that he was exposed to asbestos during his active service and these statements are also credible, as they are also supported by his service information. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). However, he is not competent to diagnose or medically attribute any in-service asbestos exposure to a current respiratory disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The evidence does not demonstrate that the Veteran has the requisite medical competence to either determine the etiology of any current respiratory disorder or to diagnose or identify a respiratory condition. 

While the Veteran disputes that COPD is related to any history of smoking, stating that he had a short history of smoking when he was young, from ages 15 to 24, this history, along with the Veteran's history of chronic sinus and allergy problems for the past 20 years, was considered by the VA examiner in the December 2011 VA examination in furnishing his opinion. See February 2012 notice of disagreement (NOD); see also July 2012 VA form 9; December 2011 VA examination. Moreover, there is no duty under the law for VA to ascertain the etiology of a claimed disorder  - only investigate whether it is linked in some aspect to military service on a direct, secondary or aggravational basis. At all events, the Veteran's lay contentions have been fully investigated by a competent medical examiner and were used in support of his ultimate opinion. Jandreau, supra. As noted above, the Veteran is not competent to diagnose or medically attribute any in-service asbestos exposure to a current respiratory disorder and his statements disputing any relationship of COPD to his smoking history are not competent. See id. 

The post-service medical evidence of record demonstrates that there is no evidence of treatment for COPD in the record until March 2006, wherein a VA x-ray report demonstrated findings of mild COPD, approximately 60 years after the Veteran's separation from active service. In addition, the medical evidence fails to demonstrate the presence of a current asbestos related disability. As noted above, a January 2012 VA CT of the chest revealed findings consistent with COPD and no specific findings for asbestosis.  

For the reasons stated above, the December 2011 VA examiner both in that report and in his February 2013 addendum clearly investigated the Veteran's contentions in light of his reported history and the current state of medical science, and provided a probative opinion indicating that the Veteran's respiratory disorder is not related to service. 

The appeal is therefore denied. 

Accordingly, the preponderance of the evidence is against the claim. Service connection for a respiratory disability, claimed as due to asbestos exposure in service, is not warranted and the appeal will be denied. 

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 disability, claimed as due to asbestos exposure in service, that doctrine is not applicable. 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 ON NEXT PAGE







ORDER

Service connection for a respiratory disability, claimed as due to asbestos exposure in service, is denied. 



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



Department of Veterans Affairs