Citation Nr: 1313898	
Decision Date: 04/25/13    Archive Date: 05/03/13

DOCKET NO.  11-28 940	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for a lung disability, claimed as chronic obstructive pulmonary disease, to include as due to asbestos exposure.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel


INTRODUCTION

The Veteran served on active duty from November 1952 to October 1956.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  In May 2012 and January 2013, the Board remanded the appeal for further development, and it now returns to the Board for appellate review.

The Veteran testified at an April 2012 hearing by the undersigned Veterans Law Judge held sitting at the RO.  A transcript of that hearing is associated with the claims file.

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

A lung disability did not have its onset during service and is not the result of disease or injury incurred during the Veteran's military service.


CONCLUSION OF LAW

The criteria for service connection for a lung disability are not met.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Stegall Considerations

This case was remanded by the Board in May 2012 and January 2013.  The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders."  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The purpose of the first remand was to obtain VA treatment records dated from February 2011 forward and to obtain an addendum opinion from the March 2012 VA examiner.  The second remand was issued to obtain VA treatment records dated from May 2007 to October 2008 and from May 2012 forward.  A review of the post-remand record reveals that the requested VA treatment records have been associated with the claims file and the addendum was received in June 2012.  Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the May 2012 and January 2013 remands, and that the Board may now proceed with adjudication of the claim.

II. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claims and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

The VCAA requires that VA inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established.  

VCAA notice must be provided before the initial unfavorable AOJ decision on the claims for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, the Veteran was provided with a VCAA notification letter in February 2010, prior to the initial unfavorable AOJ decision issued in March 2010.  The pre-adjudicatory VCAA notice informed the Veteran of the evidence necessary to establish service connection, of how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration.  
This letter also included information regarding the substantiation of disability ratings and effective dates.  Therefore, the Board finds that the Veteran received all necessary VCAA notice prior to the initial adjudication of his claim.  

Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied.  See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 
§ 3.103(c)(2) (2012) requires that the Veterans Law Judge or Decision Review Officer who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the Board hearing, the Veteran gave extensive testimony on his in-service asbestos exposure and post-service symptoms and complaints.  The VLJ and the accredited representative from the Disabled America Veterans asked questions to ascertain the existence of outstanding treatment evidence and whether the Veteran had evidence of a nexus between his current lung disability and his military service.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearings.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination.  The Veteran's service treatment records, VA medical records, and the report of a March 2010 VA examination with June 2012 addendum were reviewed by both the AOJ and the Board in connection with adjudication of the claim.  The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim.  

With regard to the VA examination, the Board notes that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  In this case, the examiner reviewed the claims file, noting relevant documents in service treatment records and post-service treatment evidence, documented the Veteran's subjective complaints and medical history, and examined the Veteran.  The examiner also reviewed pertinent medical literature.  The examiner then provided an opinion that was supported by a rationale based on all the available evidence.  There is nothing to suggest that the examiner's opinion is not sufficiently based in the facts of the case or that he reached an arbitrary conclusion.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159 (c)(4). 

In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran).  Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim.

III. Analysis

Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a).  Service connection may also 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).     

In order to establish direct service connection for a disability, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disability is not a determination "medical in nature" and is capable of lay observation.  Barr, 21 Vet. App. at 309.

With regard to asbestos-related claims, there is no specific statutory guidance, 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 from asbestos exposure.  The 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).

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 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).
Thus, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether 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 provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, do not create a presumption of exposure to asbestos.  See Dyment v. West, 13 Vet. App. 141 (1999).  Hence, medical nexus evidence is required in claims for asbestos related disease.  See VAOPGCPREC 04-00.

The Veteran contends that he has a lung disability as a result of exposure to asbestos in pipes while serving aboard three different ships in the U.S. Navy.  Therefore, he contends that service connection is warranted for a lung disability.
Initially, the Board notes that the Veteran has a diagnosis of chronic obstructive pulmonary disability (COPD).  Additionally, VA treatment records note diagnoses of acute bronchitis and recurrent pneumonia, which was accompanied by hemoptysis.  Therefore, the record establishes that the Veteran has a current disability with respect to this claim.  

A review of the service treatment records reflects no complaint, treatment, or diagnosis related to the lungs.  A March 1956 chest-X-ray revealed a normal chest.  The clinical examination at separation in October 1956 was normal.

In addition, the competent evidence does not establish that the Veteran's current lung diagnosis is related to asbestos exposure in service or is otherwise a result of his military service.  A VA examination was performed in March 2010.  The examiner indicated that the Veteran had mild to moderate COPD, but no findings on X-rays or CT that were typical of asbestos exposure.  He noted that the Veteran's episodes of hemoptysis were due to lung infections.  The examiner noted that the Veteran was exposed to asbestos for four years in the Navy and for the almost 20 years he worked in a steel mill after service.  However, the examiner found that the COPD was most likely related to the Veteran's long history of smoking, which was 32 years ending in 1991 or 1992 according to the Veteran.  The record reflects that the Veteran continued to use smokeless tobacco products after he stopped smoking.  Nevertheless, the examiner did not provide a rationale for that opinion.  

An addendum to the opinion was received in June 2012.  The examiner reviewed the relevant medical literature and observed that no causal relationship between asbestos exposure and COPD had been found, and that there was some discussion of a relationship between COPD and dust in the workplace and smoke in the home, but the vast majority of literature focused on the relationship between COPD and smoking.  The examiner again noted that the Veteran did not have signs of pulmonary asbestosis, which is a lung disability associated with asbestos exposure.  He indicated that, while the Veteran was exposed to asbestos, exposure does not equal disease.  The examiner reported that X-rays showed some minimal interstitial disease, which suggested dust exposure during the Veteran's 20 years working in a steel mill, and which did not play much of a role in the COPD. He also observed that there was evidence of old granulomatous disease that was likely due to histoplasmosis infection during the Veteran's childhood.  The examiner stated that such was a common finding on X-ray and had no effect on COPD.  He concluded again that the COPD was as likely as not caused by or related to long-term smoking.  

There are no contradictory medical opinions in the record.  The Board observes that an April 2005 VA treatment record shows that COPD was an established diagnosis.  There is no earlier dated reference to COPD in the file, and the Veteran did not file a claim for the disability until January 2010, and his prior claims, which date back to January 2001, were concerned with bilateral hearing loss and tinnitus.  The lapse in time between service discharge in October 1956 and the first complaints and diagnoses weighs against the Veteran's claim.

The Board acknowledges the Veteran's statements in support of his claim.  He is competent to speak to his symptomatology and facts he can readily perceive, e.g., shortness of breath.  See Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007) However, he is not competent to ascribe a cause to these symptoms.  Providing an etiology of a lunch disability requires medical expertise and is not capable of lay analysis.  Id.  In this case, the Board notes that the Veteran has had respiratory symptoms related to not just COPD, but also to bronchitis and pneumonia.  Accordingly, the Board determines that the competent and probative evidence of record does not support a finding that the Veteran's COPD is a result of his military service.  

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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  However, as reflected by the above discussion, the preponderance of the evidence is against the Veteran's claim of a relationship between his current lung disability and his military service.  Therefore, his claim for service connection a lung condition, claimed as chronic obstructive pulmonary disease, to include as due to asbestos exposure must be denied. 

ORDER

Entitlement to service connection for a lung disability, claimed as chronic obstructive pulmonary disease, to include as due to asbestos exposure, is denied.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs