Citation Nr: 1316018 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 10-14 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and J.L. ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from December 1961 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran and a friend testified before the undersigned Veterans Law Judge at the RO in October 2012. A transcript of the hearing has been associated with the record. The Board notes that a Virtual VA e-file exists for this Veteran, and that this file was reviewed in the adjudication of the Veteran's appeal. FINDING OF FACT The Veteran does not have asbestosis. CONCLUSION OF LAW Asbestosis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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). 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in December 2008, prior to the adjudication of the Veteran's claim, discussed the evidence necessary to establish service connection. The Veteran was asked to provide specific information regarding his exposure to asbestos, and also requested to provide pre-service and post-service work histories. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. He was also advised of the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Therefore, the record reflects that he was provided with a meaningful opportunity during the pendency of his appeal such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. With respect to VA's duty to assist, service treatment records, VA treatment records, and private treatment records have been obtained and associated with the record. Records from the Social Security Administration (SSA) have also been obtained. VA examinations have been conducted. The Board thereafter determined that an expert opinion was necessary, and obtained such opinion in February 2013. The report of the expert is adequate in that it is based on a full review of the record, to include medical evidence supportive of the Veteran's claim. The Veteran also was afforded a hearing before the undersigned during which he presented oral argument in support of his claim. 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 VLJ or Decision Review Officer who chairs 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, the VLJ fully explained the issues on appeal during the hearing and asked questions specifically regarding the elements necessary to establish the benefits sought. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the evidence necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the evidence necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Factual Background Service treatment records are negative for any diagnosis, complaint, or abnormal finding pertaining to the Veteran's respiratory health. A chest X-ray in August 1964 was negative. On separation examination in March 1966 the Veteran's chest and lungs were normal, and the Veteran was deemed to be physically qualified for release to inactive duty. Service personnel records reflect that the Veteran served as an aircraft engine mechanic, and that at the time of separation, he was assigned to the USS Oriskany (CVA-34). His separation report shows one year, 11 months, and 14 days of sea service. Private medical records associated with the claims file include the report of a chest X-ray in April 2004. At that time, the lungs were well expanded with no infiltrates, masses, or effusions. There were scattered foci of old granulomatous disease present. The impression included no acute chest disease. The report of an August 2005 X-ray indicates more air-trapping than seen in the previous examination. No pulmonary consolidations, masses, effusions, or pneumorthoraces were seen. The impression was chronic obstructive pulmonary disease (COPD) and no acute chest disease. In August 2007 the Veteran was examined by J.T.S., M.D. Dr. S. indicated that the Veteran was evaluated for occupational lung disease, and that his history was obtained through a personal interview. The Veteran reported that he retired as a boilermaker, and that he had heavy direct, ambient, and bystander exposure to boiler and pipe insulation for a period of more than 30 years, from 1970 to 2000. He indicated that he removed asbestos from pipe and pipe flashing on a daily basis during the 1970s and 1980s. He stated that he spent six years in the Navy from 1961 to 1966, and that he probably had exposure to asbestos from changing brakes on planes. Dr. S. noted that it was unclear whether the Veteran was exposed to marine insulation while aboard ships. The Veteran indicated that following service, he worked from 1966 to 1970 as an engine mechanic on helicopters, and that he was uncertain whether he had any toxic exposure during that time. He stated that for the period from 1970 to 2000, he worked as a union boilermaker in oil refineries, chemical plants, and power houses. He related that he removed asbestos from pipes on a daily basis and welded boiler tubes, using asbestos blankets to wrap the tubes and maintain heat. He noted that he worked around insulators and had heavy bystander exposure to dust from their work. He indicated that he also did welding and grinding in a daily basis. He related that he did not begin to use a dust mask until the 1980s. Dr. S. noted that the Veteran had smoked between one and one and one half packages of cigarettes daily for 50 years. The Veteran denied any history of pneumonia, tuberculosis, sarcoidosis, chest trauma, or primary lung disease. On physical examination, the Veteran was in no respiratory distress. His chest was symmetric on expansion, and there were no obvious chest wall deformities. Auscultation revealed dry inspiratory crackles that did not clear with cough or deep breathing. X-rays revealed a diffuse interstitial pattern, consisting of small, irregular, linear opacities. Pleural thickening was noted. No parenchymal infiltrates, nodules, or masses were present. The diagnoses included pulmonary asbestosis, based on the pleural and parenchymal X-ray changes and the environmental exposure history. Mild chronic obstructive pulmonary disease (COPD) was also diagnosed. Dr. S. noted that that condition accounted for most of the pulmonary function abnormalities, and immediate smoking cessation was strongly encouraged. In November 2008 the Veteran stated that he had been exposed to asbestos while aboard the USS Oriskany and in his duties working on brakes. A VA fee basis examination was conducted in February 2009. The Veteran reported that he had been recently diagnosed with asbestosis. He noted that he worked as an engine mechanic in service, and that the ships on which he served had asbestos insulation. He stated that during service, he was not given respiratory protective equipment. Pulmonary function tests were abnormal, revealing moderately severe restrictive disease. A chest X-ray was normal. There were no parenchymal abnormalities consistent with pneumoconiosis. The examiner noted that B reader results indicated possible evidence of asbestos related plaques versus chest wall fat. He suggested a CT scan to rule out plaques. The diagnosis was chronic restrictive lung disease with asbestos exposure. An additional VA fee basis examination was carried out in May 2009. The Veteran endorsed purulent sputum and shortness of breath after walking three city blocks. Physical examination revealed symmetric breath sounds, with no rhonchi or rales. The expiratory phase was within normal limits. A chest X-ray was within normal limits. The diagnosis was asbestosis and COPD. The examiner indicated that the history of occupational asbestos exposure, restrictive lung disease pattern on pulmonary function tests, and X-ray report showing possible pleural plaques consistent with asbestos made it more likely than not that asbestos related disease was present. He noted that the B reader radiologist indicated that CT scan of the lung would help to confirm the diagnosis. The examiner opined that it was more likely that asbestos exposure occurred when the Veteran was a boilermaker than during service. He indicated that if asbestosis was confirmed by CT, it was more likely than not that he source of asbestos exposure was from the higher risk occupation of boilermaker. A CT scan was carried out in June 2009. Multiple calcified lymph nodes were seen in both hilar regions. Calcified granulomas were noted in the spleen. There were no obvious calcified pleural plaques. Emphysematous changes were seen in the lungs. There were calcified granulomas near the right major fissure, but no other pulmonary nodules were identified. The radiologist concluded that there was no significant evidence of asbestosis or asbestos exposure. He noted that there was evidence of old fungal or tuberculous infection represented by calcified lymph nodes and granulomas. In June 2009 the May 2009 VA examiner indicated that CT scan revealed old granulomatous disease and emphysema but no evidence of asbestos related disease. He stated that the diagnosis was COPD. In February 2013, a VA pulmonologist reviewed the record and offered an opinion regarding the Veteran's claimed respiratory disability. He reviewed the Veteran's history, noting his activities during service and his post-service employment. He accepted that the Veteran was exposed to asbestos both during service and in his post-service employment, the greater duration of exposure being during his work as a boilermaker. He noted that the Veteran was evaluated by Dr. S. in August 2007, and that pulmonary function tests at that time were consistent with mild obstructive impairment, or COPD. He also noted that a chest X-ray at that time revealed possible interstitial pattern or infiltrates, and a diagnosis of asbestos was rendered based on the history of clinical symptoms, occupational history, and X-ray interpretation. He pointed out that no CT was done to confirm the findings of the chest X-ray. The pulmonologist also reviewed the reports of the fee basis examinations. He noted that in May 2009, pulmonary function tests showed a restrictive pattern, and that there was a February 2009 X-ray that was reported as normal. He noted that the report of a CT conducted in June 2009 did not find any pleural plaques that would be consistent with asbestos related disease, and that there was no reported finding of pulmonary fibrosis that would be the hallmark of asbestosis. He indicated that there were multiple calcified granulomas in the lung as well as in the spleen, and calcified hilar lymph nodes. He indicated that the conclusion reported on the chest CT was "no significant evidence of asbestosis or asbestos exposure, evidence of old fungal or TB infection, represented by calcified lymph nodes and calcified granulomas" and emphysema. The pulmonologist provided a review of the disease spectrum for asbestosis, indicating that asbestos related non-malignant disease referred to 1) asbestosis, 2) pleural thickening or fibrosis/scarring leading to plaques which might later undergo calcium deposition and 3) non-malignant "benign" pleural effusion (fluid accumulation between the lungs and chest wall). He noted that asbestos could also cause lung cancer. He indicated that the clinical entity or diagnoses of "asbestosis" referred to lung fibrosis caused by the deposition of asbestos fibers in the lung and damage to the lung caused thereafter with or without the presence of pleural plaques/thickening. He stated that therefore, the hallmark of the diagnosis was lung fibrosis/scarring visualized in imaging studies such as chest X-ray or CT scan. He pointed out that asbestosis was usually associated with prolonged exposure, usually a period of 20 years or longer. He noted that the duration and intensity of exposure to asbestos influenced the prevalence of radiographically evident lung fibrosis in chest X-ray and CT scans, and that not everyone who was exposed would develop asbestosis. He related that CT scan was more sensitive and superior to chest X-ray in diagnosing asbestosis by identifying the characteristic features of asbestosis, and it also allowed for other disease processes which might cause a similar picture on X-ray to be excluded. In summary, the VA pulmonologist indicated that he found significant inconsistency between the imaging studies done during the Veteran's medical evaluations in 2007 and 2009. He noted that while the diagnosis of "asbestosis" was rendered by Dr. S., based partly on chest X-ray interpretation at that time, the characteristic findings expected of the diagnosis "asbestosis" were not substantiated on the CT scan done in 2009, as would be expected with such a diagnosis. He also noted that confounding findings were present in the CT scan done in 2009 - multiple calcified granulomas in the lung, indicative of other previous healed disease process - which might have been the reason for the said appearance of the chest X-ray done in 2007. He further pointed out that no confirmatory CT scan of the chest was done in 2007 to confirm the findings of the chest X-ray and to establish the diagnosis of "asbestosis". He acknowledged that the Veteran had exposure to asbestos related products historically both in service and in civilian life, with the preponderance of likely exposure in his civilian trade. However, he stated that because of significant discrepancy in the imaging studies, no definite conclusions could be made as to the presence of the clinicopathological disease entity of "asbestosis". He therefore indicated that he was unable to render an opinion as to the presence of a service relation of asbestos exposure leading to asbestosis, as no definite conclusive evidence could be found based on the review of the records provided for the validity of the diagnoses "asbestosis". Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As regards the claim for service connection based upon asbestos exposure, VA has established certain procedures on asbestos-related diseases which provide guidelines for use in the consideration of compensation claims based on exposure to asbestos. See Adjudication Procedure Manual, M-21-1, MR, Part IV, Subpart ii, Chapter 2, Section C, Para. No. 9 (Dec. 13, 2005); see also McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The aforementioned manual provisions note that the inhalation of asbestos fibers can produce fibrosis and tumors, with interstitial pulmonary fibrosis, i.e., asbestosis, being the most common disease. A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea, end-respiratory rales over the lower lobe, compensatory emphysema; clubbing of the fingers at late stages; and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, lung cancer, and cancer of the gastrointestinal tract. When considering VA compensation claims, rating boards have the responsibility to ascertain whether or not military records demonstrate evidence of asbestos exposure in service, and to ensure that development is accomplished to ascertain whether or not there is preservice or postservice occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases. The Court has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Adequate reasons and bases, in short, must be presented if the Board adopts one medical opinion over another. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. 444, 448-9 (2000). In some cases, the physician's special qualifications or expertise in the relevant medical specialty or lack thereof may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. Here, the Board finds most persuasive the opinion of the VA pulmonologist, who carefully reviewed the record and weighed the medical evidence before ultimately concluding that a diagnosis of asbestosis was not warranted. In this regard, the Board notes that he addressed the August 2007 report of Dr. S., noting that the diagnosis of asbestosis provided by Dr. S. was not supported by CT. He further noted that CT is more sensitive and superior to chest X-ray in diagnosing asbestosis because it identified the characteristic features of asbestosis and allowed for other disease process to be excluded. The VA pulmonologist pointed out that there was significant inconsistency between the imaging studies done during the medical evaluations in 2007 and 2009. He noted that while Dr. S. rendered a diagnosis of asbestosis, the characteristic findings expected in such a diagnosis were not substantiated on the 2009 CT scan. He indicated that the 2009 CT scan showed multiple calcified granulomas, indicative of other previous healed disease process, and might have been the reason for the appearance of the 2007 X-ray. He was unable to confirm a diagnosis of asbestosis. This is in agreement with the conclusion of the 2009 VA examiner, who reviewed the June 2009 CT scan report and in an addendum to his examination report indicated that there was no evidence of asbestosis on CT. In sum, the most comprehensive and probative medical evidence does not support a diagnosis of asbestosis. The Board has considered the Veteran's statements concerning the diagnosis of his claimed disability. The Veteran is certainly competent to report the onset of symptoms and the circumstances surrounding such. However, the Board finds that the Veteran is not competent to offer an opinion on a complex medical matter, to include opining as to the diagnosis attributed to his respiratory complaints. 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). The Board finds that the diagnosis of asbestosis is ultimately far too complex a medical question to lend itself to the opinion of a layperson. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no medical evidence establishing a diagnosis of asbestosis. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Consequently, the benefit sought on appeal is denied. ORDER Entitlement to service connection for asbestosis is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs