Citation Nr: 1316203 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-39 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a respiratory disability, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The appellant had active service in the Navy from May 1950 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of this case has since been transferred to the RO in Montgomery, Alabama. In January 2013, the Board remanded the case to the RO for additional evidentiary development. As discussed in more detail below, the Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The RO continued the denial of the claim as reflected in the April 2013 supplemental statement of the case and returned this matter to the Board for further appellate consideration. 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). FINDING OF FACT The Veteran's respiratory condition, diagnosed as emphysema and chronic obstructive pulmonary disease (COPD) was first demonstrated many years after service and is not etiologically related to exposure to asbestos or other disease or injury during active duty service. CONCLUSION OF LAW A respiratory disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Compliance with Prior Board Remand The Board observes that this case was previously remanded in January 2013 to obtain an addendum VA medical opinion to determine if the Veteran's respiratory disabilities are linked to his active duty. The examiner was also instructed to provide an opinion to clarify why the pulmonary abnormalities seen on the Veteran's December 2011 computed tomography (CT) scan were not compatible with changes associated with asbestos-related lung disease. Addendum VA medical opinions were provided in January 2013 and March 2013 by the same examiner who conducted the original December 2011 VA examination. These VA addendum opinions are adequate. See 38 C.F.R. § 3.159(c)(4). It appears there was substantial compliance with the prior remand orders and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Service Connection The Veteran contends he has a respiratory disability that is related to his military service, specifically his exposure to asbestos during service. See, e.g., Veteran's Statement in Support of Claim, September 2007. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the nexus between in-service asbestos exposure and subsequent respiratory disabilities, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, medical evidence will be required to establish a medical diagnosis of the Veteran's current respiratory conditions and to address the question of whether his in-service asbestos exposure caused his respiratory conditions. In deciding whether service connection is warranted for a disability, 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this 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 claim. 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, 128 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). Initially, the Board finds that the record establishes the presence of a current disability. Records of treatment from the Birmingham VA Medical Center (VAMC) document that the Veteran was diagnosed with COPD in March 2005 and his December 2011 VA examination found the Veteran has emphysema, which was first diagnosed in 2000. The Board therefore finds that the record establishes the presence of respiratory disabilities. The Board will now turn to the Veteran's contentions regarding asbestos exposure. There is no specific statutory guidance concerning asbestos claims, nor has the VA Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual provides information concerning claims for service connection for disabilities resulting from asbestos exposure. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. 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, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not 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. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9(h). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. The VA Adjudication Procedure Manual also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, 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 roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9(f). The Veteran's service records show that he was a boatswain in the Navy aboard the USS Purdy but do not show that he had exposure to asbestos during service. The Veteran stated that he spent little time in the ship's engine room or boiler room. See VA Respiratory Examination, December 2011. However, the record contains competent and credible statements from the Veteran that part of his duties as a boatswain was to wrap and unwrap the ship's pipes with asbestos material when the ship was in dry dock. See Veteran's Statement in Support of Claim, September 2007; see also Veteran's Letter, January 2008; Veteran's VA Form 9, August 2009. Additionally, the Veteran claims he cut through asbestos in the ship's duct work to increase the airflow to his bunk area. See Id.; see also Veteran's Letter, July 2012. The Veteran submitted a handwritten manuscript from a shipmate on the USS Purdy, which describes a hole cut in a vent pipe to provide fresh air to his bunk, corroborating the Veteran's statement about this activity. See K.S. Manuscript. Based on this evidence and the known circumstances of the Veteran's service, the Board finds that the Veteran had exposure to asbestos during service and the presence of an in-service injury is demonstrated. The Board must now determine whether the Veteran's respiratory disabilities are etiologically related to his in-service exposure to asbestos. Service treatment records do not indicate such a relationship; they are negative for evidence of a respiratory disability. The Veteran's respiratory system was found to be normal upon his May 1950 entrance examination and the Veteran signed a statement that he did not have asthma. Chest X-rays conducted in September 1951, September 1952, and July 1954 were negative. A Report of Medical Examination from September 1953 found the Veteran's lungs and chest were normal. The Veteran's July 1954 separation examination noted that his lungs and chest were normal. There is also no evidence of respiratory complaints or treatment until over 45 years after the Veteran's July 1954 separation from active duty. The Veteran has not reported continuity of symptoms since service and the first notation in the record of any diagnosis of a respiratory disability is emphysema in 2000. See VA Respiratory Examination, December 2011. The Board therefore finds that the Veteran has not alleged a continuity of respiratory symptoms. The Board also finds that the competent medical evidence of record weighs against the finding of a link between the Veteran's respiratory disabilities and asbestos exposure. Rather than connecting the Veteran's disability to service and asbestos exposure, the balance of the medical evidence shows that the Veteran's respiratory diagnoses are the result of the Veteran's 40 year history of tobacco smoking. In support of his claim, the Veteran has submitted several medical opinions. In March 2010, Dr. J.B. reviewed a CT scan of the Veteran's chest and found calcifications in the pleura that may be related to previous asbestos exposure. The impression was severe emphysema with inhomogeneous pleural thickening that may be a manifestation of asbestos exposure. In May 2010, Dr. A.B. found that a CT scan of the Veteran's chest showed flexural fluid with calcifications involving the parietal pleura raising the question of prior asbestos exposure. The doctor's impression was extensive pleural-based calcifications, suggesting asbestos exposure. The third opinion from Dr. S.G. in October 2010, noted that the Veteran's chest X-ray findings of hemithorax opacities and plural thickening can be seen in patients with mesothelioma. Malignant mesothelioma tumors, particularly in the pleura and peritoneum, have been linked to excessive exposure to asbestos. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1141 (32nd Ed. 2012). Although these medical opinions appear to lend some support to the Veteran's contentions, the Board finds that they only state the possibility of medical causation as the doctors merely state that the Veteran's respiratory disabilities "may be, " "can be" or "raise the question" of being due to asbestos exposure. Additionally, Dr. S.G.'s opinion is too general as it discusses the general population of patients with mesothelioma, not the Veteran specifically. Overall, these opinions are too general and speculative to support the Veteran's claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim); see also Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009) (a speculative medical opinion is considered non-evidence). In contrast, the record contains a non-speculative and highly probative VA medical examination and VA medical opinions that weigh against the claim. In December 2011, the Veteran underwent a VA respiratory examination, wherein he was diagnosed as having emphysema since 2000. The examiner reviewed a December 2011 CT scan of the Veteran's thorax and found calcified pleural plaques with no adenopathy and no pleural effusion or pneumothorax. The impression was right calcified pleural plaques likely related to prior infection or trauma. The examiner found there was no evidence to suggest asbestosis and emphysematous changes. Overall, the examiner opined that the Veteran's respiratory condition was less likely than not incurred in or caused by the claimed in-service injury as the CT scan indicated pulmonary abnormalities that are not compatible with changes with asbestos-related lung disease. An addendum VA medical opinion was obtained in January 2013, wherein the examiner stated that the prior negative VA nexus opinion was based on the fact that the CT scan indicated emphysema as the primary lung disease and that emphysema is not known to be caused by asbestos exposure. Additionally, while pleural plaque can be caused by trauma, prior infection and/or exposure to asbestos among other causes, none of the other findings of asbestosis were present- namely "honeycomb lung" or a "reticular pattern" of tissue change. In March 2013, the examiner stated that emphysema is most commonly diagnosed as a result of cigarette smoking. He found the Veteran was first diagnosed with emphysema in 2000 and that he has a 40 pack/year history of cigarette smoking, which indicates that his emphysema was a late-appearing disease after years of continuous tobacco abuse, despite cessation of smoking for years. These VA medical opinions were rendered following a complete review of the Veteran's claims file and include well-reasoned rationale supporting the examiner's conclusions. The opinions are therefore afforded significant probative value. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Veteran's VAMC treatment records also contain evidence linking his current respiratory disabilities to his history of tobacco smoking. In January 2007, January 2008 and July 2008, the Veteran's treating VA physicians stated in his prior medical history that he suffers from COPD with a prior history of tobacco use. Overall, the Veteran's treatment records from the Birmingham VAMC and the VA medical opinions from December 2011, January 2013 and March 2013, weigh against his claim for service connection. This evidence clearly establishes that the Veteran's current respiratory conditions were not incurred during service, including as due to asbestos exposure. The Board has considered statements of the Veteran connecting his current respiratory diagnoses to asbestos exposure during service, but as noted above, as a lay person he is not competent to opine as to such a complex medical etiology. See Kahana, 24 Vet. App. at 435; see also Jandreau, 492 F.3d at 1377. The Board acknowledges that the Veteran is competent to testify as to observable symptoms, such as shortness of breath, but finds that his opinion as to the cause of his diagnosed lung conditions cannot be accepted as competent evidence. Id. In sum, the post-service medical evidence of record shows that the first evidence of the Veteran's claimed disability was more than 45 years after his separation from active duty service. In addition, the weight of the competent evidence of record is clearly against a nexus between the claimed disability and his active duty. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). III. VA's Duties to Notify and Assist The VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Appropriate notice was provided in a November 2007 letter and the claim was subsequently readjudicated, most recently in April 2013. Mayfield, 444 F.3d at 1333. As for the duty to assist, the Veteran's service treatment records (STRs), VA medical treatment records and pertinent private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not claimed to be in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). The Veteran has not identified any additional relevant medical records that have not been obtained and associated with his file. One VA examination and two addendum VA medical opinions have been secured in connection with the current claim for service connection. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008). The Veteran's December 2011 VA examination and January and March 2013 addendum VA opinions are sufficient as they provide explanations for the opinions stated as well as the medical information necessary to reach a decision. VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. ORDER Entitlement to service connection for a respiratory disability, to include as due to asbestos exposure, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs