Citation Nr: 1319499 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 09-09 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an asbestos-related lung disorder. ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1972 to October 1975. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which, in part, denied the Veteran service-connection claim for asbestosis. The Veteran disagreed with the RO's determination, and perfected an appeal as to that issue. In September 2011 and February 2012, the Board remanded the Veteran's claim for additional evidentiary development. After such was achieved, the Appeals Management Center (AMC) readjudicated the claim in an October 2012 Supplemental Statement of the Case (SSOC). The Veteran's claims folder has been returned to the Board for further appellate review. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that a claimants seeks benefits for disabilities as they perceive them based upon particular symptoms, not based upon a particular medical term causing the perceived disability. Id. at 4. The requirement to liberally construe a claim, and the recognition that claimants generally are not competent to provide opinions as to diagnoses that require medical training, compel the Secretary to view and develop a claim for benefits based on the reported symptoms and not just a particular, unconfirmed "diagnosis." Here, however, the Board has limited its review to lung disorder related to asbestos exposure. The Veteran has been previously denied entitlement to service connection for a restrictive lung disorder due to sarcoidosis and entitlement to service connection for sarcoidosis. In his March 2009 substantive appeal, the Veteran specifically noted that he was not appealing his claim to reopen a claim of entitlement to service connection to sarcoidosis. The Board notes that the Veteran executed a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, in September 2009 appointing Disabled American Veterans (DAV) as his representative. However, he later withdrew his representative. He specifically informed VA that he will be representing himself in correspondence dated in February 2011. The VA subsequently sent the Veteran a letter in April 2011 asking him to indicate whether he wished to secure representation in his matter before the Board, to which the Veteran did not reply. While DAV submitted a written brief on the Veteran's behalf in March 2013, the record does not show that the Veteran reappointed this organization as his representative. Thus, the Board will assume that the Veteran wishes to proceed unrepresented in the adjudication of his asbestosis claim currently on appeal. The issues of whether new and material has been submitted to reopen a claim of entitlement to service connection for sarcoidosis and tinnitus, and entitlement to service connection for posttraumatic stress disorder, heel spurs, and hypertensive vascular disease have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 does not have a diagnosis of an asbestos-related lung disorder, to include asbestosis. CONCLUSION OF LAW An asbestos-related lung disorder was not incurred in military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty 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, 3.326(a). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through May 2006 and October 2007 letters, the RO notified the Veteran of elements of service connection and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claim. The letters also specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA's letter notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the service treatment records, Social Security Administration records, VA treatment records, and has arranged for VA examinations in connection with the claim on appeal. The examiners provided sufficient rationale and explanation to support the opinion reached, and included a discussion of relevant treatment records. The Board observes that the prior Remand requested that chest X-rays be reviewed by a certified B-reader and the Veteran has called into question the adequacy of the recent VA opinions as they are based on CT scans rather than B-reader X-ray evaluation. However, as shown below, the evidence suggests that a CT scan is more appropriate in this case. The October 1996 private examiner noted that a CT scan would be more sensitive than chest X-rays for the purposes of evaluating the Veteran's pulmonary condition. Similarly, the May 2012 VA examiner observed that CT scans were much more detailed diagnostic testing than chest X-rays and that a chest X-ray read by a B-reader was not necessary in this case. The Veteran has not presented any competent evidence to suggest that a chest X-ray interpreted by a B-reader would be of greater probative value than a CT scan of the chest. Accordingly, the Board concludes that substantive compliance with the prior Remand has been accomplished. The Board, therefore, concludes that examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained and all necessary development has been undertaken. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis The Veteran contends that he suffers from an asbestos-related lung disorder, claimed as asbestosis, as a result of his exposure to asbestos in-service and post-service. The Veteran reports that he was exposed to asbestos in service due to his work with vehicle brakes, and was exposed to asbestos post-service through his employment with a railroad company. Service treatment records do not include a diagnosis of or treatment for an asbestos-related lung disorder. On his separation examination he had a normal clinical evaluation of his lungs and chest. March 1984 and May 1988 chest x-rays were normal, with no sign of infiltrates of pleural effusion. In September 1988, the Veteran was involved in a motor vehicle accident. He sustained several fractured ribs and a chest tube was inserted in his left lung. A chest x-ray showed a very minimal pneumothorax in the left lung. The right lung was noted to be clear. A subsequent CT scan revealed bilateral pneumothoreaces, greater on the left, with evidence of small bilateral effusions, possibly bloody in nature. In May 1995, the Veteran sought treatment for shortness of breath and productive cough. A July 1995 treatment record reveals the Veteran provided a history of being healthy until April 1995, at which time he experienced progressive shortness of breath, decreased energy, and cough. Initially, in May 1995, he was assessed with pneumonia and started on prescription medication, with instructions to return for a follow-up chest x-ray. In June 1995, the Veteran returned with no improvement in symptoms and with a similar chest x-ray. Work up revealed bilateral infiltrates, bilateral hilar adenopathy, mediastinal adenopathy and bronchoschopy showed chronic inflammation changes. A June 1995 chest CT with contrast revealed adenopathy with interstitial disease in a pattern most consistent with sarcoidosis. Other considerations would include lymphangitic tumors. He underwent an open lung biopsy to rule out possible sarcoid, which would cause interstitial lung disease with adenopathy. The lung biopsy revealed sarcoidosis. The Veteran was started on steroid medication, which caused a remission in his symptoms. One of the Veteran's treating VA physicians noted in July 1995, that he had an -"interesting" pulmonary background because he was in a car accident 5 years prior and had a left chest tube, and his mother had proven Lupus. His pulmonary function tests showed a restrictive pulmonary function curve. In January 1996, a chest x-ray revealed sarcoidosis and a new air space disease, likely pneumonia. A December 1996 VA respiratory examination report included a diagnosis of sarcoidosis with restrictive lung disease. The report does not reference any asbestos involvement. An October 1996 private treatment record from Environmental Toxicology Consultants completed by Dr. M.S. noted the Veteran had a history of exposure to asbestos, a medical history of sarcoidosis, and that he was a lifelong nonsmoker. The only treatment records provided to Dr. M.S. for B-reader evaluation were chest X-rays studies completed in December 1995. The physician noted parenchymal changes consistent with asbestos-related pneumoconiosis. Small irregular opacities of significant profusion were identified bilaterally in the right middle and both lower lung zones. Dr. M.S. also noted that sarcoidosis may result in costophrenic angle obliteration. It was felt that additional physical examination or physiological testing would be helpful in the clinical evaluation of asbestosis, assuming other causes of interstitial and pleural lung changes are eliminated from the differential diagnosis. Dr. M.S. observed that roughly half of patients with sarcoidosis in the U.S. present with pulmonary infiltrates. Based on the information available, he opined that the Veteran's condition "may be asbestos-related." The diagnosis of asbestosis is based upon the elimination of other possible causes of interstitial pulmonary disease. Dr. M.S. noted that the Veteran's "occupational exposure history, latency, and chest x-ray findings satisfy the criteria for definite asbestosis." It was noted that radiographic examination may be complicated by the changes associated with chronic cigarette smoking, but the Veteran reported that he was a nonsmoker. The physician suggested that, in the absence of a setting of characteristic clinical findings, a histological diagnosis may be helpful to distinguish between asbestosis and sarcoidosis. Specifically, it was noted that a chest CT is more sensitive than a standard chest x-ray and would be helpful to better delineate the suggestive pleural and parenchymal findings. During a June 1997 RO hearing, the Veteran testified that physicians had told him that his sarcoidosis was due to his asbestos exposure. He then stated that his asbestos exposure was "primarily related to his railroad" employment. He stated that the VA was treating him for asbestosis and sarcoidosis. A February 1998 private treatment record from Dr. M.A.S. included a chest x-ray, which the physician interpreted to be consistent with the Veteran's known diagnosis of sarcoidosis. During treatment the Veteran reported a history of asbestos-related lung disease, which Dr. M.A.S. recorded as "has been said to have asbestos lung disease." Dr. M.A.S. then diagnosed sarcoidosis, and history of asbestos exposure and possible asbestos lung disease. Treatment records from 1999, from Dr. G.E., include the Veteran's report of his exposure to asbestos in service. He reported he the VA had diagnosed him with sarcoidosis with lung and skin biopsies, but that a Dr. S. (likely Dr. M.S.) had also reported an asbestos disorder of the lung. In an August 1999 letter, Dr. G.E. indicated that it was possible for one person to have concurrent sarcoidosis and asbestosis, and that having the diseases simultaneously would cause impairments that result in disability and death. Dr. G.E. did not diagnose an asbestos-related lung disorder. A November 2003 VA treatment record noted the Veteran had mild bronchitis. An August 2005 chest x-ray noted that the right lung appeared clear, and the left lower lobe had pleural effusions and possibly mild lyphadenopathy. By December 2007, chest x-rays did not show evidence of active infiltrate. A June 2009 chest CT revealed stable sarcoidosis. In August 2006, the Veteran was afforded a VA examination. He reported he had a positive screening for asbestosis, but the examiner noted that he could not find a document for asbestosis. The examiner diagnosed sarcoidosis, and noted that there was no relationship between the Veteran's in-service asbestos exposure and sarcoidosis. In March 2009, the Veteran provided part of a private treatment record from Dr. C.L.J. from July 2001. The Veteran was reviewed for "evaluation of asbestosis." He reported his history of asbestos exposure through his railroad service only. The Veteran reported increased shortness of breath over a 20-year period, with occasional cough. He also reported his right lung biopsy with sarcoidosis diagnosis. He reported he was a lifetime nonsmoker, and he denied other significant industrial exposure. Pulmonary function testing showed fairly significant restrictive defect. A chest x-ray, read by the B-reader, showed parenchymal changes consistent with asbestos related pneumoconiosis and pleural thickening on the right side. Based on Veteran's history of asbestos exposure and his abnormal x-ray and pulmonary function, Dr. C.L.J. felt within a reasonable degree of medical certainty that he has asbestosis related lung disease. Dr. C.L.J. noted the Veteran had only a history of sarcoidosis. In September 2010, the Veteran returned to establish care with the VA. In contrast to earlier records wherein he denied a history of smoking, he reported a prior history of smoking a pack per day for 15-years use until quitting in 1998. The Veteran was treated for substance abuse in 2010, and reported smoking marijuana two to three times a week. He also reported some cocaine use, although there is no indication of the method of consumption. An October 2010 record noted the Veteran had not sought pulmonary treatment for a year, and his sarcoidosis was noted to be in remission. He was also noted to have a history of asbestos exposure. The Veteran provided evidence of his diagnosis of asbestosis by providing an April 2011 VA treatment record which recorded the Veteran's statement that he had sarcoidosis and "asbestos problems and damage in his lungs from that as well." The Veteran was noted to have a sarcoidosis exacerbation in October 2010, and he was on steroids for treatment of his sarcoidosis. A dermatologist thought that one of the Veteran's skin lesions may have sarcoid involvement, although he was primarily noted to have keloids throughout his treatment records. In November 2011, the Veteran was afforded a VA examination. He claimed that he suffered from asbestos-related lung disease from exposure to asbestos during service and during his employment with the railroad. The examiner noted that a high resolution CT to evaluate interstitial lung disease did not show evidence of interstitial lung disease. There was a calcified granuloma or parenchymal calcification in the right lung base. Chest x-ray showed healed rib fractures with no evidence of pleural thickening or pleural calcifications. High resolution CT was reviewed by radiologist and there were no findings consistent with asbestosis lung disease. The examiner found that there is "no objective evidence of asbestosis or asbestos lung disease at this time. Imaging findings are not consistent with asbestos lung disease or asbestosis." In December 2011, the Veteran stated that his treatment records were "replete" with diagnoses of asbestos related lung disease, and that Drs. G.E. and C.J. had diagnosed him with asbestosis. In a March 2012 statement, the Veteran reported he was diagnosed with asbestosis at the Little Rock VA Medical Center in October 2010. In May 2012, the Veteran was afforded a VA respiratory examination. A VA physician was asked to review the claims file and determine whether the Veteran suffered from an asbestos-related lung disorder. The Veteran reported a history of smoking 1/2 pack per day for 11 years before he quit in the 1990s. The examiner noted that VA treatment records included a 1995 workup which revealed bilateral infiltrates, bilateral hilar adenopathy, medistinal adenopathy and a bronchoscopy which showed chronic inflammation changes. A transbronchial biopsy was nondiagnostic. An open lung biopsy was performed to rule out sarcoidosis, as such condition could cause interstitial lung disease and adenopathy. The lung biopsy showed sarcoidosis. The examiner found that the Veteran did not have asbestosis or an asbestos-related lung disease, noting that the high resolution CT scan did not support a diagnosis of asbestosis and he had a lung-biopsy diagnosis of sarcoidosis. Additionally, most of his symptoms were "explained based on sarcoidosis." The examiner elaborated that calcifications noted on his high resolution CT scan most likely were caused by healing granulomas due to sarcoidosis. There is no mention of pleural plaques on his CT scan. A "high resolution CT scan is a much more detailed test than a plan chest x-ray and his more sensitive...hence, a chest x-ray read by a B reader radiologist is really not necessary." The examiner found that the Veteran has sarcoidosis, which is not likely related to service. The examiner cited information on sarcoidosis, which was noted to have an unknown etiology. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the notes that the Veteran has given conflicted statements that call to question the credibility of the medical history presented to clinician and examiners. He consistently reported to private and VA pulmonary treatment providers that he was a lifelong nonsmoker, but then reported to VA therapists and social workers that he smoked cigarettes until the late 1990s, and marijuana until at least 2010. Additionally, when he sought the 1996 private opinion of Dr. M.A.S., it appears that he did not report that he had undergone a prior lung biopsy which revealed sarcoidosis or chest CT that was consistent with sarcoidosis. Upon review of the record, the Board finds that entitlement to service connection for an asbestos-related lung disorder is not warranted. In assessing the service connection claim based on the available evidence of record, the Board finds that the opinions of the VA treatment care providers and the November 2011 and May 2012 VA examiners are more probative than the opinions of the Veteran's private physicians (Drs. M.A.S., G.E., and C.L.J.). Factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In contrasting these opinions, the Board is cognizant that the United States Court of Appeals for Veterans Claims (Court) has recently stressed that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the opinions of the private physicians are based upon limited access to the Veteran's treatment records, and reliance on his statements, which are not completely credible. Dr. M.A.S., in his 1996 consultation, noted that his evaluation was based on the Veteran's statements and chest X-rays of December 1995. He diagnosed asbestosis, but noted that his diagnosed was "in the absence of a setting of characteristic clinical findings" which would be helpful in distinguishing between asbestosis and sarcoidosis. Moreover, Dr. M.A.S. acknowledged that a biopsy or a CT scan would provide better clinical evidence than a chest x-ray in diagnosing the Veteran. The Board finds it significant that the Veteran appears to have not disclosed to Dr. M.A.S. that he had undergone a lung biopsy and a CT scan, both of which revealed sarcoidosis. Similarly, the Veteran reported to Dr. C.L.J. that he was a lifelong nonsmoker and that he did not drink or use drugs in contrast to later treatment records that suggest a past history of smoking for over a decade with treatment for substance abuse, to include alcohol abuse, cocaine, marijuana, and amphetamines. He additionally reported to Dr. C.L.J. that he was diagnosed with asbestosis by x-ray in 1995; however, this diagnosis was provided by Dr. M.A.S. which, as noted above was based on the Veteran's limited and less than credible information. Dr. C.L.J. diagnosed asbestosis based on an abnormal x-ray, pulmonary function tests, and exposure to asbestos, but did not address the diagnosis of sarcoidosis. Dr. G.E.'s opinion that the Veteran's asbestosis was due to his service is based on the assumption that the Veteran's reports of a diagnosis of asbestosis are accurate. The Veteran reported he was diagnosed with asbestosis in October 1995; however, VA treatment records diagnosed sarcoidosis in 1995. Again, in October 1996, Dr. M.A.S. diagnosed asbestosis, but noted that additional testing could differentiate a diagnosis of asbestosis or sarcoidosis. These private opinions appear to be in conflict with VA treatment records that are consistent in their diagnosis and treatment for sarcoidosis, including numerous chest x-rays, several CT scans, and a lung biopsy. Additionally, the 2011 and 2012 VA examiners note that CT scans are more sensitive than chest x-rays and so provide better diagnostic evidence. CT scans have been read as consistent with sarcoidosis. The VA examiners found that there was no evidence of a diagnosis of an asbestos-related lung disorder. Rather, the Veteran's complaints were attributed to sarcoidosis. As the opinions reached by the 2011 and 2012 VA examiners were rendered after the more sensitive CT chest scan was taking and consider the Veteran's entire history to include his significant smoking history, the Board affords them greater weight than the private medical opinions suggesting that the Veteran has asbestos related pulmonary disability. Service connection requires evidence that establishes that a claimant currently has the disability for which service connection is being sought. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Here, the Board finds that the probative medical evidence of record supports that the Veteran does not have an asbestos-related lung disorder. There is no basis for establishing service connection for an asbestos-related lung disorder, as the weight of the probative evidence is against a finding that this disability has existed at anytime during the appeal. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under these circumstances, the Veteran has not met the regulatory requirements to establish service connection, and service connection must be denied. As there is a preponderance of the evidence against the claim for service connection for an asbestos-related lung disorder, reasonable doubt may not be resolved in the Veteran's favor. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an asbestos-related lung disorder is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs