Citation Nr: 1318115	
Decision Date: 06/04/13    Archive Date: 06/11/13

DOCKET NO.  06-24 700	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), asthma, and emphysema, to include as due to asbestos and particulate matter in service.  


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. T. Sprague, Counsel

INTRODUCTION

The Veteran had active service in the United States Coast Guard from July 1959 to July 1963.  

This appeal comes before the Board of Veterans' Appeals (Board) from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.  The claim had been remanded by the Board in November 2009 for evidentiary development, and was denied on the merits in August 2011.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and via a September 2012 order, the August 2011 decision was vacated and remanded for further action by the Board.  The Board, following receipt of the Court order, dispatched the claim to the Veterans Health Administration (VHA) for an expert medical opinion in February 2013.  All actions have been completed, and the claim is ripe for appellate review.  

The Veteran appeared at a Travel Board hearing in June 2009.  A transcript is associated with the claims file.  

The entire claims file, to include the portion contained in the electronic "Virtual VA" system has been reviewed.  


FINDING OF FACT

The Veteran's respiratory disability, most recently assessed as COPD, was, at least in part, caused by exposure to boiler soot while serving on active duty in the U.S. Coast Guard.  





CONCLUSION OF LAW

Entitlement to service connection for a respiratory disability is warranted.  38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA 

On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).  This law defines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  

First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2012).  Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim.  See 66 Fed. Reg. 45620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2012).  Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).  

As discussed in more detail below, sufficient evidence is of record to grant the claim for service connection for a respiratory condition.  Therefore, no further development is needed with respect to this claim.  

Legal Criteria-Service Connection

Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in line of duty, or for aggravation of a preexisting injury or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  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.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Of note, the Veteran's respiratory disability is not one of the conditions determined to be a "chronic disease" under 38 C.F.R. § 3.309(b), and thus, there must be an established nexus between the current disorder and service in order for service connection to be granted (that is, the establishment of continuity of symptoms, on its own, will not suffice in this case).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Analysis

As noted in the introductory section, this case has been before the Board on several previous occasions, and in an August 2011, the claim was denied.  The Veteran appealed to the Court, and via a joint motion for remand between counsel for the Secretary of Veterans Affairs (Secretary) and counsel for the Veteran, the August 2011 Board determination was vacated and remanded for further consideration.  Essentially, the Court determined that the Board erred when it did not consider as to if the Veteran's exposure to boiler soot in service, irrespective of asbestos, could have been a causal agent in the eventual development of respiratory disease.  The Board, in its denial, limited discussion as to if a current lung disorder was caused after service separation by asbestos exposure in service or, alternatively, had arisen on a purely direct basis.  

The salient facts of the case are, essentially, that the Veteran served as a boiler tender in the U.S. Coast Guard between 1959 and 1963, and in such a capacity, he was exposed to the particulate matter associated with the operation of a ship's engine plant.  The service personnel records confirm that this type of service was rendered, and there is no doubt that the Veteran had exposure to boiler soot while working in the engine department aboard a Coast Guard Cutter.  

The service treatment records do not document complaints of respiratory symptoms or any treatment for pulmonary disorders.  The Veteran, many years after separation, was diagnosed with COPD, asthma, and emphysema.  As noted by the Board in the now vacated decision, he does not carry a diagnosis of asbestosis.  

The Veteran submitted numerous medical journals which purported to link particulate matter exposure to the eventual development of chronic lung disease.  Upon receiving this, and upon noting that such information, while in itself of some probative value, was not directly applicable to the Veteran's condition, the claim was dispatched to an expert pulmonologist with the Veterans Health Administration (VHA).  An opinion, dated in February 2013, was returned from a VA pulmonologist who also held a faculty position in pulmonology at the University of Tennessee Health Science Center.  

The VA pulmonologist reviewed the Veteran's service history as a boilerman, and noted that a chronic cough, sputum production, and limiting exertional dyspnea led to a diagnosis of COPD.  The Veteran did have a 30-year cigarette history; however, smoking was ceased in 1989.  The pulmonologist noted that asbestos and soot exposure occurred in the Coast Guard boilers of the time, and that chest imaging had shown calcific nodules of healed granulomatous disease, emphysematous blebs, but no interstitial parenchymal fibrosis or pulmonary asbestosis.  

The VA pulmonologist went on to conclude that "respirologists have long considered repetitive small particle soot inhalation to be potentially damaging to the lower respiratory tract, and possibly contributory to chronic pulmonary disease of the obstructive and restrictive varieties. "  He went on to state that "recent downward revision by the [Environmental Protection Agency] of acceptable levels of soot particle inhalation, provoked by the American Lung Association and various cardiology groups, are certainly supportive of the possibility of patients in occupations such as boilermen in ships of the post-World War II period developing disabling chronic pulmonary diseases."  Because of this, the pulmonologist stated that "it is considered more likely than not (greater than a 50% possibility) that [the Veteran's] COPD could be caused by, or at least aggravated by, repetitive small particle soot inhalation while on active duty as a boiler tender."  

This is the only opinion of record, save for the Veteran's lay assertions on the subject, that directly references soot exposure as a causal agent for the development of current lung disease.  The pulmonologist's opinion is well-rationalized, is fully considerate of the nature of the Veteran's service, and is thus highly probative.  As noted, there is no doubt that the Veteran served as a boilerman in the U.S. Coast Guard, and as referenced by the pulmonologist, served at a time when environmental standards for air pollutants were not as high as they are at present.  It is not unreasonable to assume that the Veteran had limited breathing protection while working on an older Coast Guard Cutter's power plant, and particulate matter is, as noted earlier, conceded.  As such, and as the VA pulmonologist has provided an opinion that is uncontroverted and fully supportive of the Veteran's contentions, the Board can conclude that exposure to this boiler soot, at least in part, contributed to the eventual development of COPD.  As such, the requirements for service connection have been met, and the claim is granted.  








ORDER

Entitlement to service connection for a respiratory disorder is granted.  


____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs