Citation Nr: 1327792 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 10-23 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a respiratory disorder partly claimed to be a residual of exposure to asbestos and to include chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1974 to May 1977. This appeal to the Board of Veterans' Appeals (Board) is from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In support of his claims, the Veteran testified at a hearing at the RO in June 2011 before the undersigned Veterans Law Judge of the Board (Travel Board hearing). The claims require further development before being decided on appeal, so the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that an examination and medical nexus opinion are required in response to a claim of entitlement to service connection when there is: (1) evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or a disease manifested in accordance with presumptive service connection regulations, occurred that would support incurrence or aggravation; (3) an indication the current disability may be related to the in-service event, injury, or disease; but (4) insufficient evidence to decide the case. See also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). The third prong, which requires that the evidence of record "indicate" that the claimed disability or persistent or recurrent symptoms "may be" associated with the established event, injury, or disease in service is a "low threshold". McLendon, at 83. This is not to say or suggest that VA is obligated to provide an examination for a medical nexus opinion merely as a matter of course. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004). If such were the case, this would circumvent the craftily tailored language of the statute and regulation governing when examinations and opinions should be obtained and require provision of an examination and opinion in virtually every instance, so virtually without exception. The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has clarified, however, when determining whether a VA examination and opinion are required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Furthermore, the Veteran is competent even as a layman to proclaim having experienced relevant symptoms (e.g., low back pain and shortness of breath, etc.) ever since his service, even if not also competent to say they necessarily are the result of his military service and the claimed disorders. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Generally, VA is not obligated to provide examinations for medical nexus opinions based on unsubstantiated lay statements alone. See Duenas, 18 Vet. App. at 519. However, where, as here, the Veteran is competent to testify to his continuous symptoms since service, there is at least the required evidence to schedule a VA compensation examination for medical nexus opinions. So these claims must be remanded so VA compensation examiners may evaluate him and determine the etiology of his claimed disabilities - particularly insofar as the likelihood they are related or attributable to his military service or date back to his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). As for his claim of entitlement to service connection for a respiratory disorder, the Veteran alleges he was exposed to asbestos during his military service, though he clarified during his June 2011 Travel Board hearing that he is not alleging he consequently has mesothelioma or asbestosis. He does nonetheless believe his respiratory impairment started during his service since he did not have any respiratory-related issues prior to beginning his service. His service treatment records (STRs) show he was seen for hay fever and bronchitis, but he also readily acknowledged during his hearing to being a chronic cigarette smoker and to that being a contributing factor in his present-day respiratory impairment, although he added that he does not believe it is the only cause. For a claim, as here, filed on or after June 9, 1998, there is an express prohibition against granting service connection for any disability resulting from injury or disease attributable to chronic smoking. 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. He also acknowledged some other possible factors also unrelated to his military service, although he believes they too are only contributing factors, not instead the sole cause. In other testimony during his Travel Board hearing, he indicated he is receiving VA pension benefits, including for his respiratory impairment, so he says there is confirmation he has COPD - including especially in the records of his evaluation and treatment at the VA Hospital in Rosemont, Oregon. He was uncertain whether these records were in his claims file. If they are not, or any others, they will need to be obtained before readjudicating this claim. 38 C.F.R. § 3.159(c). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA-generated records are in constructive, if not actual, possession of the agency and therefore, if potentially relevant, must be obtained and considered). Regarding his alleged exposure to asbestos during his service, there is no statute specifically dealing with service connection for asbestos-related diseases, nor has the Secretary of VA promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases providing 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 since have been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). VA must analyze the Veteran's claim for service connection for asbestos-related disease under these administrative protocols using the following criteria. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). With asbestos-related claims, the Board must determine whether the claim development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the Veteran's claim had been properly developed and adjudicated, the Court indicated the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). The RO must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind latency and exposure information. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). 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: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether 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). This claim therefore must be further developed before it may be properly adjudicated on appeal. In particular, the Veteran's alleged exposure to asbestos needs to be investigated and a VA compensation examination performed to determine what, if any, lung or respiratory condition he has and whether it is the result of exposure to asbestos during his military service (if said exposure first is confirmed). The RO denied both the respiratory disorder claim and the low back disorder claim on the premise the Veteran had not established the required nexus or correlation between these alleged disorders and a relevant disease, an injury, or an event during his military service. Regarding his low back disorder, he claims to have been involved in a motor vehicle accident (MVA) during his service. As another potential cause of his current low back impairment, he points out that he did a lot of physical activity during his service, such as repeatedly jumping into ditches, etc. Other records in the file, however, show he has sustained an injury to his low back since service (i.e., an intercurrent injury) in a motorcycle accident in 1979 or 1980. He also admittedly has had hard labor jobs since his service, in his civilian employment, such as requiring the cutting of firewood, carpentry, etc., when he was a resident of Alaska. But like his current respiratory impairment, he nevertheless believes that at least a portion of his current low back impairment is the result of his military service rather than entirely due to the various things that have occurred since his service. He readily admitted during his hearing that his current low back disability is perhaps not entirely related to his service, but he maintains that it definitely is at least partly related. A medical nexus opinion therefore is also needed to assist in making this important determination and deciding this claim. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Send the Veteran a Veterans Claims Assistance Act (VCAA) letter in compliance with DVB Circular and M21-1, Part VI, regarding his alleged exposure to asbestos while in the military. Then take appropriate action to develop any evidence of his potential exposure to asbestos before, during, and after his military service. 2. Obtain all outstanding VA or other treatment records that may exist. So have the Veteran identify any additional sources of evaluation or treatment for his claimed disabilities. If the records indicated are not already in the file, obtain them. The amount of effort needed to be expended in obtaining identified records depends on who has custody of them. If they are in the custody of a Federal department or agency, so including VA, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), whereas subpart (c)(1) controls if this is not the case. The Veteran also must be appropriately notified if unable to obtain identified records. 38 C.F.R. § 3.159(e)(1). 3. Upon receipt of all additional records, schedule a VA compensation examination to determine the current diagnosis and etiology of the Veteran's low back disorder, especially in terms of the likelihood (very likely, as likely as not, or unlikely) it is directly related or attributable to his military service or, if involving arthritis, initially manifested to a compensable degree within one year of his discharge from service, or otherwise dates back to his service. This term "as likely as not" means at least 50 percent probability. It does not however mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In making this important determination, the examiner should consider all possible causes of any current low back impairment, so including things that admittedly have occurred during the many years since the Veteran's service ended, namely, injury he sustained in a motorcycle accident in 1979 or 1980. He also admittedly has had hard labor jobs since his service, in his civilian employment, such as requiring the cutting of firewood, carpentry, etc., when he was a resident of Alaska. 4. Also schedule a VA compensation examination by to determine the nature and etiology of the Veteran's current respiratory impairment, including his COPD. The examination must include a review of his relevant medical history and consideration of his current complaints, as well a comprehensive evaluation of his lungs and any diagnostic testing deemed necessary. (Please note: the Veteran is competent to attest to asbestos exposure during his service and to continuity of symptoms since, but also consider that COPD is not defined as a chronic disease, per se, according to 38 C.F.R. § 3.309(a), so the Veteran cannot show continuity of symptomatology since service as an alternative means of establishing the required linkage between his currently claimed disability and service. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013)). In any event, ultimately, the Board will have the responsibility of assessing his credibility to, in turn, determine the ultimate probative value of his lay testimony concerning this and other matters related to this claim. The examiner is asked to offer an opinion responding to the following questions: (i). Does the Veteran currently have any residuals of asbestos exposure? (ii). Please specify the diagnosis (or diagnoses) of any current respiratory disorder, including COPD. (iii). Next comment on the likelihood (very likely, as likely as not, or unlikely): (1) that any current condition incepted during the Veteran's period of active military service from May 1974 to May 1977; or (2) that such condition was caused by an incident or event that occurred during such service, including especially asbestos exposure (assuming it is confirmed said exposure in fact occurred)? *The examiner should additionally consider, however, the Veteran's acknowledge history of chronic cigarette smoking and comment on what role, if any, this played in his current respiratory impairment - including especially his COPD. All necessary diagnostic testing and evaluation needed to make these determinations should be performed. The designated examiners must review the claims file, including a complete copy of this remand, for the Veteran's pertinent medical and other history. The examiners must discuss the rationale of their opinions, whether favorable or unfavorable, if necessary citing to specific evidence in the file. The Veteran is hereby advised that failure to report for these medical examinations, without good cause, may have adverse consequences on these pending claims. 5. Then readjudicate these claims in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and give them an opportunity to submit additional written or other argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).