Citation Nr: 1327906 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 08-25 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lung disability to include as due to claimed asbestos and chemical exposure while in service. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1944 to November 1946 and from March 1951 to May 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript from the hearing is on file. In February 2010, the Board remanded the claim for evidentiary development. In a June 2011 decision, the Board denied the issue on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court, in a September 2012 Order, vacated the Board's June 2011 decision and remanded the matter to the Board for action consistent with the terms of the JMR. In March 2013, the Board remanded the claim for evidentiary development. There has been substantial compliance with the mandates of the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). 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 diagnosed lung disability is not attributable to service to include claimed asbestos and chemical exposure. CONCLUSION OF LAW The Veteran's lung disability was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.012, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2012). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this matter, substantially compliant notice was sent to the Veteran in June 2007. After the notice was provided, the Veteran was afforded the opportunity to submit additional evidence and he did so. Regarding the duty to assist, VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's available service treatment records (STRs), VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA was unable to obtain the Veteran's complete STRs because portions are missing and unavailable. VA also has been unable to obtain VA treatment records from the Tampa VA Medical Center dated 1977 to 2002, per a December 2010 Unavailability Memorandum. The Social Security Administration informed VA that their records had been destroyed. The Veteran's claims file was lost in 1980, but VA rebuilt the claims file. Despite the foregoing, VA has followed all appropriate procedures to ensure that all available records are associated with the claims file. There is no indication in the record that any additional available evidence, relevant to the issue decided herein, is not part of the claims file. The Board notes a heightened obligation to assist the Veteran in the development of his case, and to explain findings and conclusions, as well as carefully consider the benefit of the doubt rule when records in the possession of the government are presumed to have been destroyed or missing. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the 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 claimant. See Russo v. Brown, 9 Vet. App. 46 (1996); see also Cromer v. Nicholson, 19 Vet. App. 215 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). The Veteran was also afforded VA examinations in July 2010 and in June 2013. 38 C.F.R. § 3.159(c)(4). The June 2013 examination is adequate as the claims file was reviewed, the Veteran was examined, findings were provided in sufficient detail, and rationale for the opinion was provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In view of the above, VA has substantially complied with the notice and assistance requirements. II. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Competent medical evidence includes evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 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, 492 F.3d at 1372. Regarding asbestos-related diseases, 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. See 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) (DVB Circular), which provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular was subsumed verbatim as § 7.21 of VA's 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 provisions of VA's Adjudication Procedure Manual 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. 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. 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). Neither VA's Adjudication Procedure Manual nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, these 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. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Factual Background During the Veteran's first period of service, the available STRs reflect that a March 1944 chest x-ray was negative. An August 1946 chest examination revealed normal findings. Records from the second period of service note that the Veteran was not present for a physical examination at separation. After service, March and May 1980 VA records reflected normal chest x-rays. An April 1981 VA hospitalization report noted that the Veteran had a clear chest. Other April 1981 records also reflected negative respiratory findings. The Veteran was noted to have a past history of tobacco use, but not current use. In December 1983, the Veteran's initial claim for VA compensation was received. He reported having several disabilities, but there was no claim made at that time for a respiratory disorder. In March 2007, the current claim of service connection for a respiratory disorder was received. The Veteran indicated that he was exposed to asbestos and chemicals while aboard the USS Hancock, USS Gyatt, and USS Bronson during service while working in the ships' laundry rooms. A November 2008 VA treatment record shows the Veteran complained of shortness of breath that worsened over the past four years. The Veteran stated that he was treated by a private pulmonary physician and that he was told that he had a "spot" on his lung. The Veteran "never went back" to the private pulmonary physician. It was thought that the Veteran had a pulmonary nodule in 2008, but subsequent findings did not show a pulmonary nodule. VA treatment records reflect that a December 2008 chest x-ray revealed linear scarring of the Veteran's left lung with no nodule present; upon examination, the Veteran's chest showed bilateral good air entry and no adventitious sounds. The physician noted that the Veteran showed questionable chronic obstructive pulmonary disease (COPD) symptoms, but the records do not reflect that a COPD diagnosis was made at that time. At his November 2009 Travel Board hearing, the Veteran indicated that he had COPD which he believed was related to claimed exposures to asbestos and chemicals; the Veteran also reported a history of smoking for four or five years. The Veteran was afforded a VA examination in July 2010 pursuant to the Board's February 2010 remand. The VA examination included a physical examination, chest x-rays, pulmonary function tests (PFTs), and medical literature review which overall yielded a diagnosis of COPD. The chest x-rays revealed linear changes suggesting old scarring at the left lung base, but without evidence of active disease. The PFTs suggested moderate obstructive lung impairment. The physical examination indicated the presence of COPD. The examiner opined that it was less likely as not that the Veteran's COPD was related to either in-service asbestos or chemical exposures. The examiner explained that those types of exposures result in interstitial lung disease. In May 2011, Dr. H. S., the Veteran's private physician, provided a letter and spirometry report; Dr. H. S. certified that the Veteran was suffering from moderate restrictive lung disease, as also indicated by the spirometry report. Dr. H. S. opined that the Veteran's moderate restrictive lung disease was likely to be from previous military related service. The November 2010 PFTs interpretation that Dr. H. S. considered in making his diagnosis indicates that the Veteran had mild obstruction as well as low vital capacity, possibly from a concomitant restrictive defect. In a May 2013 letter, Dr. H. S. stated that the Veteran has been a patient for more than 15 years. Dr. H. S. stated that the Veteran reported that he never smokes, but his lung condition shows that he has forced expiratory volume in one second (FEV-1) of 55 percent, which indicates that he has moderate obstructive lung disease with small airway disease, as also noted on April 2013 PFTs. Dr. H. S.'s medical opinion is that the Veteran's current lung disability could be from some chemical exposure during his service period. The Veteran was afforded a subsequent VA examination in June 2013. This was done pursuant to the Board's March 2013 remand to, in part, comply with the September 2012 JMR. This was so because Dr. H.S.'s opinions were not considered by the Board at that time of the June 2011 decision or by the July 2010 VA examiner. The June 2013 VA examination included a physical examination, chest x-rays, PFTs, review of the Veteran's claims file, and a review of up to date medical literature related to lung diseases and PFTs. The Veteran was again diagnosed with COPD during the June 2013 VA examination. The examiner opined that the Veteran's lung condition was not caused by or a result of, had its clinical onset during service, or is related to any in-service disease, event, or injury, to include due to claimed in-service exposure to asbestos and chemicals. The examiner explained that the Veteran did not have a documented diagnosis on any PFTs of any restrictive lung condition; asbestos exposure or chemical exposures would be expected to produce restrictive and not obstructive lung disorders. VA afforded the Veteran PFTs in June 2013, but the tests could not be completed because he could not produce acceptable reproducible spirometry data. The examiner stated she disagreed with Dr. H. S.'s medical opinion because PFTs would have documented a restrictive lung conditions, decades after service; however, previous PFTs never documented any definitive restrictive lung disease. The examiner noted that the Veteran's 1980 preoperative chest x-ray was negative and there were no pulmonary complaints or conditions almost 30 years post military discharge. The examiner stated that there is no objective data to support any diagnosis of any asbestos related lung condition and review of current medical literature also supports the examiner's medical opinion. The Veteran's chest x-rays also document no evidence of any interstial lung disease/fibrosis or pleural plaques as often seen in asbestos related lung conditions. IV. Analysis While the Veteran's in-service circumstance of working aboard ship laundry rooms does not create a presumption of asbestos exposure, it is possible that he was so exposed; therefore, the Board finds that the Veteran was exposed to asbestos during service. After a careful review of the evidence of record, the Board finds that entitlement to service connection for a lung disability has not been established. Even if the Veteran had in-service asbestos and chemical exposure, as the July 2010 and June 2013 VA examiners explained, his current lung disability is not due to that exposure. As detailed above, asbestos exposure or chemical exposures would be expected to produce restrictive and not obstructive lung disorders, such as COPD. While Dr. H. S. provided two medical opinions indicating a link between the Veteran's current lung disability and his military service, the Board finds Dr. H. S.'s opinions to have less probative value than the June 2013 VA examiner's medical opinion. Dr. H. S. stated that he has treated the Veteran for more than 15 years, yet in his rationale, he denotes that the Veteran stated that he "never smokes." The Veteran has a documented reported history of smoking a half a pack per day for four or five years in VA examination reports, in VA treatment records, and at the Travel Board hearing. Dr. H. S.'s May 2011 letter indicated that the Veteran was diagnosed with moderate restrictive lung disease, but the November 2010 and April 2013 PFTs interpretation that Dr. H. S. considered in making his diagnosis indicated that the Veteran had mild obstruction as well as low vital capacity, possibly from a concomitant restrictive defect. Furthermore, Dr. H. S. indicated in his May 2011 letter that the Veteran was diagnosed with moderate restrictive lung disease, his most recent medical opinion is silent regarding a diagnosis of moderate restrictive lung disease, but indicates that the Veteran has a diagnosis of moderate obstructive lung disease with small airway disease. Dr. H. S.'s May 2013 diagnosis of the Veteran is more consistent with the medical evidence, but based upon the Veteran's inconsistent reported smoking history, the explanations provided in the July 2010 and June 2013 VA examination reports, and the medical evidence, Dr. H. S.'s medical opinion as to a nexus between the Veteran's current lung disability and his military service is less supported. Other than the medical opinions offered by Dr. H. S., the only evidence linking the Veteran's lung disability to service is his own opinion. However, the Veteran does not have the medical expertise in this case to provide a nexus between his lung disability and service. While the Veteran is competent to describe symptoms such as difficulty breathing or shortness of breath, his lung condition is not a condition that is capable of lay observation, and the determination as to the presence of the disability therefore is medical in nature, that is, not capable of lay observation. The origin of the current lung disability is also a complex medical question. The medical evidence of record does not show any in-service complaints, findings, treatment, or diagnosis of a lung disability. Moreover, the 1980 and 1981 medical records also do not show lung disability. Rather, the findings revealed a normal chest. COPD, the currently diagnosed lung disability, was first shown decades after service. The Board recognizes that there are missing records in this case; however, the decision is not predicated on an absence of evidence which could establish the claim. The June 2013 VA examiner provided a more thorough rationale for her medical opinion by detailing the clinical evidence considered, the medical history provided by the Veteran, a review of the Veteran's claims file, and up to date medical literature. The examiner opined that the Veteran's lung condition is not caused by or a result of, had its clinical onset during service, or is related to any in-service disease, event, or injury to include due to claimed in-service exposure to asbestos and chemicals. The June 2013 VA examiner explained that the current diagnosis is essentially not compatible with the claimed in-service exposures; it is a different type of lung disorder. The Veteran does not have interstitial lung disability, he has obstructive lung disability. The opinion is also supported by the July 2010 VA examiner's similar opinion. The Board attaches the most probative value to the June 2013 opinion, as it is well reasoned, detailed, and consistent with other evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Therefore, the Board finds that service connection for a lung disability to include as due to claimed asbestos and chemical exposure is not warranted. The Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against a grant of service connection for a lung condition. Thus, the benefit of the doubt doctrine is not applicable in the instant appeal and the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. ORDER Service connection for a lung disability to include as due to claimed asbestos and chemical exposure is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs