Citation Nr: 1314871 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 11-16 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for asbestosis, to include as secondary to asbestos exposure in service. 2. Entitlement to service connection for lung cancer, to include as secondary to asbestos exposure in service. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to asbestos exposure in service. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION 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). The Veteran served on active duty from October 1956 to September 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, which denied the benefits sought on appeal. The Veteran's Virtual VA file has also been reviewed as part of his appeal. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, asbestosis and rounded atelectasis are etiologically related to his in-service exposure to asbestos. 2. Squamous cell carcinoma is not etiologically related to service or in-service exposure to asbestos. 3. COPD is not etiologically related to service or in-service exposure to asbestos. CONCLUSIONS OF LAW 1. Asbestosis was incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Squamous cell carcinoma was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. COPD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 A. Full Grant of Benefits With respect to the Veteran's claim for service connection for asbestosis, the Board is granting in full the benefit sought on appeal. Accordingly, assuming that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and will not be further discussed. B. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to the initial adjudication of the Veteran's claims, a letter dated in July 2010 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claims; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was also notified of the criteria for establishing an effective date and disability rating. See Dingess. Therefore, he received complete notice regarding his claims for service connection. B. Duty to Assist The Veteran's service treatment records, private treatment records, and lay statements have been associated with the claims file. The Veteran was also afforded a VA examination as part of his claim, and an additional VA opinion was also obtained. 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 VA examination and opinion obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's COPD and lung cancer. The Board notes that the VA examiner who conducted the Veteran's November 2010 VA examination included a statement that he was unable to comment on the etiology of the Veteran's COPD and lung cancer without resort to speculation. The U.S. Court of Appeals for Veterans Claims (Court) recently held that, in general, it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id at 390. As discussed below, while the November 2010 examiner in this case included a statement regarding speculation, he also stated in the same report that the claimed conditions were less likely than not related to service, and included a rationale for that conclusion. In addition, a subsequent opinion also definitively addressed the etiology of the Veteran's lung cancer. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Service Connection A. Applicable Law In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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) (2012). In addition, certain chronic diseases, including malignant tumors, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Board notes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1MR, part IV, subpart ii, chapter 2, section C, paragraph 9 (Jan. 7, 2007) ("VA Manual"). Also, an opinion by VA's Office of General Counsel (OGC) discussed the proper way of developing asbestos claims. See VAOPGCPREC 4-2000 (Apr. 13, 2000). The VA 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). The VA Manual also lists 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 lead to a non-exclusive list of asbestos-related diseases/abnormalities: 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 guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. VA Manual, paragraph 9(d). The extent and duration of exposure to asbestos is not a factor for consideration. Id. at Subsection (d). Thus, an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines further provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease. VA Manual, paragraph 9(e). Rating specialists must develop any evidence of asbestos exposure before, during, and after service. A determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether 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). 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). B. Evidence The Veteran underwent an enlistment examination in October 1956. No relevant abnormalities were noted. In March 1958, the Veteran was treated for influenza. A May 1958 chest x-ray noted increased hilar markings with no current disability. A June 1959 chest x-ray was normal. A September 1960 separation examination, which included a chest x-ray, was also normal. The Veteran's personnel records reflect that he served aboard the USS Valley Forge from November 1957 through May 1960, and the Veteran contends that he was exposed to asbestos during this period. In the December 2010 rating decision on appeal, the RO conceded the Veteran's exposure to asbestos in service. Such asbestos exposure is consistent with the Veteran's military service aboard naval vessels during the 1950's. See 38 U.S.C.A. § 1154(a). It was also noted that the Veteran's military occupational specialty of hospital corpsman was consistent with a minimal amount of exposure. In additional statements made to the VA examiner and submitted directly to VA, the Veteran indicated that he worked as an insurance adjuster after service and denied any post-service asbestos exposure. Therefore, the remaining inquiry is whether the Veteran has a current pulmonary disability that is related to his in-service asbestos exposure. Private treatment records dated March 1999 stated that a CT scan, x-ray, and pulmonary function test revealed a lung mass and scarring in the right lobe. There was no evidence of pleural plaques or additional scarring. This indicated a lack of evidence for asbestosis. A 40 to 50 pack year history of smoking was noted. Additional records dated June 1999 reflect diagnoses of COPD and right middle lobe syndrome with chronic bronchitis. An April 2004 private chest x-ray revealed right apical pleural thickening. The left lung was free of infiltrates, effusions, and pleural disease. An August 2004 CT scan revealed pleural thickening and a stable 4 cm. mass in the right lobe. Records dated April 2005 state that the Veteran's lung mass was determined to be a rounded atelectasis from asbestosis, which resulted in lung restriction and dyspnea. He also had COPD and continued to smoke at least half a pack a day. The Veteran underwent a pulmonary function test in November 2006. He was noted to have a history of asbestos exposure and smoking 6 to 8 cigarettes a day. The results of the study were consistent with moderate airflow obstruction with reversibility due to emphysema. Records dated April 2010 reflect a diagnosis of chronic right-sided asbestosis, as well as a new left upper lobe nodule very suspicious for malignancy. He underwent a lobectomy in May 2010 which revealed the nodule to be a squamous cell carcinoma. Additional records from May 2010 reflect diagnoses of emphysema, COPD, chronic bronchitis, and pulmonary asbestosis. The Veteran underwent a VA examination in November 2010. The claims file was reviewed by the examiner, who noted a history of asbestos exposure in service. The Veteran also denied any post-service history of asbestos exposure. Based on a review of the claims file, a history provided by the Veteran, and a physical examination, the examiner diagnosed chronic right chest asbestosis, left upper lobectomy for lung cancer, and a stable right chronic pulmonary mass. He stated that it was less likely than not that the Veteran's COPD and lung cancer were the result of asbestos exposure. He based this opinion on findings that the Veteran had right-sided asbestosis. Lung cancer was noted to be on the left side. The Veteran had a history of chronic cigarette smoking which was still the primary risk factor for COPD and lung cancer. He also had very little direct asbestos exposure in service. In the Veteran's January 2011 notice of disagreement, the Veteran's representative asserted that asbestos was a known carcinogen, and therefore it was likely that his current lung cancer was attributable to his asbestos exposure in service. The VA examiner provided a supplemental opinion in February 2012. He stated that several of the diagnostic components that would make a diagnosis of asbestosis were absent. Specifically, the Veteran did not have extensive work exposure to asbestos; his CT scan showed only pleural thickening (a nonspecific finding), and not plaques or fibrosis; pleural thickening was one-sided, which was unusual for asbestos findings in the lungs; his FEV1 ratio was reduced, which was more likely due to cigarettes than asbestos; and the squamous cell carcinoma that the Veteran was diagnosed with was not one of the three primary cancers associated with asbestos. These statements were supported by medical literature attached to the examiner's opinion. C. Analysis Based on the foregoing, the Board resolves reasonable doubt in favor of the Veteran and finds that he has asbestosis related to his in-service asbestos exposure. In this regard, the Board is cognizant that there appears to be conflicting evidence regarding whether the Veteran, in fact, has a current asbestosis disability. Whereas private treatment records reflect diagnoses of pulmonary asbestosis and a rounded atelectasis from asbestosis, the VA examiner's most recent opinion stated that asbestosis was not present due to the absence of several diagnostic components. However, the overall probative value of the evidence both for and against a diagnosis of asbestosis is in relative equipoise, and therefore the Board will resolve any doubt in the Veteran's favor and determine that a current asbestosis disability exists. Moreover, because the record indicates that the Veteran was exposed to asbestos only during his period of active service, the Board finds that current asbestosis was incurred in service. Therefore, service connection for asbestosis is warranted. However, the competent medical evidence, including the VA examiner's November 2010 and February 2012 opinions, and the Veteran's private records, indicates that the Veteran's diagnoses of COPD and lung cancer are attributable to his smoking history. The evidence also reflects that the Veteran smoked a pack a day for 40 to 50 years, which suggests that he may have started smoking during his period of service. However, for claims filed after June 9, 1998, such as the Veteran's claim, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to the claimant's use of tobacco products during service. 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. Thus, application of 38 U.S.C.A. § 1103, as implemented by 38 C.F.R. § 3.300, bars service connection for a respiratory disability resulting from such use. There is no competent medical opinion that otherwise attributes these conditions to service for reasons other than tobacco use. While the Board has considered statements from the Veteran and his representative that lung cancer was caused by asbestos exposure in service, they have not demonstrated the necessary knowledge or expertise to render competent opinions regarding the etiology of complex conditions such as squamous cell carcinoma. Therefore, service connection for COPD and lung cancer is denied. ORDER Service connection for asbestosis is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for squamous cell carcinoma is denied. Service connection for COPD is denied. REMAND Additional development is necessary prior to adjudicating the Veteran's claim for a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities of both upper extremities will be considered as one disability. 38 C.F.R. § 4.16(a). As discussed above, service connection for asbestosis has been granted. This is the Veteran's only service-connected disability. Because the RO must assign a rating for this disability in the first instance, it would be premature for the Board to adjudicate the issue of TDIU at this juncture. Therefore, the claim must be remanded for the assignment of a disability rating and effective date for the Veteran's service-connected asbestosis disability. The RO/AMC should then readjudicate the claim for a TDIU. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) After assigning a disability rating and effective date for the Veteran's service-connected asbestosis, the RO/AMC should readjudicate the merits of the Veteran's claim for a TDIU based on all the evidence of record, including any additional information obtained and any further development that may be warranted. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs