Citation Nr: 1327111 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 09-09 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a lung disability, to include asbestosis and chronic obstructive pulmonary disease (COPD), as related to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from February 1952 to September 1955. This matter comes to the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction is currently with the RO in Montgomery, Alabama. In June 2012 a Board hearing was held at the RO before the undersigned; the transcript is of record. In September 2012 and February 2013 the Board remanded the claim for an opinion which has been completed. The Veteran's virtual VA file has been reviewed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's lung disability, to include asbestosis (if any) and COPD, did not have onset in service and was not caused or aggravated by the Veteran's active military service, including exposure to asbestos. CONCLUSION OF LAW The criteria for service connection for a lung disability, to include asbestosis and COPD, as due to asbestos exposure in service, have not been met. 38 U.S.C.A. § 1110 , 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection will be granted if it is shown that the veteran suffers from a 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 the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. With respect to asbestos exposure, there is also no specific statute or regulation pertaining to the development of claims involving 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, M21-1MR, IV.ii.1.H.29. Also, an opinion by VA's Office of General Counsel has discussed the development of asbestos claims. VAOPGCPREC 4-00 (Apr. 13, 2000). The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). 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. Id. at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include 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. Id. at Subsection (h). The Veteran presented multiple theories of entitlement. Firstly, in his March 2009 appeal the Veteran stated that he was hospitalized for pneumonia in the Navy. Service treatment records do not show any treatment for pneumonia. In March 1952 he was treated for acute pharyngitis and prescribed penicillin. Multiple chest x-rays were taken but there were no findings. These x-rays do not only provide evidence against this particularly claim, but other theories as well, failing to indicate a problem with the lungs in service, nothwithstanding efforts to find a problem at this time in light of the acute problem. An August 1955 separation examination included chest measurements but his lungs and chest were found to be normal, providing more evidence against this claim. The second theory of entitlement is that the Veteran's lung disability, asbestosis specifically, is due to exposure to asbestos in service. The Veteran alleges that he had asbestos exposure while being transported on a naval ship to Korea (5 weeks) and while stationed in Bainbridge, Maryland from May to October 1952. Following service, he worked for more than 25 years for a company doing valve and fittings inspections. In November 2000, the Veteran settled a suit against his former post-service employer for asbestosis exposure. In June 2013 a medical doctor reviewed the claims file and provided an opinion as to the diagnosis and etiology of the Veteran's lung disabilities. Dr. SH reviewed the claims file and the prior VA examinations. Dr. SH found that the Veteran did meet the criteria for the diagnosis of asbestosis that was caused by asbestos, explaining that the claims file shows data from a specific workup designed to have high sensitivity for the condition with a specific form of imaging and that the VA examinations did not use the same techniques with the same sensitivity. Dr. SH opined that the asbestosis condition was less likely as not related to or caused by the Veteran's time in the service. He explained that the Veteran's in service potential exposure - based on duration and type of duties - was defined as limited. The claims file evidence shows that the potential for asbestos exposure after service was quite large based on the occupational history and the duration of this exposure and that studies have shown that the risk of asbestosis is directly related to the duration and dosing potential of the asbestos itself. Dr. SH concluded that the [Veteran's] post service occupation is clearly the etiology. The third theory of entitlement is that the Veteran has a lung disability due to tobacco use which was caused or worsened by his service connected posttraumatic stress disorder (PTSD). The Veteran did smoke for approximately 20 years, quitting in the 1970s, and he has been diagnosed with PTSD. With respect to tobacco-related disability, for claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C.A. § 1103(a). However, the VA General Counsel has held that neither 38 U.S.CA. § 1103(a), nor its implementing regulations at 38 C.F.R. § 3.300, bar a finding of secondary service connection for a disability related to use of tobacco products after service. VAOPGCPREC 6-2003 (Service Connection for Cause of Disability or Death, 69 Fed. Reg. 25178 (2004)). The questions to be resolved with regard to a claim for service connection for a tobacco-related disability alleged to be secondary to a disability not service connected on the basis of being attributable to a veteran's use of tobacco products during service are: (1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. In June 2013 Dr. SH reviewed the claims file and found that the Veteran did have COPD. Dr. SH opined that the Veteran's COPD is less likely as not related to or caused by his time in the service and provided the rationale that the Veteran has a well documented tobacco abuse history and that tobacco abuse has been documented for decades as being the culprit for COPD. Dr. SH noted that there was no other etiology in the SMRs other than the tobacco abuse as the cause of COPD. In response to the question as to whether the Veteran's PTSD caused him to use tobacco products after service and whether the COPD would not have occurred but for the use of tobacco products caused by the Veteran's PTSD, Dr. SH found that the Veteran's tobacco abuse was less likely as not related to or caused by his PTSD. Dr. SH provided the rationale that tobacco abuse is a condition with multifactorial etiologies and there is no commonly accepted caused and effect link between PTSD and tobacco abuse. Dr. SH identified the key fact against any direct correlation between PTSD and tobacco use was the fact that the Veteran was able to quit tobacco despite having PTSD that worsened over the years. Dr. SH also reported that the main etiology for tobacco use/abuse is a genetic predisposition. In support for his opinions Dr. SH provided a long list of medical literature. With regard to the Veteran's statements overall, as a general matter the Board must consider whether a veteran's particular disability is the type of disability for which lay evidence is competent. Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435, as to the specific issue in this case, the etiology of asbestosis and COPD, 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). The Veteran is competent to report what he experiences through his five senses, such as shortness of breath. Layno v. Brown, 6 Vet. App. 465, 469 (1994). He is not competent to provide an opinion on the etiology of his lung disability, to include asbestosis and COPD, as he does not have the requisite medical expertise to make such an opinion (simply stated, the Veteran does not have the medical expertise to diagnose the etiology of his disability), therefore his opinion is of little probative value. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Additionally his opinion is outweighed by the competent medical opinion of record which specifically refuted his theories of entitlement, finding that his asbestosis was caused by post service occupational exposure, and that his COPD was caused by tobacco use which was not related to PTSD. The weight of the competent evidence is against a finding that a lung disability, to include asbestosis and COPD, had its onset during active service, or was caused or aggravated by active service or is related to asbestos exposure in service. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for a lung disability, to include asbestosis and COPD, is not warranted. Notice and Assistance 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). A January 2008 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the June 2012 Board hearing, the VLJ identified and fully explained the issue on appeal, and asked questions focused on the elements of service connection needed to substantiate the Veteran's claim. Furthermore, the VLJ specifically questioned the Veteran regarding outstanding and potentially pertinent records that may have been overlooked, and suggested that such records be obtained. The Board remanded the claim for the identified additional evidence which has been associated with the claims file. The Veteran was assisted at the hearing by an accredited representative from the American Legion. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) , and that any error in notice provided during the Veteran's hearing constitutes harmless error. In response to a September 2012 remand by the Board a VA opinion was sought in October 2012 with an addendum in January 2013. However the VA opinion was not conducted by a medical doctor, as requested, and another medical opinion was sought. The June 2013 VA opinion was adequate as it was conducted by a medical doctor who reviewed the record and provided an opinion as to whether the Veteran had asbestosis and COPD, and provided an opinion as to the etiology of the Veteran's current lung disability and provided a supporting rationale. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). ORDER Service connection for a lung disability, to include asbestosis and chronic obstructive pulmonary disease (COPD), as related to asbestos exposure, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs