Citation Nr: 1313801	
Decision Date: 04/25/13    Archive Date: 05/03/13

DOCKET NO.  10-44 187	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for pulmonary disorder due to asbestosis, to include chronic obstructive pulmonary disease (COPD).  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

N. L. Rippel, Counsel


INTRODUCTION

The Veteran had active naval service from September 1958 to September 1962. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal.


FINDING OF FACT

A pulmonary disorder, to include COPD, was not demonstrated in service, and there is no competent and credible evidence of a nexus between any current pulmonary disorder (including COPD) and service, to include conceded in-service exposure to asbestos. 



CONCLUSION OF LAW

A pulmonary disorder, to include chronic obstructive pulmonary disease, was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

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). 

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The record reflects that the Veteran was mailed letters in December 2008 and January 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence, and providing him with appropriate notice with respect to the disability-rating and effective-date elements of his claims.  He was also asked to provide specifics regarding his reported asbestos exposure during active service.  These were mailed prior to the issuance of the original rating decision on appeal.

The Board also finds the Veteran has been afforded adequate assistance in response to his claims.  The Veteran's service treatment records (STRs) and service personnel records (SPRs) are on file and VA Medical Center treatment notes have been obtained.  He was provided a VA examination in April 2010 which addresses the issue on appeal.  

Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim.  The Board is also unaware of any such evidence.

Accordingly, the Board will address the merits of the claim.

Legal Criteria

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §1131; 38 C.F.R. § 3.303.

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, VA has issued a circular on asbestos-related diseases.  DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular) provides guidelines for considering compensation claims based on exposure to asbestos.  The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21.  The Court has held that VA must analyze an appellant's claim of entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines.  Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).

The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease.  M21-1, part VI, para. 7.21(b)(1) and (2).  It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander.

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 service connection for diseases alleged to be related to asbestos exposure in service.  VA O.G.C. Prec. Op. No. 04-00.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The provisions of 38 U.S.C.A. § 1103 prohibit service connecting a disability as a result of disease or injury attributable to the use of tobacco products during a veteran's active service.  By its terms, 38 U.S.C.A. § 1103 is applicable to claims filed after June 9, 1998.  38 C.F.R. § 3.300.  As the Veteran's claim of entitlement to service connection for a pulmonary disorder, to include as due to asbestos exposure, was presented after June 9, 1998, 38 U.S.C.A. § 1103 must be applied in this case.

Analysis

The Veteran has asserted that he was exposed to asbestos while serving aboard a ship while in the Navy during active service.  A review of the Veteran's DD Form 214 shows that he did in fact serve aboard the USS Lake Champlain (CVS-39) while in active service.  He served as an electronics technician.  Therefore, the Board concedes the Veteran's exposure to asbestos while he was in active service. 

A review of the STRs is negative for treatment for or a diagnosis of any respiratory disability while the Veteran was in active service.  A September 1958 chest X-ray, part of an evaluation for heart murmur found at enlistment, was noted as essentially normal.  At that time, the Veteran reported shortness of breath if he ran up six flights of stairs but was deemed fit for military service from a cardiovascular standpoint with no evidence of organic heart disease.  At the time of his separation examination in August 1962, the Veteran did not report experiencing any symptoms that could be attributed to a respiratory disability while he was in active service.  The Veteran's lungs were clinically normal upon examination and there is no indication from the examination report that the examiner found any findings consistent with the presence of a respiratory disability at the time of the Veteran's separation from active service.  Chest X-ray remarks included, " Station Hosp. NAS Quonset Pt. 70mm # 24020 Negative"  

A review of the post-service medical evidence shows that the Veteran sought treatment for kidney issues in September 2008 at Kent Hospital.  Treatment records from Rhode Island Hospital dated in December 2008 include a CT scan of the chest showing pleural plaques that were consistent with asbestos exposure but reportedly did not show evidence of fibrosis to suggest a diagnosis of asbestosis.  Mild emphysematous changes were noted.  

The Veteran underwent VA respiratory examination April 2010 by an examiner who reviewed the private medical records and VA claims folder.  The Veteran reported shortness of breath with singing or exercise for the past 15 to 18 years.  He can no longer sing and gets short of breath climbing stairs.  He still smokes one pack of cigarettes per week and has done so since 17.  He has sleep apnea.  He denies medication for shortness of breath.  He denied pulmonary history of non-productive cough, productive cough, non-anginal chest pain, hemoptysis, fever, anorexia, night sweats, respiratory failure, cor pulmonale, RVH, pulmonary hypertension, chronic pulmonary mycosis, spontaneous pneumothorax, asthma, bronchiectasis, gunshot wound with retained missile in lung, pulmonary embolism or pleurisy with empyema.  There was a positive history of occasional wheezing, dyspnea and bronchiectasis.  There was dyspnea on mild exertion with possible related daytime hypersomnolence.  Pulmonary findings included decreased breath sounds bilaterally.  Diaphragm excursion and chest expansion were severely limited.  There were no signs of pulmonary restrictive disease.  Pulmonary function tests (PFTs) showed moderate obstructive ventilator impairment.  The diagnosis summary was moderate obstructive ventilator impairment.  The examiner opined that it is less likely as not that the Veteran's lung condition was caused by or a result of exposure to asbestos in the Navy.  The examiner explained that the recent PFTs showed that COPD limits his lung function.  The Veteran had a 40 pack year history of smoking and still smoked a pack per week.  Addressing the 2008 CT scan showing pleural plaques but no fibrosis, the examiner stated that the COPD was most likely caused by the long history of smoking and not his exposure to asbestos in service.  Finally, he noted that it was less likely as not that the lung condition COPD was caused by his exposure to asbestos in the Navy.  

In a March 2010 letter, the Veteran's wife indicated that the Veteran's desire for the prompt adjudication of his claim.  

In his October 2010 VA form 9, Substantive Appeal, the Veteran noted that as there was, "no clear evidence available for fibrosis in this one-time examination, therefore, it is my contention that a continuum of treatment will provide evidentiary information consistent with scarring of the airways."  

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that service connection for a pulmonary disorder, to include as due to alleged asbestos exposure during service, is not warranted on any basis.

The Board finds that the April 2010 VA medical opinion probative and definitive, based upon a complete review of the claims file, and findings in prior evaluation of the Veteran, and the examiner provided a detailed rationale for the conclusions reached.  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).  Accordingly, the opinion is found to carry significant weight.  Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Notably, there is no competent evidence contrary to this opinion of record, and the medical evidence of record supports this conclusion.  This examiner found, in essence, that the current lung disorder was not due to service, to include asbestos exposure therein, but was due to smoking.  

The Board acknowledges notation in the 2008 private treatment note that CT scan showed pleural plaques consistent with asbestos exposure but did not show evidence of fibrosis to suggest a diagnosis of asbestosis.  In this regard, the Board acknowledges that fibrosis is a condition that has been associated with asbestos exposure.  However, this condition was not shown on the CT scan.  Significantly, the VA examiner noted that he considered the CT scan in forming his opinion.  Thus, the Board concludes that the private medical evidence is essentially against the claim as well.  Even assuming, as VA has done, that the Veteran was exposed to asbestos in service, there is no competent medical evidence in the record establishing a nexus between any current pulmonary disorder and an in-service injury or event, including exposure to asbestos therein.  

The Veteran has submitted no competent medical nexus evidence contrary to the opinion cited above.  Furthermore, 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).  As there is no evidence of any relationship between a current pulmonary disorder and any incident of the Veteran's military service, including asbestos exposure, the claim must be denied.

To the extent that the Veteran himself believes that there is a medical nexus between the claimed condition and his military service and possible asbestos and other environmental exposures therein, it is well established that lay persons without medical training, such as the Veteran, are not competent to opine on matters requiring medical expertise, such as the etiology of a pulmonary disorder.  See 38 C.F.R. § 3.159 (a)(1) (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 also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  Here, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current pulmonary disorder.  Thus, the Veteran's beliefs do not constitute competent medical evidence.  In this circumstance, the Board gives more credence to the April 2010 VA examination opinion, as it was rendered after a thorough review of the Veteran's claims file and the history of the claimed disability.  

Also, while the Veteran has asserted in substantive appeal that it is his contention that a continuum of treatment will provide evidentiary information consistent with scarring of the airways, the evidence above simply is not demonstrative of any complaints, findings, or diagnosis of a chronic pulmonary or breathing condition during service or for many years thereafter.  Indeed, the record contains no consistent complaints of difficulty breathing until at least 2008.  In this regard, 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) (noting that a Veteran is competent to report on that of which he or she has personal knowledge).  The Board finds, however, that given the lack of contemporaneous medical evidence supporting such assertion prior to 2008, his statements to this effect are not credible and carry no probative weight.  In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

Accordingly, the Board concludes that a pulmonary disorder, including COPD was not incurred in or aggravated by active service, to include any asbestos exposure therein.  In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2002).



ORDER

Entitlement to service connection for lung disease due to asbestosis, to include chronic obstructive pulmonary disease (COPD) is denied.



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs