Citation Nr: 1320059 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-32 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a respiratory condition, to include as due to asbestos and welding fume exposure. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In March 2012, a Board hearing was held before the undersigned at the Muskogee RO. A transcript of the hearing is of record. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDING OF FACT The evidence of record fails to establish that the Veteran's respiratory disorder manifested in service or that his respiratory disorder is etiologically related to active service. CONCLUSION OF LAW The Veteran's respiratory disorder was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 5103, 5103A, 5107(b) (West 2002 & Supp 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an October 2009 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the appellant, what information and evidence would be obtained by VA, and provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. As the Veteran's claim was adjudicated subsequent to this October 2009 letter-which meets the content of notice requirements described in post-2005 Dingess/Hartman and Pelegrini case law-such notice is not defective. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, VA treatment records, and the report of a December 2011 VA examination. The Board finds that this opinion is adequate. The VA examiner considered all of the pertinent evidence of record, to include the Veteran's service treatment records (STRs), personal statements and history, and provided a detailed rationale for the opinion stated. 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). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding this issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Also of record and considered in connection with the claims are various statements, including hearing testimony, provided by the Veteran and by his representative, on his behalf. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board notes that the issue was addressed at the hearing and the development (medical examination and nexus opinion) necessary to substantiate the claim was provided by VA. Thus, if error found, the Veteran was not prejudiced. See Bryant, 23 Vet. App. at 498-99 ( "[A]lthough the Board hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the record reflects that they were developed by the Secretary-to include medical examination reports on each of these disabilities and any nexus to service-and there was no indication that the represented appellant had any additional information to submit. Accordingly, the 'clarity and completeness of the hearing record' was intact with respect to these disabilities and the purpose of § 3.103(c)(2) was fulfilled."). For these reasons, the Board concludes that VA has fulfilled its duties to notify and assist the Veteran and, accordingly, will proceed to a decision. II. Analysis The Veteran seeks service connection for a respiratory disorder, which he claims is due to exposure to asbestos and welding fumes while in service. Service connection may be granted for 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. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service injury or disease; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Determinations as to whether the required elements are met are based on analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). A layperson is competent to report his own symptoms, or matters within his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (providing that the categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, such assertions must be considered in light of medical and other evidence of record. See Buchanan, supra. Here, the first two elements of service connection, an in-service event and a present disability, are not in contention. In-service asbestos exposure and exposure to welding fumes is established based on being consistent with the Veteran's military occupational specialty as a shipfitter. 38 U.S.C.A. § 1154(a). Post-service treatment records reflect that the Veteran was diagnosed with chronic obstructive pulmonary disease (COPD) in June 2010. However, the evidence of record fails to establish that the Veteran's respiratory disorder is etiologically related to his in-service exposure to asbestos and welding fumes. Service treatment records reflect that the Veteran was treated in September 1968 for viral pharyngitis, but that a chest X-ray taken at that time was normal. He also had a viral upper respiratory infection in February 1969. In April 1970, he was treated for head congestion and cough, which was determined to be viral. In July 1970 and September 1970 he was treated for a cold. The remainder of the Veteran's STRs is silent for any upper respiratory complaints, and at service separation, no lung or chest abnormalities were noted on clinical evaluation. Post-service, the Veteran's first respiratory complaint occurred in June 2009, with a diagnosis of COPD made the following year, in June 2010. In December 2011, the Veteran underwent a VA examination, which included a review of the Veteran's claims file and medical record, his symptomatology, physical examination and pulmonary function testing. The examiner noted the Veteran's conceded asbestos exposure and his contention that he was exposed to welding fumes, as well as his 42-pack year smoking history. The examiner stated that there was no evidence in medical literature linking the development of obstructive lung disease to either welding fumes or asbestos exposure, and therefore concluded that such exposure was less likely than not the cause of the Veteran's respiratory disorder. The examiner noted that while the Veteran does have COPD, he does not have a diagnosis of asbestosis. The examiner opined that the Veteran's smoking history was more likely the etiology of his respiratory disorder, as research has shown that smoking is a primary risk factor in the development of COPD. (The Board notes that, for claims received by VA after June 9, 1998, as is the case here, disabilities attributable to a veteran's use of tobacco products during service are not service-connectable. 38 C.F.R. § 3.300.) Aside from the Veteran's contention that his respiratory disorder is related to his in-service exposure to asbestos and welding fumes, there is no medical evidence of record that supports this proposition. Though the Veteran stated on his July 2010 VA Form 9 that a VA physician told him it was possible that exposure to welding fumes could have contributed to his COPD, VA treatment notes are silent for any positive nexus opinion linking the two. In the June 2010 VA outpatient treatment record, the examiner noted the Veteran's report of exposure to "weldering fumes" but did not ultimately link this exposure to the Veteran's subsequent development of COPD. The December 2011 VA examiner found that the Veteran's respiratory disorder was less likely than not caused by asbestos and welding fume exposure and more likely due to the Veteran's extensive smoking history. Indeed, as recent as a May 2011 VA treatment record showed that the Veteran continued to smoke (and was seeking assistance to stop smoking). To permit a grant of service connection there must be more than the mere possibility that the Veteran's exposure to asbestos and welding fumes caused the COPD but rather show a reasonable medical probability that these exposures caused the COPD without which the result would not have occurred. See 38 C.F.R. § 3.102 (2012). The Board accords the December 2011 VA examination high probative value, as it is based on a review of the Veteran's medical history and the opinion is supported by a clearly articulated rationale. There is no medical evidence to weigh against this negative opinion. Accordingly, the third crucial Shedden element of service connection has not been demonstrated, and entitlement to service connection has therefore not been established. Additionally, the Board notes that COPD is not a chronic disease as defined by 38 C.F.R. § 3.309 for which service connection may be established by a showing of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Even so, the Board notes that the Veteran has not alleged continuity of symptomatology, nor does the record support such a finding. The earliest VA treatment records in the claims file date from January 2004; however, as stated above, the Veteran's first respiratory-related complaint is not documented until June 2009, with the first diagnosis of COPD occurring in June 2010. Significantly, the Veteran separated from service with no abnormalities of the lungs or chest noted, and he did not seek treatment for respiratory complaints until 2009-nearly 38 years after service separation. The Board has considered the Veteran's assertions of a nexus between his respiratory disorder and in-service exposure to asbestos and fumes. As indicated above, the claim turns on the complex question of etiology of a diagnosed respiratory disorder. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's COPD is etiologically related to in-service asbestos and welding fumes exposure 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) (providing that lay persons are not competent to diagnose cancer). Hence, the Veteran's lay assertions in this regard have no probative value. Accordingly, the Board finds that the claim for service connection for a respiratory disorder must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a respiratory condition, to include as due to asbestos and welding fume exposure, is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs