Citation Nr: 1319485 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 11-28 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a lung disability, to include as due to asbestos exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from November 1943 to April 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified at a hearing before an RO Decision Review Officer (DRO) in January 2012 and at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in April 2013. Transcripts of both hearings are associated with the claims file. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. 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 Resolving all doubt in the Veteran's favor, his lung disability was caused by his in-service exposure to asbestos. CONCLUSION OF LAW A lung disability was incurred in active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans 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, 3.326(a) (2012). In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA 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) 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, M21-1MR (M21-1MR), Part IV, Subpart ii, Chapter 2, Section C. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993). M21-1MR provides that inhalation of asbestos fibers can produce fibrosis and tumors, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus, persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the United States Court of Appeals for Veterans Claims (Court) found that provisions in former paragraph 7.68 (predecessor to the current version contained in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C) of M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos-related disease linked to alleged asbestos exposure in service. VAOPGCPREC 4-2000 (Apr. 13, 2000); 65 Fed. Reg. 33,422 (2000). In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. The provisions of 38 U.S.C.A. § 1103 prohibit service connecting a disability as a result of disease or injury attributable to the use of tobacco products during a veteran's active service. By its terms, 38 U.S.C.A. § 1103 is applicable to claims filed after June 9, 1998. 38 C.F.R. § 3.300. As the Veteran's claim of entitlement to service connection for a pulmonary disorder was presented after June 9, 1998, 38 U.S.C.A. § 1103 must be applied in this case. In determining 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Factual Background and Analysis The Veteran contends that he was exposed to asbestos during his service aboard Navy ships, and his current lung disability is attributable to the asbestos exposure during service. A review of the Veteran's service treatment records (STRs) shows no treatment for or complaints related to any lung problems. A July 1945 STR notes that "[p]hotofleuroscopic examination of the chest reveals no pathological abnormalities." His discharge physical examination, dated in April 1946, indicates "X-Ray chest - essentially negative." Respiratory system, rhonchi, lungs, and pleura were found to be normal. The Veteran was a radio operator during service and served aboard ships that likely had asbestos in them. VA has found that the Veteran was at least minimally exposed to asbestos during service. Thus, the Board does not dispute that the Veteran may have been exposed to asbestos and other environmental pollutants as alleged during active service. A review of the Veteran's post-service treatment records reflects that the Veteran smoked for nearly 23 years, but he quit at the age of 40. A routine chest x-ray, performed in May 1996, revealed no active or acute process in the chest. Pulmonary vascularity appeared within normal limits. X-ray of the chest, performed in February 1998, revealed mild linear atelectasis versus fibrotic scarring at the left lung base. The remainder of the lungs was clear, and there was no acute infiltrate or pleural effusion seen. In a February 2001 chest x-ray, lungs were clear and no pleural effusions were seen. In February 2002, the Veteran was first found to have COPD changes as noted in a private treatment record. He had sought treatment for pneumonia. The radiologist indicated that there is partial improvement of the lower lobe of the left lung as seen previously. The x-ray showed left hemidiaphragm supportive of parenchymal infiltrates/atelectasis, with evidence of some interval improvement. There was mild vascular prominence without congestive heart failure. The Veteran sought private treatment for shortness of breath in February 2010, at which time a chest x-ray revealed changes consistent with COPD, but no infiltrates or effusions. The impression was negative for acute cardiopulmonary disease. Following pulmonary function testing in January 2011, the Veteran was noted to have moderate obstructive lung disease, most likely consistent with chronic bronchitis and/or emphysema. The treating professional indicated that there was some mild response to inhaled bronchodilators, which could indicate some reversibility. In March 2011, the Veteran underwent some testing following his report of asbestos exposure. CT scan of the chest revealed extensive cystic changes in the lungs, specifically, in the mid and upper lung fields bilaterally. There was evidence of moderate dependent airspace disease, likely atelectasis or scarring. There was no pneumothorax or focal lobar infiltrate. The Veteran was afforded a VA respiratory examination in June 2011, during which he denied any direct exposure to asbestos while serving in the Navy. He indicated that the steam pipes throughout his ships were covered with asbestos. He stated that he has recently been evaluated for problems with shortness of breath. He was diagnosed as having COPD. The examiner also noted that the Veteran has a 60+ pack year history of smoking. The Veteran denied taking any medication, chronic cough, orthopnea, or paroxysmal nocturnal dyspnea (PND). The Veteran indicated that he becomes out of breath on moderate exertion, but has no cardiac history. The examiner indicated that previous x-rays have not identified any asbestos-related pulmonary disease. The examiner found no conditions that may be associated with pulmonary restrictive disease. There is no chest wall scarring, no deformity of the chest wall, and no significant weight loss or malnutrition. X-rays of the chest revealed normally inflated lungs; diffuse, bilateral interstitial prominence that are most pronounced at the lung bases. There are no focal infiltrates/opacities. The pleural spaces are unremarkable. The radiologist's impression was mild, interstitial lung disease, likely chronic. The examiner diagnosed the Veteran as having COPD. He opined that the Veteran's currently diagnosed lung disability less likely than not related to his asbestos exposure during service. In so opining, the examiner indicated that the Veteran's x-rays revealed COPD, but no findings of pleural plaques or asbestos-related pulmonary disease. As such, the examiner provided the negative nexus opinion. In June 2012, the Veteran's long-time treating physician provided an opinion with respect to the Veteran's lung disability. The physician indicated that he continues to see the Veteran for his general health and his current lung condition. He reviewed the Veteran's applicable medical records, as well as his own clinical notes/examinations, and opined that it is "as likely as not that [the Veteran's] present pulmonary condition was caused by, or substantially aggravated, by his military service." The physician indicated that this is particularly true based upon the Veteran's service aboard USS LST 273 during WWII. He opined that exposure to asbestos is obvious in such cases, but "other chemicals and petroleum by-products on board Navy ships would have been substantial and likely to have contributed to [the Veteran's] pulmonary condition today." The physician indicated that he is aware of the Veteran's smoking history and that he quit over 35 years ago. He found, however, that this did not have an overwhelming effect on the Veteran's current lung problems. The physician again based his opinion on his physical examination of the Veteran, his office notes, applicable medical records, and his training/experience as a physician. The Veteran subsequently began treatment with a pulmonologist. Following a February 2013 visit, the pulmonologist's overall impression was "mixed process, likely some COPD with some restriction." There is no question that the Veteran has a current lung disability, and he has been at least minimally exposed to asbestos during service. As such, the main question before the Board is whether his current lung disability is related to his in-service exposure to asbestos, or another event, injury or disease in service. The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). In this case, there are two medical opinions of record, one positive and one negative. Both opinions are based upon physical examination of the Veteran and review of the pertinent medical evidence of record. Both opinions were provided by competent and credible medical professionals, and both provided a well-reasoned rationale for their respective opinions. Thus, the Board resolves all doubt in the Veteran's favor and finds that the evidence of record as a whole favors a finding that his current lung disability is at least as likely as not caused by his asbestos exposure during service. The benefit sought on appeal is allowed. ORDER Service connection for a lung disability is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs