Citation Nr: 1316079	
Decision Date: 05/16/13    Archive Date: 05/29/13

DOCKET NO.  09-12 362	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for a pulmonary disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active service from July 1960 to June 1964.

This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.


FINDINGS OF FACT

The competent and probative evidence establishes that the Veteran's pulmonary disability is at least as likely as not due to in service exposure to asbestos.


CONCLUSION OF LAW

The criteria for service connection for a pulmonary disability, diagnosed to include COPD, restrictive disease and asbestosis, have been met.  38 U.S.C.A. §§ 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board grants service connection for a pulmonary disability.  As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases.  However, in 1988 VA issued a circular on asbestos-related diseases which 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, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (hereinafter "M21-1").  Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims.  VAOPGCPREC 4-2000 (April 13, 2000).

The Board notes that the aforementioned provisions of M21-1 were rescinded and reissued as amended in a manual rewrite (MR) in 2005.  See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos."

VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria.  Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).  The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease.  The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor.  M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a.

The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis).  Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure.  As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others.  The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease.  M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f.

The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran.  M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h.

The record shows that the Veteran is an ex-smoker who stopped smoking over 30 years ago.  The law provides that, for claims filed after June 9, 1998, as in the instant case, service connection may not be granted on the basis that disability resulted from disease or injury attributable to the use of tobacco products during active service.  See 38 U.S.C.A. § 1103(a) (West 2002); 38 C.F.R. § 3.300 (2012).

The Veteran's service treatment records do not show any complaints, treatment or diagnoses related to COPD, asbestosis, or other pulmonary disorders.  His service personnel records show that he served aboard the U.S.S. Colonial for much of his active service and that the related civilian occupation was cadet engineer.  The Veteran wrote in a statement dated in February 2008 and received in March 2008 that during service he worked in engine rooms and boiler rooms as a mechanic and that the lines were wrapped in asbestos.  Since his military service he worked as a mechanic, a butcher, truck driver, lead security officer and in law enforcement and management.  The Board, considering the doctrine of resolving any reasonable doubt in the Veteran's favor, finds for the purpose of the present decision that it is at least as likely as not that the Veteran was exposed to asbestos during his service on the U.S.S. Colonial and that he was not exposed to asbestos before and after service.  

VA treatment records show that in April 2007 the Veteran was diagnosed with a right upper lobe air space disease with a questionable right hilar mass, and the treatment notes indicate that there was not a malignancy.  June 2007 VA treatment records state that the Veteran had asbestos related pleural disease.  A September 2007 CT scan showed pleural calcifications of both sides of the chest, and the treating physician felt that asbestos exposure should be considered.  A February 2008 x-ray showed linear scarring peripherally in the left midlung zone associated with some degree of pleural thickening.

The Veteran had a VA examination in July 2008.  He reported being exposed to asbestos during service and gave a history of tobacco use of one to two packs a day of cigarettes from ages 13 to 30.  The Veteran complained of progressive shortness of breath, dyspnea and exertion and cough over the past five years.  The cough occurred daily and there was occasional clear sputum.  There was dyspnea with minimal exertion, and he used an albuterol meter dose inhaler.  On examination the lungs were clear to auscultation and percussion.  Pulmonary function testing showed a moderate obstructive lung defect.  The examiner diagnosed the Veteran with COPD - chronic tobacco abuse and a history of asbestos exposure and opined that the Veteran's current respiratory condition was most likely caused by tobacco abuse.  He felt it was not at least as likely as not that asbestos had caused the pulmonary condition because there were no findings, such as pleural effusions, fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, or lung cancer.

A January 2009 x-ray from VA treatment showed resolving right upper lobe infiltrate, and was otherwise unchanged from the prior study.

In May 2009 the Veteran submitted information from the American Lung Association's website about the short and longterm health improvements of smokers who quit.  He also submitted information from the Merck Manual website about pleural fibrosis stating that calcification may be the only evidence of exposure.

A VA physician reviewed the record in April 2013 and wrote that asbestos has not been directly linked to COPD, and it was unclear if it was a factor leading to the development of COPD.  The pulmonary function tests showed that the Veteran had restrictive lung disease and borderline low normal airflow, and the physician felt it was unclear that the Veteran had COPD.  The physician felt that there was at least a fifty percent likelihood that the Veteran had asbestosis based on the pulmonary function tests and the CT scan.  The pleural plaques in the chest imaging were also consistent with asbestosis.

After reviewing the evidence of record, the Board finds that service connection is warranted for the Veteran's pulmonary disability, to include COPD, restrictive disease and asbestosis.  Significant probative value cannot be given to the July 2008 VA examiner's opinion because he wrote that there were not findings consistent with asbestos exposure but did not discuss medical records that were consistent with such exposure.  Therefore, the rationale of the VA examiner is not supported be the record.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (opinion based upon inaccurate factual premise has no probative value).

In contrast to the July 2008 VA examiner, the April 2013 VA physician felt that there was at least a fifty percent chance that the Veteran had asbestosis based on the Veteran's history, pulmonary function tests and the CT scan.  The Court has held that "most of the probative value of a medical opinion comes from its reasoning" and the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."  Id.  Therefore, probative value can be given to the physician's statement.  In any event, applying the benefit of the doubt doctrine, where all reasonable doubt is resolved in favor of the Veteran when the evidence is in relative equipoise, the Veteran's claim for service connection for a pulmonary disability, to include COPD, restrictive disease and asbestosis, is granted. 


ORDER

Service connection for a pulmonary disability, to include COPD, restrictive disease and asbestosis, is granted.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs