Citation Nr: 1321747 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 04-42 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a respiratory disorder due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active military service from January 1984 to October 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned Acting Veterans Law Judge at a July 2007 hearing conducted at the RO. A transcript of the hearing is of record. This case was brought before the Board in September 2010 and February 2012 for additional development. In November 2012, the Board requested a Veteran's Health Administration (VHA) specialist's opinion. The opinion was received in March 2013 and the claim is ready for appellate review. The Board has reviewed the Veteran's Virtual VA file and notes that there are no additional records pertinent to the present claim contained therein. FINDING OF FACT The Veteran's respiratory condition, diagnosed as asthma, 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, nor may its incurrence or aggravation be presumed. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Pursuant to VCAA, upon receipt of complete or substantially complete application for benefits, and prior to an initial unfavorable decision, VA must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). The Veteran was sent a VCAA notice letter in January 2003. The letter provided him with notice of the evidence necessary to substantiate his claim, the evidence VA would assist him in obtaining, and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Court has also held that that VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). The Veteran has established his status as a veteran. He received notice as to the notice elements outlined in Pelegrini and the second, and third elements outlined in Dingess, via the letter mailed in January 2003 letter. He received notice of the fourth and fifth elements outlined in Dingess in a March 2006 letter. Therefore, the duty to assist has been met. The U.S. Court of Appeals for Veterans Claims (Court) has held that content-complying VCAA notice must be provided prior to an initial unfavorable decision by the RO. Pelegrini II, 18 Vet. App. at 120. The January 2003 VCAA letter was sent prior to the RO's initial decision, but there was a timing deficiency with regard to the March 2006 notice letter. This timing deficiency was cured, however, by readjudication of the claims in an August 2009 supplemental statement of the case (SSOC). Mayfield v. Nicholson, 499 F.3d 1317, 1323-4 (Fed. Cir. 2007). In developing his claim, VA obtained the Veteran's service treatment records (STRs), and VA and private treatment records. There is no reported evidence that has not been obtained. In addition, a VA examination was provided in November 2010 and an addendum with an opinion with rationale was obtained in March 2012. In addition, a VHA specialist's opinion was obtained in March 2013. Overall, the VA examination and opinions, in addition to the VHA specialist's opinion provide adequate medical evidence on which to decide the claim. The Veteran was afforded a hearing during which the undersigned noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. No further development is required to comply with the provisions of the VCAA or the implementing regulations. Conway v. Principi, 353 F.3d. 1369 (Fed. Cir. 2004). Legal Criteria and Analysis 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 the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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 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. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. VA's Manual M21-1 Manual Rewrite (M-21MR) contains guidelines for the development of asbestos exposure cases. M-21MR, at Part IV, Subpart ii, Chapter 1, Section H(29) [IV.ii.1.H.29] and IV.ii.2.C.9, in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and certain cancers, among other diseases, with the most common of the diseases resulting from exposure to asbestos being interstitial pulmonary fibrosis (asbestosis). M-21MR notes that the latent period can vary from 10 to 45 years, or longer, between first exposure and development of disease. Exposure can be brief (as little as a month) or indirect (bystander disease). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M-21MR (as in effect from August 2007). VA must determine whether military records demonstrate evidence of asbestos exposure in service and whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure, and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. The Veteran claims that he was exposed to asbestos while serving aboard the USS Kalamazoo. The Veteran has alleged that he was exposed to asbestos on a daily basis during service because asbestos was used to cover all pipes aboard the ship. He has stated that he did not have problems with asthma prior to entering service and that he must use an inhaler due to breathing difficulties. M-21MR, IV.ii.2.C.9(g) notes that there was widespread exposure to asbestos among Navy veterans, and based on the Veteran's history of exposure during service and the widespread exposure among Navy veterans. While there is no conclusive evidence that the Veteran was exposed to asbestos in service, the Board will conduct the analysis below assuming that the Veteran was exposed to asbestos but limited only for the purposes of this decision. However, even assuming the Veteran had in-service exposure to asbestos, competent medical evidence is required for a determination that the Veteran has an asbestos-related disorder and that asbestosis or other asbestos-related disorder is etiologically related to the Veteran's service. After a review of the evidence of record, the Board finds that the weight of the competent and reliable evidence is against the claim. Service treatment records show that the Veteran was seen for complaints of sinus pain and nasal congestion in October 1985. He was diagnosed with sinus congestion and headaches. In May 1986 he was seen for complaints of tightness of the chest and productive cough which had lasted for two days. He was diagnosed with chest congestion. Service treatment records are otherwise silent for any complaints of or treatment for an asbestos related or respiratory condition. Post service, private treatment records of January 2002 show the Veteran had chest x-rays done which showed no evidence of pneumothorax or pleural effusion. X-rays of May 2002 showed no congestive heart failure, pneumonia, nodules, or effusions. An October 2002 pulmonary function test showed possible mild obstructive process. At the May 2005 Decision Review Officer hearing the Veteran testified that he has been diagnosed with asthma but has not been told he has anything related to asbestosis. He testified that that he had similar symptoms in service as he now has. At the Travel Board hearing of July 2007, the Veteran testified that he was involved in the rehauling of the USS Kalamazoo which included taking out old pipe asbestos coverings over steel pipes and throughout the whole ship. He testified he started having respiratory problems in service which continue through today. He further testified he went to sick call about three times and was given albuterol inhalers for treatment. He continues to use the inhalers today. VA outpatient treatment records of September 2006 note the Veteran reported being a smoker and smoking a pack a day. Chest x-rays of November 2006 note the Veteran is a smoker and show normal findings. The Veteran was afforded a VA examination in November 2010. At the time, the Veteran reported that he was diagnosed with asthma after service but is not sure as to when. Results from a pulmonary function test note that there is reversible mild obstructive ventilator defect with air trapping. There is significant reversal of airway obstruction after administration of bronchodilator and the results do not adequately explain the patient's symptoms. After a physical examination, the Veteran was diagnosed with asthma. The examiner opined that asthma is less likely than not caused by service. He noted that the Veteran was not diagnosed with asthma during service and asthma is not a consequence of exposure to asbestos. An addendum to the VA opinion was obtained in March 2012. The examiner opined that it is less likely than not that the Veteran's current respiratory disorder is etiologically related to service. Regarding asbestos as a cause of asthma, he stated that he was unable to find a connection between the two in the medical literature researched. He cited several studies that have found the contrary, that there is no relationship between asbestos exposure and asthma. Further, he noted asthma is not considered an asbestos related illness. Regarding a nexus to service, he stated he could find no competent medical evidence to demonstrate that his current lung condition is related to active service. He stated he found nothing in the records which would allow for a legitimate nexus opinion based on competent medical evidence. A VHA specialist's opinion was obtained in March 2013. The pulmonary specialist stated that the Veteran's asthma had been confirmed by mild reversible airflow limitation on pulmonary function tests. He noted that in his review of the records, he could not find sufficient evidence to suggest that the onset of asthma occurred during service or as a result of an occupational or environmental exposure that is related to service. He also noted that in his review of medical literature, he could find no conclusive evidence of a link between asbestos exposure and asthma. Furthermore, asbestos exposure is associated with several additional findings that are not documented in the Veteran's record, including interstitial infiltrates, restrictive disease, diffusion impairment, pleural plaques, and pleural effusions. Therefore, he concluded that it is unlikely that asbestos exposure caused or was associated with the onset of the Veteran's asthma or symptoms during service. He went on to note that the Veteran was seen in 1985 and 1986 for nasal congestion and chest congestion. He noted antibiotics were not prescribed nor were imaging studies of the sinuses or lungs ordered. It appears the symptoms were treated conservatively and symptomatically. He further noted that asthma was not documented at the time and there was no documentation of the prescription of an inhaler. Regarding the bronchodilator inhalers, he noted that they are a mainstay of treatment for obstructive lung diseases such as asthma and chronic obstructive pulmonary disease. They are commonly prescribed for non-obstructive lung disease such as acute bronchitis or the common cold. Therefore, without proper documentation of the respiratory disease for which the inhaler was prescribed, it is not possible to conclude that its purpose was to treat asthma. Finally, he noted that there is conclusive evidence that tobacco abuse is associated with the development of chronic obstructive pulmonary disease and asthma. It is well documented in the Veteran's records that he has a significant smoking history. Therefore, it is highly likely that the Veteran's shortness of breath and mild airflow limitation relate at least in part to the prior us of tobacco products, even if he has discontinued their use. After consideration of the evidence as delineated above, the Board finds that service connection for a respiratory disorder is not warranted. In this regard, the Board notes that post service treatment records show the Veteran has been diagnosed with asthma. Moreover, service treatment records show that the Veteran was treated for chest congestion and nasal congestion in service. Finally, as noted above, the Veteran has testified he worked in the overhauling of the USS Kalamazoo and was therefore exposed to the asbestos on the pipes. While nothing in the record confirms exposure to asbestos in service, as previously noted, the Board will accept exposure to asbestos only for purposes of this decision. Therefore, the remaining question is whether the Veteran's current respiratory disability, asthma, is related to the symptoms in service or to the claimed exposure to asbestos in service. The Board finds the weight of the competent and reliable evidence is against the claim. All of the competent medical evidence of record notes that the Veteran's asthma was not caused by his exposure to asbestos in service. Indeed, the March 2012 addendum and the VHA specialist also noted no relationship between exposure to asbestos and the development of asthma. Significantly, the March 2012 VA examiner noted he could not find anything in medical literature which would relate exposure to asbestos to the development of asthma, but rather found literature in support of the lack of connection between the two. The VHA specialist also noted he had reviewed the medical literature and found nothing conclusive to support a connection between the two. Both examiners reviewed the claim file and medical literature. The Board places great probative weight on these opinions. Regarding a relationship to the symptoms in service, the Board requested the VHA specialist's opinion once it determined that the March 2012 VA examiner may not have considered the entire record. The VHA specialist reviewed the entire record, noted the in-service symptoms and treatment and the Veteran's history of smoking in reaching the conclusion that the currently diagnosed respiratory disability had no relationship to the symptoms in service but is more likely related to his tobacco use. The specialist further considered the Veteran's reported use of bronchodilators for the treatment of asthma and provided an opinion and reasoning as to why the bronchodilator may have been prescribed in service despite the Veteran not having asthma in service. In all, the VHA specialist's opinion was detailed and considered all of the relevant facts pertinent to the claim, including the Veteran's allegations. The opinion was thorough and provided a detailed reasoning. The Board therefore, places great probative weight on the opinion. Significantly, the medical opinions of record stand uncontradicted by any other reliable competent evidence of record. The record shows Veteran developed asthma after service, and there are no medical opinions of record which link the currently diagnosed asthma to service, including any exposure to asbestos. The Veteran, as a layperson, is competent to report what comes to him through his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting, in a footnote, that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). He is, however, not competent to report on something as complex as a causal nexus between service and a chronic respiratory condition. In conclusion, in the absence of competent and reliable evidence linking the Veteran's current respiratory disorder to his active service, to include exposure to asbestos, the VA examinations/VHA opinion form a preponderance of evidence in this case. As the preponderance of the evidence is against the Veteran's claim for service connection, the benefit of the doubt doctrine is not applicable, and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a respiratory disorder, to include as due to exposure to asbestos, is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs