Citation Nr: 1315067 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-20 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a sinus disorder, claimed as sinusitis and/or allergic rhinitis, to include as a result of asbestos exposure or exposure to aircraft exhaust fumes. 2. Entitlement to service connection for chronic obstructive pulmonary disease ("COPD") and/or emphysema, to include as a result of asbestos exposure or exposure to aircraft exhaust fumes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from November 1947 to October 1952, and from August 1954 to January 1960. These matters come before the Board of Veterans' Appeals ("Board") on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Louis, Missouri, which denied the Veteran's claims of entitlement to service connection. The Board has previously considered these claims. In September 2010, the Board remanded the claims to the RO for additional development, specifically to afford the Veteran a VA compensation and pension examination. Thereafter, VA received additional service treatment records for the Veteran's second period of service. In June 2012, the Board once again remanded the claims in to allow the clinician who performed the VA examination an opportunity to review the newly-received service treatment records and provide an amended opinion. This took place in July 2012 and January 2013, and in a March 2013 Supplemental Statement of the Case ("SSOC"), the RO continued its previous denial of the claims. The claims folder has now been returned to the Board for further appellate proceedings. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. 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). FINDINGS OF FACT 1. The most probative evidence of record demonstrates that the Veteran's sinus disorder, claimed as sinusitis and allergic rhinitis, is not etiologically-related to any aspect of service, to include asbestos exposure or exposure to aircraft exhaust fumes. 2. The most probative evidence of record demonstrates that the Veteran's COPD is not etiologically-related to any aspect of service, to include asbestos exposure or exposure to aircraft exhaust fumes. CONCLUSIONS OF LAW 1. The Veteran's sinus disorder, claimed as sinusitis and/or allergic rhinitis, was neither incurred in, nor aggravated by active duty service, to include as a result of asbestos exposure or exposure to aircraft exhaust fumes. 38 U.S.C.A. §§ 1101, 1131, 1133, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The Veteran's COPD was neither incurred in, nor aggravated by active duty service, to include as a result of asbestos exposure or exposure to aircraft exhaust fumes. 38 U.S.C.A. §§ 1101, 1131, 1133, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim, was eliminated by the VA Secretary. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, VA satisfied the notification requirements of the VCAA by means of a letter dated September 2007. The RO informed the appellant of the types of evidence needed in order to substantiate his service connection claims, and the division of responsibility between the appellant and VA for obtaining the required evidence. Additionally, the letter advised the Veteran that he should provide specific information about the nature of the claimed disability resulting from asbestos exposure, including evidence that asbestosis existed from military service to the present. This letter also satisfied the requirements of Dingess/Hartman, supra, and informed the appellant of how VA assigns the disability rating and effective date elements of a claim. B.) Duty to Assist The Board is satisfied that the duty to assist has been satisfied. The claims folder contains the Veteran's service and post-service treatment records, as well as VA examinations dated October 2010, July 2012 and January 2013. The claims folder also contains the Veteran's statements in support of his claims. The Veteran has not referenced any outstanding records that he wanted VA to obtain or that he felt were relevant to his claims that have not already been associated with the claims folder. Although the Board observes that in July 2012, VA sent the Veteran an authorization form and requested that he complete the form so that VA could obtain private records for treatment of his respiratory disorders on his behalf, the form was never received. Review of the examination reports reveals that the examiners reviewed the Veteran's pertinent service and post-service treatment records, performed the necessary examinations, including a review of diagnostic test results, elicited from the Veteran his history of symptomatology associated with the claimed disorders, as well as his smoking history, and provided clinical findings detailing the results of the examinations. In addition, although the Board recognizes that the examiners who performed the October 2010 and July 2012 examination did not review the service treatment records associated with the Veteran's second period of active duty service, the examiner who performed the October 2010 examination re-reviewed the claims file in July 2012 and January 2013, including the records associated with both periods of the Veteran's active duty service. For these reasons, the Board concludes that the examination reports, taken as a whole, are adequate upon which to make decisions on these claims. Accordingly, the Board finds that VA has fully complied with the notice and assistance requirements of the VCAA and its regulations. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claims. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition 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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added]. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Diseases of allergic etiology may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress or as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380 (2012). Service connection is generally precluded for disabilities caused by using tobacco. See also 38 U.S.C.A. § 1103 and 38 C.F.R. § 3.300(a) (2012) (generally prohibiting service connection for death or disability due to an injury or disease attributable to the use of tobacco products by a veteran during active service); cf. VAOPGCPREC 6-2003 (October 28, 2003) (service connection is not precluded secondary to tobacco use after the veteran's service where a tobacco use disorder is proximately due to a service-connected disability). 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 of these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). These guidelines note that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate). See M21-1, Part VI, 7.21(a), p. 7-IV- 3 (January 31, 1997); see also Ennis v. Brown, supra. It is noted that persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolarygneal, gastrointestinal, and urogenital cancers, and that the risk of developing bronchial cancer is increased in current cigarette smokers who had asbestos exposure. Id. It is also noted that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of the disease, and that an asbestos-related disease can develop from brief exposure to asbestos. M21-1, Part VI, 7.21(b), p. 7- IV-3. The Board notes that under the provisions of the M21-1, Part VI, occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. More recently, the Court has held that "neither Manual M21-1, nor the Circular creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure to asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure." Dyment v. West, 13 Vet. App. 141 (1999); see also, Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4-2000. The Veteran contends that his sinus disorder and COPD are chronic conditions, resulting from asbestos exposure and/or exposure to aircraft exhaust fumes during active duty service. Specifically, he claims that, while serving aboard the USS Leyte, asbestos fell from the pipes over his bed during takeoff and landing of aircraft. He further contends that he was exposed to exhaust fumes from aircraft while working on the flight deck of the carrier. As noted above, the Veteran served two periods of active duty service: Navy service from November 1947 to October 1952, and Air Force service from August 1954 to January 1960. Review of his Navy service treatment records reveal no evidence of complaints of, treatment for, or a diagnosis of an upper or lower respiratory disorder. His October 1952 Navy separation examination report revealed normal findings in all systems, including the nose, sinuses, lungs and chest, and a chest x-ray was negative. During the Veteran's August 1954 Air Force enlistment examination, his chest and lungs were deemed within normal limits. A chest x-ray revealed a blunting of the right cardiophrenic angle, noted by the examiner as having the appearance of being "quite probably a long-standing pleural change[.]" The examiner went on to say that if there was clinical evidence of recent inflammatory process, repeat posterior-anterior and right lateral x-rays would be required. Subsequent studies were not completed. A December 1958 treatment record shows treatment for wheezing and a cough. The Veteran's November 1959 separation examination revealed findings within normal limits for the nose, sinuses, lungs and chest; the concurrent chest x-ray was negative. Although the examiner noted that the Veteran had complained of a shortness of breath since 1957, he attributed this to the Veteran's smoking. Moreover, while his service personnel records show that the Veteran indeed served aboard the USS Leyton, with a primary job title of aviation mechanic, as noted above, the Court held there is no presumption of exposure to asbestos solely from shipboard service. See Dyment v. West, supra. Post-service treatment records show that in March 2004, the Veteran was seen at St. John's Clinic for complaints of congestion and sore throat for four days. At that time, it was noted that the Veteran was taking the medication albuterol as needed, as well as an over-the-counter cold and sinus medicine. The diagnoses were rhinitis and mild bronchitis. In April 2004, the Veteran was diagnosed with COPD. There is no indication in the private treatment records, however, that any of his treating physicians linked his respiratory disorders to military service. VA treatment reports dated March 2008 indicate that a problem list showed that the Veteran was diagnosed with chronic rhinitis and bronchial asthma. Under "new problems" were COPD with increased problems and sinusitis. In October 2010, the Veteran was afforded a VA examination, at which time, he said that his respiratory problems had been chronic ever since his Navy service. He also noted that he had worked in commercial aircraft hangers and at sea in commercial vessels, but denied any post-service environmental hazards. He also stated that he had been a 1.5 pack-per-day smoker for 30 years, but had quit in 1995. The examiner diagnosed the Veteran with COPD and allergic rhinitis and opined that it was less likely than not that either condition was related to military service, to include intraservice asbestos exposure and aircraft emissions. With regard to COPD, the examiner noted that the Veteran's navy service treatment records were negative for treatment of any respiratory disorder or upper airway condition. He further observed that there was no typical asbestosis patterning on the Veteran's chest x-ray, adding that asbestosis relates more to restrictive airway process, while the Veteran's pattern showed air trapping suggestive of an obstructive process, such as COPD or emphysema. He added that the Veteran's lengthy history of tobacco use, as well as other unknown post-service environmental exposures, could have contributed to the disease. Regarding the diagnosis of allergic rhinitis, the examiner again noted there was no evidence of treatment of any respiratory disorder or upper airway condition in the Veteran's Navy service treatment records, adding that the October 1952 separation examination did not indicate any acute or chronic disease process, as the Veteran's chest x-ray had been negative. He also noted that there had been a significant length of time between service and the Veteran's diagnosis of upper airway conditions/rhinitis, again stating that post-service environmental exposure contributions were unknown. In June 2011, the Veteran was seen at the VA Medical Center ("VAMC") for a follow-up for COPD. At that time, it was noted that his active problems included asthma, COPD and allergic rhinitis. In July 2012, VAMC treatment reports show that the Veteran was seen with complaints of chronic breathing problems and requested to be placed on oxygen. Tests results, however, demonstrated that he did not meet the criteria to be placed on oxygen. In July 2012, the Veteran was afforded a second VA examination. The examiner diagnosed him as having asthma, but noted that he had not experienced any attacks in the previous 12 months. He also reviewed the results of a CT scan and pulmonary function testing. He diagnosed the Veteran with COPD and opined that the condition was less likely than not the result of intraservice asbestos exposure or aircraft emissions. Like the previous VA examiner, the July 2012 examiner noted that there was no typical asbestosis patterning on the Veteran's chest x-ray, adding that asbestosis relates more to restrictive airway process, while the Veteran's pattern showed air trapping suggestive of an obstructive process, such as COPD or emphysema. The examiner also observed that the Veteran's Navy service treatment records did not indicate treatment of a respiratory or upper airway disorder. In January 2013, the Veteran's claims folder was reviewed a second time by the VA examiner who had conducted the October 2010 examination. The examiner noted that he had reviewed the complete claims folder, including the Veteran's service treatment records for both periods of active duty service to include the August 1954 X-ray findings. He opined that there was no evidence in the service treatment records to support a finding of a nasal/sinus and/or respiratory illness that would not be considered to be an acute event. In this respect, he found that the Veteran had no chronic, ongoing illnesses. He also said there was no evidence to support his claim that his work exposures to fumes, fuels, chemicals or environmental factors caused any of the claimed illnesses. He further noted that the Veteran's Air Force service separation examination indicated that he was thought to have shortness of breath due to smoking, adding that he also had a post-service history of smoking, and more recent diagnostic studies indicate emphysema to be a known result of tobacco use. The examiner also specifically considered the August 1954 chest X-ray findings, discussed above, apparently concluding that such were incidental and not significant for nasal, sinus or upper/lower respiratory conditions. In addition, he noted that the Veteran's Air Force service treatment records only showed evidence that he had been diagnosed twice with a cold and once with hayfever, noting that although the Veteran claimed during service that he was asthmatic, he could find no objective documentation that the Veteran ever had a medical diagnosis of asthma during service, and there were no follow-up evaluations or treatment to show chronicity or to support a finding of asthma or hayfever. Accordingly, he opined that the treatment record in which the Veteran stated he had asthma should stand as a diagnosis of the common cold. The examiner also observed that the Veteran's Air Force separation examination made no mention of allergies, hayfever, nasal, sinus or upper/lower respiratory conditions, also noting that the separation chest x-ray was negative. Finally, he added that the examiner who performed the Veteran' s November 1959 separation examination identified the Veteran's shortness of breath from 1957 to 1959 as being caused by smoking, with no complications or sequelae. Based on a review of the complete evidence of record , the Board concludes that the probative evidence weighs against the Veteran's claims of entitlement to service connection for both a sinus disorder and COPD, to include as a result of asbestos exposure and aircraft emissions exposure in service. As noted above, the Veteran's service records demonstrate that he worked on the USS Leyte as an aircraft mechanic, and thus, there is a possibility that he could have been exposed to asbestos during service. In this instance, however, two VA examiners reviewed the Veteran's service treatment and personnel records, taking a multitude of factors into consideration in arriving at the conclusion that the Veteran's respiratory disorders were not the result of any incident of service, to include asbestos exposure or aircraft emissions. Significantly, the examiners noted that the Veteran's recent chest x-rays showed no typical asbestosis patterning, adding that asbestosis relates more to restrictive airway process, while the Veteran's x-ray pattern showed air trapping suggestive of an obstructive process, such as COPD or emphysema. The examiners provided thorough, well-reasoned opinions based on medical literature that fully explained the reasons and bases for their conclusions. Although both examiners considered the Veteran's personal statements concerning his reports of having been exposed to asbestos during service, they nonetheless concluded that neither of his disorders were related to service. The Board finds the opinion of the VA examiners, supported with reasons and bases, to be the most persuasive evidence of record as to the relationship between the Veteran's upper and lower respiratory disorders and active duty service. In addition to the medical and military evidence of record, the Board has also considered the Veteran's personal contention that his sinus disorder and COPD both stem from asbestos and aircraft emission exposure in service. In this regard, the Board notes that the Court has repeatedly held that individual claimants are considered competent to testify to matters that "lend[] [themselves] to observation by a lay witness." See Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, in this instance, the Veteran has not been shown to have the appropriate medical knowledge or training to render him competent to provide an opinion on such a complex issue, such as associating exposure to jet emissions many decades earlier with current respiratory disorders. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, his assertions do not constitute competent medical evidence that the either of the claimed disorders was caused by, or is otherwise related to his military service. Finally, as noted above, per VA regulations, service connection is not warranted for a disability on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service (with the exception of Buerger's Disease). 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300(a) (2012). This provision applies to claims filed after June 9, 1998. Id. Here, not only did the examiner who performed the Veteran's November 1959 service separation examination attribute his complaints of shortness of breath during service to smoking, but the 2010 VA examiner also took note of the Veteran's 30-year, 1.5 pack-per-day history of smoking, adding that this lengthy history of tobacco use could have contributed to his disease. Assuming that the Veteran's COPD is related in part to cigarette smoking during and after active service, as he filed his claim in the instant case after June 9, 1998, service connection on the basis of use of tobacco products is barred as a matter of law. Id. Accordingly, the Board concludes that the most probative evidence of record does not support a grant of service connection for a sinus disorder or COPD, to include as a result of asbestos or aircraft emissions exposure in service. The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not applicable, as there is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a sinus disorder, claimed as sinusitis and allergic rhinitis, is denied. Entitlement to service connection for COPD is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs