Citation Nr: 1324988	
Decision Date: 08/06/13    Archive Date: 08/13/13

DOCKET NO.  07-13 190	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for a chronic lung disorder, to include as secondary to asbestos and cyanide exposure.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

S. M. Marcus, Counsel



INTRODUCTION

The Veteran served on active duty from December 1974 to December 1978.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which declined reopening the claim finding no new and material evidence had been submitted. 

The case was brought before the Board in January 2009 and December 2010, at which times it was remanded to provide the Veteran notice compliant with duty to assist regulations.  Thereafter, the case was brought before the Board again in June 2010, at which time the claim was reopened and remanded to further assist the Veteran in the development of his claim, to include affording him a VA examination. Having found that the dictates of these remands have been substantially complied with, the Board may proceed.  See Stegall v. West, 11 Vet. App. 268 (1998).

The Board notes that the 2009 and 2010 remands also included issues seeking entitlement to service connection for bilateral shoulder disabilities, bilateral knee disabilities, and bilateral eye disabilities.  These claims have been granted in a January 2013 rating decision.  As the full benefit sought has been granted, the issues are no longer before the Board here.  Cf. AB v. Brown, 6 Vet. App. 35 (1993). 

The issues of entitlement to service connection for sleep apnea, cervical spine disorder, lumbar spine disorder, peripheral neuropathy, and hypertension along with issues of entitlement to increased ratings for diabetes mellitus, type II, bilateral shoulder disabilities and bilateral knee disabilities 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.  



FINDING OF FACT

The Veteran's lung disorder, namely asthma, pre-existed service and was not permanently aggravated by any incident of his military service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for a chronic lung disorder, to include as secondary to asbestos and cyanide exposure, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, and 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Assist and Notify

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  

The 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).  Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

The Board finds that the duty to notify was satisfied by a letter sent to the Veteran in December 2010.  The letter addressed all of the notice elements and the issue has since been readjudicated many times, most recently in a June 2013 Supplemental Statement of the Case (SSOC).  

The duty to assist was also met in this case.  The Veteran's service treatment records are in the claims folder.  All pertinent VA treatment records and identified private treatment records have been obtained and associated with the file to the extent possible.  A VA examination with respect to the issue on appeal was obtained in July 2012.  38 C.F.R. § 3.159(c)(4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examination obtained in this case adequate.  The examiner thoroughly examined the Veteran, offered diagnosis opinions, and reviewed the claims file.  The specifically addressed the Veteran's contentions and provided a nexus opinion with a complete rationale stated, considering and noting all pertinent evidence of record.  

Thus, the Board finds that VA has satisfied the duty to assist the Veteran and may proceed to consider the merits of the claim.



Service Connection (Lung Disorder)

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110.  Service connection may also be granted for any disease diagnosed after discharge, 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 service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  

The Veteran's service treatment records indicate he reported asthma on his October 1974 enlistment examination.  At that time, the examiner noted asthma diagnosed at 7 years old.  Shortly thereafter, the Veteran was treated in December 1974 for shortness of breath, where he again indicated he had asthma "all [his] life."  He was treated for shortness of breath, chest problems, wheezing in the lungs, sore throat, and productive cough numerous times throughout his military service, to include in May 1976, June 1976, and October 1976.  His December 1978 separation examination, however, was silent as to any chronic lung disorders.

A veteran who served during wartime service after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 U.S.C.A. §§ 1111, 1137 (West 2002); see Wagner v. Principi, 370 F.3d 1089 (Fed.Cir. 2004).  

The presumption of soundness, however, attaches only where there has been an induction medical examination during which the disability about which the Veteran later complains was not detected.  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  In contrast, here, the Veteran's childhood asthma was noted on his October 1974 enlistment examination.  Although the diagnosis was not independently confirmed at that time, the examiner noted the diagnosis of asthma at seven years old.  The Veteran has never disputed his asthma pre-existed service.  For these reasons, the Board finds the presumption of soundness does not attach with respect to asthma.  With respect to any other lung disorder, the Veteran is presumed to have entered service without any other lung ailment.

A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 C.F.R. § 3.306(a). 

The Veteran acknowledges he suffered with asthma since childhood, which he informed the military of upon entering service.  In a July 2012 VA examination, he claims he "got by" in the Navy and feels his asthma was "roughly the same" after his service in the Navy.  Rather, the Veteran is concerned he developed additional lung disorders or an aggravation of his childhood asthma as a result of exposure to toxins in the Navy, to include asbestos, cyanide, and welding fumes.  (See, e.g., April 2005 VA outpatient treatment record; July 2012 VA examination report)

Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Visser v. Packer Engineering Assoc., Inc., 924 F.2d 655, 659-60 (7th Cir.1991) (lay assertion cannot be "flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from [the witness's] experience;" witness not competent to describe motive because testimony too much like psychoanalysis, for which witness not qualified).

In McGinty v. Brown, the United States Court of Appeals for Veterans Claims (hereinafter, "the Court") observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993).  However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) [hereinafter "DVB Circular"], that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI.  [This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.] See also VAOPGCPREC 4-00 (Apr. 13, 2000).

The applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions 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. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id. at 7.21(b)(1) (emphasis added). The latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See id. at 7.21(b)(2).

"Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty v. Brown, 4 Vet. App. 428, 429 (1993). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21-1, Part VI,  7.21(c).

Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000.

The Veteran's military records confirm he served in the Navy, but no MOS is specified on his DD-214.  As will be explained below, however, regardless of whether the Veteran was exposed to asbestos, cyanide, welding fumes, or any other claimed toxin, the medical evidence does not support a diagnosis of asbestosis and the probative medical evidence does not relate any current lung disorder to in-service chemical exposure.  Rather, the probative medical evidence notes a diagnosis of asthma, which pre-existed service and was not aggravated therein.  The Veteran does not have any other lung disorder related to his military service.

After service, post-service VA and private treatment records indicated treatment for chest related complaints, to include asthma.  A March 2012 statement from the Veteran's private physician, Dr. Franklin, indicated a diagnosis of "obstructive pulmonary disease secondary to environmental exposure to [hazardous substances] while in the Navy."  Specifically, Dr. Franklin mentioned exposure to toluene, methylethylketone, JP4, aviation fuel, motor gas, paint strippers, asbestos, cleaning solvents, and non-skid hydraulic fluids while serving in the Navy as a structural mechanic.  However, Dr. Franklin did not mention or otherwise indicate being aware of the Veteran's childhood asthma.  Rather, Dr. Franklin merely opined that "it is obvious a multitude of his medical problems can be related to this hazardous exposure while in the Navy."

The Board does not find the March 2012 opinion from Dr. Franklin to be probative medical evidence.  In this regard, it is not clear the private physician was aware of all relevant facts (specifically, the Veteran's childhood asthma) in rendering the opinion.  Medical opinions based on incomplete or inaccurate factual premises are not probative.  See, e.g. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).  Additionally, Dr. Franklin merely and speculatively concluded the Veteran's medical problems "can be" related to hazardous exposure while in the Navy.  Cf. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding speculative or inclusive medical opinions are not probative).  For these reasons, the Board does not find the opinion probative.

In contrast, the Veteran was afforded a VA examination in July 2012 where the examiner reviewed the claims folder, to include Dr. Franklin's opinion, considered the Veteran's descriptions of in-service toxin exposure, and thoroughly examined the Veteran.  Upon full examination, the only "obstructive pulmonary disease" found was asthma, described as mild asthma.  The examiner noted that the Veteran himself did not claim his asthma had worsened in the military, but rather he was concerned he may have developed additional lung disorders as a result of in-service toxin exposure to asbestos and cyanide.  The examiner opined that the Veteran "clearly" had asthma prior to military service based on the records and his own history.  With regard to aggravation, the examiner opined "there is no indication of permanently worsened asthma during or as a result of his military service, since it is currently still mild."  The examiner further found "no indication of any additional lung condition or any condition that resulted from his exposure to hazardous chemicals during service."  The examiner noted Dr. Franklin's opinion, but concluded the opinion was speculative (only indicating the medical problems "can" be related to hazardous exposure) and without knowledge of the Veteran's childhood asthma.  

Taking all of those things into account, the July 2012 VA examiner concluded that the Veteran's current lung condition "is less likely as not" related to military service including exposures during service.  The examiner further concluded "there is also no indication that the condition was permanently aggravated by military service."

The Board finds the July 2012 VA examiner's opinion persuasive.  It is based on a thorough examination, consideration of the Veteran's contentions, and a complete review of the claims folder.  The examiner also addressed and reconciled Dr. Franklin's opposing opinion.  
 
In short, no medical evidence confirms a chronic lung disorder aside from asthma.  The probative medical evidence indicates the Veteran's asthma pre-existed service and was not aggravated therein.  The Veteran is not entitled to the presumption of soundness because childhood asthma was noted on his entrance examination into the military.  While it is possible the Veteran was exposed to asbestos or other toxins during his service in the Navy, he is not diagnosed with asbestosis or any other chronic lung disorder probatively linked to in-service toxin exposure or any other incident of his military service.

The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for the Veteran's claimed lung disorder is not warranted.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).



ORDER

Entitlement to service connection for a chronic lung disorder, to include as secondary to asbestos and cyanide exposure, is denied.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs