Citation Nr: 1326017 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 09-42 287 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a pulmonary/respiratory disorder, to include chronic asthma and chronic obstructive pulmonary disease (COPD), claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from September 1956 to August 1957. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2009 rating decision in which the RO denied service connection for chronic asthma with COPD. In May 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in October 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2009. In the October 2009 substantive appeal, the Veteran had requested a Board hearing to be held at his local VA RO. In June 2012, the Veteran elected to withdraw that hearing request in a written statement which is of record. In February 2013, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). Also in February 2013, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After accomplishing further action to the extent possible, the RO/AMC continued to deny the claim (as reflected in a June 2013 supplemental SOC (SSOC), and returned this matter to the Board for further appellate consideration, Consistent with the record, to include what the RO has actually adjudicated, and to give the Veteran every consideration in connection with the current claim, the Board has modified the claim on appeal as reflected on the title page. An August 2013 review of the Virtual VA (VVA) paperless claims processing system reveals that VA/CAPRI records (dated up to late March 2012) were printed in May 2013, and considered by the RO as reflected in the June 2013 SSOC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished 2. The Veteran's assertions as to in-service asbestos exposure are vague, unsubstantiated and speculative; he has not been diagnosed with asbestosis, and there is no competent, persuasive evidence or opinion that there exists a medical nexus between any currently claimed and manifested pulmonary/respiratory disorder and any in-service disease, injury or event. CONCLUSION OF LAW The criteria for service connection for a pulmonary/respiratory disorder, to include chronic asthma and COPD, claimed as due to asbestos exposure, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.655 (2012). REASONS AND BASES FOR FINDINGS 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 was revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the 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 a November 2008 pre-rating letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate his service connection claim for a respiratory condition. This letter also informed the Veteran of what information and evidence must be submitted by the appellant and what information and evidence would be obtained by VA. The February letter also 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, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The April 2009 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the November 2008 letter-which meets Pelegrini's and Dingess/Hartman's content of notice requirements-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claim herein decided. Efforts have been made on at least two occasions to obtain the Veteran's service treatment records (STRs) and reserve records; however, it was concluded that these were destroyed in a fire and could not be recreated, as further discussed below.. On file are pertinent private and VA medical records, and articles identified as relevant by the Veteran's representative in a January 2013 brief. Also of record and considered in connection with the appeal are various written statements by the Veteran and his representative, on his behalf. The Board finds that no further RO action, prior to appellate consideration, is required. Pursuant to a Board Remand of February 2013, a VA examination was ordered. The record reflects that the examination was scheduled for June 2013, and that the Veteran received timely notice of it, but elected to cancel the examination, without good cause. Hence, there was substantial compliance with the February 2013 Board Remand, and there is no further requirement to assist the Veteran in providing an examination. Consistent with the provisions of 38 C.F.R. § 3.665 (2012), the claim will be considered on the basis of the evidence of record (as discussed in detail below). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Background The Veteran filed an original service connection claim for asthma and COPD in October 2008. At that time, he indicated that he had been exposed to tear gas type agents as part of gas mask training and had been treated at the hospital in Fort Ord, CA, in November 1956. The Veteran's STRs and separation documents are unavailable in this case, as they were destroyed in a fire, according to service department responses of 2009 and 2013; they cannot be reconstructed. Private medical records of Northern Hospital include a January 2007 record reflecting that the Veteran was seen for complaints of shortness of breath and coughing; the record reflected that no history of asthma or COPD was given, but that a history of smoking and emphysema was provided. A record dated in January 2008 reveals that COPD was assessed based on chest X-ray film findings. VA records dated in July 2008 note a history of asthma and reveal the Veteran's history of smoking 11/2 packs a day of cigarettes for the last 50 years. Records dated in 2008 and 2009 reflect that the Veteran's active medical problems included diagnosed COPD and tobacco use disorder. In a statement dated in November 2008, the Veteran indicated that he believed he had been exposed to asbestos at Fort Ord, CA; and at Fort Carson, CO where he served in 1956 and 1957. He also suggested that he sustained asbestos exposure during his reserve duty in Virginia and/or Ohio. The statement reflected that the Veteran described his MOS as infantry rifleman. The file contains a January 2009 medical statement of Dr. M.M. to the effect that the Veteran had severe COPD, confirmed by pulmonary function tests, which also showed mild restrictive ventilator defect. It was noted that this had been related to asbestos, and commented that the Veteran was exposed during service. The doctor opined that it was at least as likely as not that the Veteran's medical condition was related to his military service. On a March 2009 Questionnaire About Military Service, the Veteran indicated that he had reserve service from August 1957 until September 1962. In a November 2009 statement, the Veteran indicated that he felt that he was exposed to asbestos while serving in the Army Reserves. He also reported that in approximately 2005 or 2006, he had been treated for and diagnosed with for asthma and asbestos exposure at Northern Hospital in Mount Airy, North Carolina. The Veteran stated that he believed that buildings in the military were constructed with asbestos and that asbestos was in the barracks. In a brief dated in January 2013, the Veteran's representative argued that it is conceivable that asbestos exposure in service played a part in the Veteran's COPD, citing to several websites containing potentially pertinent information. Pursuant to the February 2013 Board remand, the RO was requested to arrange for the Veteran to undergo VA pulmonary/respiratory examination, by an appropriate physician, at a VA medical facility, to obtain information as to the nature and etiology of all current lung disabilities, including COPD and asthma. In conjunction with the examination, it was requested that the website information identified by the Veteran's representative in the 2013 brief be printed and associated with the record, as well as provided for the examiner for review and consideration, as well as being reviewed by the RO as part of the record on readjudication. No STRs or reserve records were received pursuant to that Remand, although they were requested. A review of the file reveals that the website information identified by the Veteran's representative in the 2013 brief was in fact printed out and associated with the file, to the extent possible (not all sites could be found - see June 2013 SSOC). The articles related to the M60 Machine Gun, the Browning Machine Gun, and an environmental contractor report (AMI Environmental) about the Schofield Barracks in Oahu, Hawaii, dated in May 2012. The file contains correspondence issued from VA to the Veteran dated May 31, 2013, advising him of a VA examination scheduled for June 11, 2013. Information on file also reflects that the Veteran called VA to cancel the examination, stating that he did not want an appointment at that time. The June 2013 SSOC reflects consideration of VA medical records dated until late March 2012, as found in the Veteran's Virtual VA file, revealing continued treatment for COPD. III. Analysis In this appeal, the Veteran asserts that he was exposed to asbestos during his active military service in 1956 and 1957 at Fort Ord, CA and Fort Carson, CO which resulted in a pulmonary/respiratory condition, claimed as COPD and asthma. The Veteran also maintains that he had asbestos exposure in Virginia and/or Ohio during his reserve service dates reported to be between August 1957 and September 1962 (unverified). At the outset, the Board notes that that the Veteran's STRs for both his active service and claimed reserve service period are entirely unavailable in this case, despite attempts to locate them made in 2008/2009 and 2013. The Veteran was notified of this fact in correspondence from VA dated in March 2009. In a case such as this where it appears that STRs are unavailable and/or incomplete, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of- the-doubt rule, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board must point out, however, the O'Hare precedent does not raise a presumption that the missing medical records would, if they still existed, necessarily support the claim. Case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when a veteran's medical records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). The Board has analyzed the claim with these heightened duties in mind. 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). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA's Adjudication Procedure Manual, M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29.a (Sept. 29, 2006). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-00. VA must analyze the Veteran's claim of entitlement to service connection for asbestos-related disease under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The Adjudication Manual contains guidelines for the development of asbestos exposure cases. They indicate 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 cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). The Adjudication Manual also acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in the manufacture and servicing of friction products, such as clutch facings and brake linings. Also noted is that the latent period 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). The Adjudication Manual provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; 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. See also VAOPGCPREC 4- 2000 (April 13, 2000); Ashford v. Brown, 10 Vet. App. 120, 123-24 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). The Board also points out that the pertinent parts of the Manual guidelines on service connection in asbestos-related cases are not substantive rules, and that there is no presumption that a veteran was exposed to asbestos in service. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. Considering the pertinent evidence in light of the above, the Board finds that the Veteran's service connection claim must be denied. As a preliminary matter, the Board acknowledges the Veteran's failure to cooperate by not attending the VA examination scheduled for June 2013, without good cause given. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1989). Failure to report for VA examinations is governed by 38 C.F.R. § 3.655 (2012), which instructs that when a claimant with an original claim for service connection fails to report for a scheduled VA examination that claim will be decided based on the evidence of record. Id. Accordingly, this claim will be adjudicated without the benefit of VA examination findings which would have greatly assisted in obtaining an accurate and correct picture of the Veteran's claimed pulmonary/respiratory disability and its relationship to service. While the Veteran maintains that asbestos exposure was sustained during active and/or reserve service between 1956 and 1962, the Board has reason to question the competency, accuracy and credibility of that lay account. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Even if the Board to assume that the Veteran is generally competent to share his belief that he was exposed to asbestos during active/reserve service, the fact remains that the record does not reflect that he has any actual personal knowledge of exposure and that actual exposure has not been otherwise objectively established. With respect to credibility, his initial lay assertions of asbestos exposure were not made until 2008 when the claim was filed, more than 50 years after the Veteran's active military service, and only after a pulmonary/respiratory had already been diagnosed. Further, he has provided only vague and minimal information regarding the times, places, and circumstances where he might have been exposed to asbestos in conjunction with military service, nor did the Veteran ever give a history of any such exposure as shown by private and VA medical records dated from 2008 to 2012. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Accordingly, the lay information provided by the Veteran regarding his alleged asbestos exposure lacks sufficient and supporting detail, is unsubstantiated, and speculative, and as such his accounts are found to lack credibility. The Board further observes that the articles which were mentioned in the January 2013 brief, to the extent found, are entirely irrelevant to the Veteran's claim, and provided no supporting information relating to his claimed asbestos exposure. Further, absent STRs, there is no way to substantiate or verify the Veteran's reports of being treated for a pulmonary/respiratory condition during active and/or reserve service. Even assuming that he was treated as reported, in November 1956 at Fort Ord following tear gas exposure, he has not specifically maintained, nor does any objective evidence indicate that any pulmonary/respiratory was clinically diagnosed and/or treated during active or reserve service. Significantly, the earliest evidence of any pulmonary/respiratory is dated in 2008, at which time COPD was diagnosed, as was tobacco use disorder, and records revealed the Veteran's 50 year history of heavy smoking, but failed to document any history of asbestos exposure. The Board points out that the passage of many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection for the disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The file contains private medical records from Northern Hospital in Mount Airy, North Carolina. However, these records do not reflect that the Veteran was treated for and diagnosed with for asthma and asbestos exposure at Northern Hospital in Mount Airy, North Carolina in 2005 or 2006, as reported by the Veteran. Further, the file contains only one medical opinion addressing the matter of whether there exists a medical relationship between currently diagnosed COPD and the Veteran's period of service, and the Board finds such opinion unpersuasive. When reviewing medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for the opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In a January 2009 medical statement of Dr. M.M., it was observed that the Veteran had severe COPD, confirmed by pulmonary function tests, which also showed mild restrictive ventilator defect. It was noted that this had been related to asbestos, and commented that the Veteran was exposed during service. The doctor opined that it was at least as likely as not that the Veteran's medical condition was related to his military service. The doctor's opinion contained no rationale supporting the conclusion. Further, the doctor accepted as fact the Veteran's unsubstantiated and vague reports of asbestos exposure, not established as a factual matter in this case; and failed to account for and discuss his long 50-year history of heavy smoking. Inasmuch as the opinion is flawed in the aforementioned ways, the opinion is accorded no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229 (1993)) (holding that the Board is not bound to accept medical opinions that are based upon an inaccurate factual premise). See also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). The Board further finds that, to whatever extent the Veteran and/or his representative attempt to establish the existence of a medical relationship between a currently claimed lung disorder and the Veteran's service on the basis of lay assertions, such attempt must fail. Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), diagnosing and identifying the etiology of the currently claimed pulmonary/respiratory disability-particularly, linking it to any incident of service, to include reported asbestos 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) (lay persons not competent to diagnose cancer)." Here, the matter of identifying the likely medical etiology of the currently claimed disability is a complex medical matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without the appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on such a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for a pulmonary/respiratory disability, to include chronic asthma and COPD, claimed as due to asbestos exposure, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, credible, and persuasive evidence supports 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 Service connection for a pulmonary/respiratory disability, to include chronic asthma and COPD, claimed as due to asbestos exposure, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs