Citation Nr: 1324730	
Decision Date: 08/02/13    Archive Date: 08/13/13

DOCKET NO.  10-02 756	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for chronic obstructive pulmonary disorder (COPD).


REPRESENTATION

Appellant represented by:	Charles Binder, Esq.


ATTORNEY FOR THE BOARD

Bridgid D. Cleary, Counsel



INTRODUCTION

The Veteran served on active duty from June 1964 to December 1971 and from June 1995 to September 1995, with additional service in the Navy Reserves, including a period of active duty for training (ACDUTRA) in April 1999.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim of service connection for pneumonia and COPD.

In March 2011, the Board denied the Veteran's claim of service connection for pneumonia and remanded the remaining issue for further development.

The Veteran was scheduled to present testimony before a Veterans Law Judge (VLJ) on January 24, 2012.  However, he failed to report to the hearing.  As the record does not contain further explanation as to why the Veteran failed to report to this hearing or any additional requests for an appeals hearing, the Board deems the Veteran's request for an appeals hearing withdrawn.  See 38 C.F.R. § 20.704 (2012).

This appeal was processed in part by using the Virtual VA paperless claims processing system.  The documents contained in this system, including the hearing transcript, were reviewed in conjunction with this appeal.  Accordingly, any future consideration of this veteran's case should take into consideration the existence of this electronic record.


FINDING OF FACT

COPD did not have its clinical onset in service and is not otherwise related to active duty, including claimed asbestos exposure.


CONCLUSION OF LAW

COPD was not incurred in or aggravated by service.  38 U.S.C.A. §§ 101, 1110, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.6, 3.303, 3.306 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent a letter that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

In compliance with the Board's March 2011 remand, VA obtained July 2011 VA examination and an addendum opinion in December 2012.  In July 2011, the examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disabilities.  To the extent that this opinion did not adequately address the issue of whether the respiratory distress in April 1999 during ACDUTRA evinced an in-service onset of that disability, the December 2012 addendum provided additional information and a detailed rationale.  Combined, they are adequate for VA purposes.  Thus VA has complied with the March 2011 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Analysis

The Veteran has not claimed and the record does not reflect that COPD had its onset during his initial period of active duty.  There is no showing that COPD had its onset or was aggravated during his relatively short period of service in 1995.  He indicated in his original claim that his COPD had its onset in the mid 1990s and was related to asbestos exposure in service.  He later clarified that he stood fire watch for bulkhead work on ship in 1965, which required him to stand within five feet without protective gear, noting that civilians wore protective gear.  See November 2007 statement.  The Veteran believes that this duty exposed him to asbestos.

In cases involving a claim of entitlement based on exposure to asbestos during military service as the cause of current disability, the claim must be analyzed under VA administrative protocols.  Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993); Ashford v. Brown, 10 Vet. App. 120, 124-25 (1997).

With respect to claims for service connection for a disability involving asbestos exposure, VA must make a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors.  M21-1MR, Pt. IV, Subpt. ii, Ch. 2, Sec. C, Para. 9(h) (M21-1MR, IV.ii.2.C.9.h).
Inhalation of asbestos fibers can produce fibrosis, asbestosis, tumors, pleural effusions and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate).  M21-1MR, IV.ii.2.C.9.b.  Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment.  M21-1MR, IV.ii.2.C.9.f.  Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease).  M21-1, Part IV, 7.21(b)(2). 

Assuming without conceding that the Veteran was exposed to asbestos in service, there is no showing in the record that he has disability as a result of that exposure.  He has not been diagnosed with asbestosis or an asbestos-related lung disease.  Radiographic changes indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum.  M21-1, Part IV, 7.21(a)(1).  Instead, he has been shown to have COPD.  See July 2011 VA Examination.  Furthermore, to date, the record does not contain radiographic evidence of changes indicative of asbestos exposure.  See e.g., March 2001 records (referencing chest x-ray findings of right middle lobe infiltrate indicative of pneumonia); April 2011 VA examination chest x-ray results (showing clear lung fields).  As the Veteran has not been diagnosed with an asbestos-related lung disease, service connection for such a disability based on inservice asbestos exposure is not warranted.

The Veteran also claims that his COPD began or was aggravated during a period of active duty for training (ACDUTRA).  Specifically, he argues that an April 11, 1999, emergency room visit showing bronchospasm felt to be an exacerbation of underlying COPD evinces an in-service onset or aggravation of this disability.

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.  Active military, naval, or air service includes any period of active duty for training  (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d).

Certain evidentiary presumptions--such as the presumption of sound condition at entrance to service and the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service are provided by law to assist Veterans in establishing service connection for a disability or disabilities.  38 C.F.R. § 3.304(b), 3.306.

The advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA.  Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim.").

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b).  Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened.  See Davis v. Principi, 276 F.3d. 1341, 1346-46 (Fed. Cir. 2002) ("[E]vidence of temporary flare-ups symptomatic of an underlying preexisting condition, alone, is not sufficient for a non-combat veteran to show increased disability under 38 U.S.C.[A.] § 1153 unless the underlying condition is worsened."); Maxson v. West, 12 Vet. App. 453, 458 (1999)(citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)), aff'd 230 F.3d 1330 (Fed. Cir. 2000).

The evidence reflects an April 1999 emergency room visit, during a period of ACDUTRA, showing bronchospasm that was felt to be an exacerbation of underlying COPD.  However, it is not readily apparent that this represented the onset of COPD or its aggravation.  The Veteran himself indicated that COPD had its onset in the mid 1990s.  The July 2011 VA examiner opined in that it was less likely as not that the Veteran's COPD was incurred in or caused by the Veteran's annual two-week training in 1999.  The examiner consulted with a pulmonary specialist and noted that pneumonia was not an etiology for COPD.  The bronchospasm was felt to be an exacerbation of COPD and that the Veteran being a farmer and having hay was a risk factor for respiratory disease.  

In a December 2012 addendum opinion, the examiner addressed the Veteran's contention that this disability began during the Veteran's ACDUTRA.  Again, this examiner found that it was less likely as not that the Veteran's COPD had its onset or was aggravated during the period of ACDUTRA in 1999.  The lack of pulmonary function tests was cited and it was concluded that it would be speculative to diagnose COPD without them.  It was added that COPD had a gradual onset and it was unlikely that it suddenly occurred during this relatively short period of service.  The "exacerbation of COPD," referred to suggests that it must have been present prior to his annual training.  Furthermore, this examiner found that one episode of exacerbation during ACDUTRA could not have aggravated the underlying disease beyond its natural progression.  The Veteran has not submitted any other medical nexus evidence to refute this examiner's opinion.  

The Board has considered the Veteran's lay assertions that his COPD is related to his military service.  In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg.  Here, however, given the passage of time, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case.

As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to resolve in favor of the appellant.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  For the reasons stated, the Board finds that service connection for COPD is not warranted, and this claim is denied.

ORDER

Service connection for COPD is denied.




____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs