Citation Nr: 1314356 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 07-14 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a respiratory disorder, including as secondary to Agent Orange or asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active service from June 1968 to July 1971 and from May 1973 to June 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In August 2007, the Veteran testified at a Decision Review Officer (DRO) hearing before a local hearing officer. The Veteran's appeal was remanded by the Board in January 2011 to provide him with an examination and to obtain an opinion as to whether it was at least as likely as not that he had any current respiratory disability that was related to service. Such an opinion was obtained in February 2011. Accordingly, the Board finds that there has been substantial compliance with the directives of the January 2011 Remand, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). An appeal had also been perfected on the issue of entitlement to service connection for residuals of kidney stones and was addressed in the Board's January 2011 remand. However, this issue was granted in a March 2012 rating decision. As this was a full grant of the benefit sought on appeal, this issue is no longer in appellate status. FINDING OF FACT The weight of the probative evidence of record does not show that the Veteran's respiratory disorder is related to the Veteran's military service, or any incident therein, to include exposure to asbestos or Agent Orange. CONCLUSION OF LAW A respiratory disorder was not incurred in or aggravated by active military service, to include as due to exposure to asbestos or Agent Orange. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in January 2006 and March 2006, the Veteran was informed of the evidence and information necessary to substantiate the claim, the information required of the appellant to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. In the March 2006 letter, the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As VCAA notice was completed prior to the initial AOJ adjudication of the claims, such notice was compliant with Pelegrini. The Veteran's service treatment records are associated with the claims file, as are VA and private medical records. The Veteran's records from the Social Security Administration (SSA) are also associated with the claims file. During the course of this appeal, the Veteran had been provided several VA examinations, the most recent being in February 2011, addressing the medical matters presented by his respiratory disorders. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When 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). The Board finds that the opinion from the February 2011 VA examiner concerning the Veteran's respiratory disorders claim is more than adequate. The February 2011 VA examiner elicited information concerning the Veteran's military service and considered the pertinent evidence of record, including the Veteran's service treatment records. Supporting rationale was provided for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of service connection for a respiratory disorder has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was also afforded the opportunity to testify before a Decision Review Officer (DRO) in August 2007. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the DRO 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 August 2007 hearing, the Veteran was assisted by an accredited representative from the American Legion, whose line of questioning covered the elements of the claim that were lacking to substantiate entitlement to service connection. The Veteran's representative, and the DRO, asked questions to ascertain the date of onset of respiratory symptomatology and to determine whether the Veteran's current disability was related to 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. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). Here, the Veteran seeks entitlement to service connection for a respiratory disorder. Specifically, he asserts that he developed a respiratory disability as a result of exposure to unhealthy air (asbestos) while performing engine maintenance on ships during service, or as a result of exposure to Agent Orange while in Vietnam. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, 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). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). A review of the Veteran's service treatment records showed several notes related to respiratory problems. His June 1968 Report of Medical Examination upon enlistment indicated that his lungs and chest were within normal limits. On a subsequent October 1968 Report of Medical History, the Veteran indicated that he suffered from shortness of breath four years prior as a result of pneumonia with no sequelae. In June 1981, he complained of productive coughing and sweating, and X-rays revealed lower lobe pneumonia. In November 1981, the Veteran signed a statement acknowledging that he was overweight by current weight standards due to dietary indiscretion, which was a condition not considered a physical disability and which usually may be controlled by strict adherence to prescribed dietary control measures. The note further indicated that a 15-pound weight loss was recommended. In December 1981, he was treated for bronchitis after it was found that he had congestion in the upper lobes of his lungs. A June 1988 note from the Navy Asbestos Medical Surveillance Program indicated that the Veteran had a 1-to-5-year history of regular asbestos exposure related to his work as a maintenance person on inactive ships. However, his physical examination and X-rays were within normal limits at that time. The Veteran was again treated for acute bronchitis in August 1989. Significantly, however, he denied a history of hay fever, asthma, shortness of breath, pain or pressure in chest, or chronic cough at the time of his April 1990 Report of Medical History at retirement. Similarly, his corresponding April 1990 Report of Medical Examination at retirement indicated that his lungs and chest were within normal limits. The Veteran's service personnel records indicated that he served as an electrician's mate from June 1968 to July 1971, and again from May 1973 until the late 1970s, at which time he became a gas turbines systems technician. Post-service records include an October 2000 VA treatment note indicating "asthma-bronchitic," at which time the Veteran was prescribed a bronchodilator asthma inhaler. In February 2001, the Veteran sought treatment at Fairchild Air Force Base in Washington because of recurrent coughing and wheezing over the previous 5 months. Although the physician indicated that the Veteran apparently had always had some problem with prolonged coughs following respiratory infections, his current respiratory problems had been persistent since undergoing an exacerbation in October 2000. He was diagnosed as having recurrent bronchitis with clinical bronchospasm, although pulmonary function testing did not show obstruction. A November 2002 VA treatment note diagnosed him as having episodic dyspnea / recurrent bronchitis. Later in November 2002, the Veteran was referred for evaluation of possible reactive airways disease, having reported a 20-year history of intermittent shortness of breath associated with development of bronchitis and pneumonia, although he had never had a diagnosis of asbestosis or chronic obstructive pulmonary disease. The Veteran indicated that he had smoked cigarettes for 2 months in the 1960s, and has not smoked since. The Veteran was afforded a VA examination in May 2005, at which time he was diagnosed as having asthma without evidence of asbestosis and normal pulmonary function tests. However, the examiner opined that the Veteran's "asthma" was diagnosed several years after retirement from military service. The Veteran indicated that he smoked less than one pack of cigarettes per day for approximately 7 months at age 21, and denied the use of smokeless tobacco. The Veteran was afforded another VA examination in April 2006, at which time he was diagnosed as having respiratory distress with coughing attacks, but without documented abnormal pulmonary function tests. The examiner noted that there was a long history of the Veteran reporting asthma as a medical problem and indicating improvement with asthma medications, but no evidence of pulmonary function tests confirming an actual diagnosis of asthma. The examiner opined that it appeared that his current respiratory problems may have had their onset while he was in the military; however, the nature of his respiratory symptoms remained vague and were at best felt to be multifactorial, including secondary to gastroesophageal reflux disease, anti-hypertensive medications, obesity, and possible asthma. The examiner additionally postulated that his respiratory symptoms could possibly be manifestations of his somatoform disorder. In a June 2006 treatment note, a VA staff physician opined that the Veteran's asthma as likely as not started in service following his bout with pneumonia. The Veteran was afforded another VA examination in March 2007, at which time the examiner concluded that there was no objective evidence of asthma. The examiner explained that the Veteran's subjective description of symptomatology was convincing, but that it was not substantiated by objective testing, to include pulmonary function tests and radiology. Other contributing factors to the Veteran's dyspnea and cough were indicated to be gastrointestinal reflux triggers, pseudoseizures related to his psychiatric disorder, or post nasal drip and allergic rhinitis. Medications were thought to be an unlikely contributing factor. The Veteran was afforded another VA examination in March 2008, at which time the examiner explained that the Veteran had some abnormal lung function as demonstrated by a somewhat decreased partial pressure of oxygen and oxygen saturations. However, he did not have any pulmonary function tests which demonstrated a true picture of asthma. The examiner indicated that the Veteran was a lifelong smoker and opined that any current lung dysfunction was most likely related to that fact. The examiner noted that pulmonary consults would only go as far as to state that the Veteran had probable asthma based on his subjective reports of improvement with bronchodilator therapy. The examiner concluded that the Veteran did have a chronic respiratory condition, and although it responded to medications used to treat asthma, those medications are used to treat many lung disorders other than asthma. The examiner noted that the Veteran had pneumonia and bronchitis while in service, but that they were not indicated to be chronic conditions, nor was the Veteran treated for or diagnosed as having a chronic respiratory disorder in service. Although the examiner conceded that the Veteran did seem to have a number of respiratory illnesses that was out of the ordinary, the number and severity of such illness did not itself create a likely causal or associated relationship to his current respiratory disorder. Furthermore, there was no indication that his in-service acute respiratory conditions were related to his current respiratory disorder. In its January 2011 remand, the Board observed that the March 2008 VA examination was not adequate because the VA examiner, while noting that the Veteran currently had a chronic respiratory condition, essentially indicated that it was most likely that any lung dysfunction the Veteran had was related to his being a lifelong smoker. The Board noted, however, that the Veteran had consistently maintained that he only smoked for a few months at age 21. The Board further observed in previous examinations that the Veteran's claim has been too narrowly construed both as to the specific respiratory disorder (asthma) and as to the specific cause (asbestos or Agent Orange exposure). In an effort to fairly address the scope of the Veteran's claim, the Board found that an additional examination was necessary to provide an opinion as to whether it was at least as likely as not that the Veteran had any current respiratory disability that was related to service. Pursuant to the Board's remand instructions, the Veteran was afforded his most recent VA examination in February 2011, at which time the examiner opined that it was less likely than not that the Veteran had a current respiratory disorder that was related to service. The examiner acknowledged that the Veteran did have military sick call visits for bronchitis and pneumonia over his 24-year career. However, the number of sick call visits for these reasons was not out of the ordinary and did not indicate that the Veteran had a chronic respiratory illness while on active duty. Furthermore, there was no indication that he had asthma while in the military, nor was there any indication of any chronic respiratory disorder in service other than the above-noted acute illnesses. Chest X-rays and computed tomography (CT) scans over the past 5 years did not show evidence of asbestosis or other environmentally-related respiratory condition. The examiner noted that the Veteran's current oxygen-dependent, clinically-reversible bronchospasm had been treated as though it were asthma with a fair symptomatic result. The examiner noted that since the Veteran was provided with continuous oxygen in August 2010, he no longer suffered from shortness of breath at rest except during anxiety attacks, which he recognized as a separate disorder for which he is separately service-connected. As such, the examiner concluded that the etiology of the Veteran's current respiratory disability was the hypoxemia caused his body habitus in combination with his morbid obesity, resulting in poor lung expansion and measured as low forced vital capacity (FVC). The examiner emphasized that these factors were not present at the time of his retirement from service. Additionally, the examiner explained that it could be argued that the Veteran's service-connected posttraumatic stress disorder (PTSD) caused his respiratory symptoms, but evidence for a proximate relationship or permanent aggravation by these symptoms consisted of only disparate accounts. As such, the examiner concluded that the Veteran's current respiratory disorders were less likely than not caused or aggravated by his service-connected PTSD. In addition, the February 2011 VA examiner diagnosed the Veteran as having obstructive sleep apnea, but opined that it was not due to any events or conditions that were identified of treated during service. The examiner explained that the Veteran's obstructive sleep apnea was due to his morbid obesity and oropharyngeal anatomy, and that it was not identified or treated during service. As noted above, the Veteran contends that his respiratory disorder is the result of exposure to unhealthy air, to include asbestos, while performing engine maintenance on ships during service, or as a result of exposure to Agent Orange in Vietnam. After a thorough review of the evidence of record, the Board concludes that service connection is not warranted for a respiratory disorder. VA regulations provide that if a veteran was exposed to an herbicide agent (Agent Orange) during active service, service connection is presumed for the following disorders: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309. VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for: hepatobiliary cancers; nasal and/or nasopharyngeal cancer; bone and joint cancer; breast cancer; female reproductive cancers; urinary bladder cancer; renal cancer; testicular cancer; leukemia, other than chronic lymphocytic leukemia (CLL); abnormal sperm parameters and infertility; Parkinson's Disease and Parkinsonism; Amyotrophic Lateral Sclerosis (ALS); chronic persistent peripheral neuropathy; lipid and lipoprotein disorders; gastrointestinal and digestive disease including liver toxicity; immune system disorders; circulatory disorders; respiratory disorders (other than certain respiratory cancers); skin cancer; cognitive and neuropsychiatric effects; gastrointestinal tract tumors; brain tumors; AL amyloidosis (also referred to as primary amyloidosis); endometriosis; adverse effects on thyroid homeostasis; and, any other condition for which VA has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630 -27641 (May 20, 2003); see also Notice, 67 Fed. Reg. 42600 (June 24, 2002); Notice, 66 Fed. Reg. 2376 (Jan. 11, 2001); Notice, 64 Fed. Reg. 59232 (November 2, 1999). A "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's service personnel records indicated that he completed a Vietnam tour and was awarded a Combat Action Ribbon; therefore, he is presumed to have been exposed to herbicide agents during his active duty service. However, the Veteran's respiratory disorders, diagnosed as bronchospasm and obstructive sleep apnea, are not among the diseases or disorders eligible for presumptive service connection based on exposure to Agent Orange. 38 C.F.R. § 3.309. Accordingly, service connection for these disorders on a presumptive basis due to exposure to Agent Orange is not warranted. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). The weight of the probative evidence of record does not show that the Veteran's respiratory disorders are directly related to his active duty service. The Board acknowledges that there are competing medical opinions as to whether the Veteran's current disorders are related to his period of active duty service. As discussed above, in a June 2006 treatment note, a VA staff physician opined that the Veteran had asthma which as likely as not started in service following his bout with pneumonia. However, the opinion provided by the VA staff physician is afforded little probative value, as the opinion expressed was merely a conclusive statement unsupported by any accompanying rationale. Moreover, prior and subsequent opinions conclusively ruled out asthma as a diagnosis, and provided the results of objective diagnostic testing and sound medical reasoning in support of this conclusion. Accordingly, the Board affords little probative value to the June 2006 VA staff physician opinion. Additionally, the Board acknowledges that the April 2006 VA examiner opined that it appeared the Veteran's current respiratory problems may have had their onset while he was in the military. Furthermore, this examiner indicated that the nature of his respiratory symptoms were vague and were at best felt to be multifactorial, including secondary to anti-hypertensive medications. However, this opinion is also afforded little probative value, as it is speculative. See Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (treating physician's opinion that veteran's time as a prisoner of war "could" have precipitated the initial development of his lung condition found too speculative). The April 2006 examiner's use of the words "may have" and "vague" lacks the definitive conclusion required for a medical opinion to be considered probative and does not establish it is as likely as not that the Veteran's respiratory disorders had their onset in service or were partially due to anti-hypertensive medications. This is especially true in light of the fact that the Veteran denied a history of hay fever, asthma, shortness of breath, pain or pressure in chest, or chronic cough at the time of his April 1990 Report of Medical History at retirement, and the fact that the March 2007 examiner explicitly opined that medications were an unlikely contributing factor. Accordingly, the Board affords little probative value to the April 2006 examination report. The Board affords the most probative value to the February 2011 VA opinion, which ruled out asthma as a diagnosis based on the results of radiology and pulmonary testing. Rather, the examiner concluded that the correct diagnoses were bronchospasm and obstructive sleep apnea, which were not related to service or to any service-connected disability. Moreover, the examiner opined that the Veteran's bronchospasm was due to his body habitus and morbid obesity, while his sleep apnea was due to morbid obesity and oropharyngeal anatomy. With respect to the Veteran's documented in-service asbestos exposure, the examiner emphasized that chest X-rays and CT scans over the previous 5 years did not reveal any evidence of asbestos or other environmentally-related respiratory conditions which may have been incurred while working on naval ships. The VA examiner's opinions were based on a thorough review of the evidence in the claims file and provided supporting rationale for the opinions. As the February 2011 VA opinion was based on a thorough review of the claims file and provided supporting explanation and rationale for the opinions provided, the Board affords the opinion of the February 2011 VA examiner significantly more weight than the June 2006 VA staff physician opinion and April 2006 VA examination report. Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that factors for assessing the probative value of a medical opinion include access to the claims file and the thoroughness and detail of the opinion); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (finding that the failure of the physician to provide a basis for an opinion goes to the weight or credibility of the evidence). With regard to the lay statements submitted in support of the Veteran's claims, lay evidence can be competent and sufficient when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). The Board acknowledges that the statements are competent evidence of observable symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). In that regard, the Veteran's statements are competent evidence that he suffered from respiratory symptomatology, to include shortness of breath and respiratory spasms. However, as a lay person, the Veteran is not competent to provide opinions as to matters of diagnosis or medical causation. There is no indication in the record that the Veteran is a physician or other health care professional. Therefore, as a lay persons, he is not competent to provide evidence that requires medical knowledge because he lacks the requisite professional medical training, certification and expertise to present opinions regarding diagnosis and etiology. Thus, the statements regarding the diagnosis and etiology of the Veteran's respiratory disorder do not constitute competent medical evidence on which the Board can make a determination as such disabilities are of such a complex nature that they do not lend themselves to lay diagnosis. See also Barr, 21 Vet. App. at 307 (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). In reaching this decision the Board considered the doctrine of reasonable doubt. There are current diagnoses of bronchospasm and obstructive sleep apnea. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). Nevertheless, although the Veteran's service treatment records revealed sporadic treatment for bronchitis and pneumonia which were acute and transitory in nature, there was no evidence of a chronic respiratory disorder in service. Moreover, the weight of the probative evidence of record does not link the Veteran's current disorders to service, to include his in-service exposure to Agent Orange and asbestos. Accordingly, as the preponderance of the evidence is against the Veteran's claim, the doctrine of resolving doubt in the Veteran's favor is not for application, and service connection for a respiratory disorder is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for a respiratory disorder is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs