Citation Nr: 1330511 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 06-03 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), for purposes of accrued benefits. ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from February 1953 to January 1957. He died in March 2010. The appellant is his son. This matter comes to the Board of Veteran's Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This matter was previously before the Board in December 2009 at which time it was remanded for additional development; namely, for a VA examination. As noted, the Veteran died in March 2010, during the pendency of his appeal. His son filed a timely request to be substituted as the appellant in his place, which the RO granted in May 2011. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008); Breedlove v. Shinseki, 24 Vet. App. 7 (2010) (holding that when an appellant dies during the course of an appeal to the Court, substitution may be appropriate if the moving party would be eligible to receive accrued benefits based upon the appeal). Therefore, the Veteran's son is now the appellant in this case. Unlike prior accrued benefits claims, where there has been substitution under 38 U.S.C.A. § 5121A, the record is not closed on the date of death of the original claimant, but remains open for the submission and development of any pertinent additional evidence. In this regard, the Veteran died before he could be scheduled for the VA examination the Board ordered in the December 2009 remand. Consequently, VA referred the case to a VA examiner for an opinion to address the likelihood that the Veteran's postservice chronic obstructive pulmonary disease was related to his military service, with consideration of all pertinent evidence of record. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012) (VA will obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). This action constitutes substantial compliance with the Board's December 2009 remand directives and for reasons discussed in more detail below, the Board accepts the May 2011 opinion as a probative analysis of all the pertinent information in this claim. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran was exposed to asbestos while on active duty. 2. Chronic obstructive pulmonary disease was not shown during active duty service or for many years thereafter, and it was unrelated to service, to include asbestos exposure. CONCLUSION OF LAW Chronic obstructive pulmonary disease was not incurred in or aggravated by the Veteran's active military service, for purposes of accrued benefits. 38 U.S.C.A. §§ 1110, 1131, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 In a June 2005 letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate a claim for service connection for chronic obstructive pulmonary disease resulting from asbestos exposure, as well as what information and evidence must be submitted by the Veteran, what evidence VA would obtain, and of what assistance VA could provide the Veteran in obtaining this evidence. The Veteran was also sent notice of the provisions for disability ratings and for the effective date of the claim in March 2006 . As noted, the appellant is pursuing the deceased Veteran's claim by way of substitution. The Veterans Benefits Administration (VBA) has indicated that a new VCAA notice letter will not be provided to an individual requesting substitution if an adequate VCAA notice letter was previously sent to the original claimant. See VBA Fast Letter 10-30 (Aug. 10, 2010). The Board is not bound by Department manuals, circulars, or similar administrative issues. However, the VBA Fast Letter is instructive, particularly in the absence of regulations pertaining to substitution. Therefore, given that the June 2005 and March 2006 VCAA notice letters to the Veteran were adequate, the appellant does not require additional VCAA notification. The Board is satisfied VA has made reasonable efforts to obtain relevant VA and private medical records and evidence, including obtaining a VA medical in May 2011 opinion regarding the etiology of the Veteran's chronic obstructive pulmonary disease. When VA undertakes to obtain a VA opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the opinion obtained in this case is adequate, as the opinion is predicated on a full reading of the VA and private medical records in the claims file. The opinion considered all of the pertinent evidence of record, to include service treatment records and the statements of the Veteran, it was based on an accurate factual basis, and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, VA's duty to assist in regard to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). In short, the Board is satisfied that VA has fulfilled the duties to notify and assist required by the VCAA and appellate review may proceed to adjudicate the substituted claim. II. Analysis Pertinent Law, Regulations and Administrative Protocols A proper party is entitled to any periodic monthly benefits under laws administered by the Secretary to which the decedent was entitled at his death under existing ratings or decisions. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. A veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision in order for a survivor to be entitled to accrued benefits. See Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). The United States Court of Appeals for Veterans Claims (Court) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F. 3d 1362 (2009). In cases involving asbestos exposure the Court has held that claims must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has guidelines for compensation claims based on asbestos exposure. VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Chapter 2, Section C, (Dec. 13, 2005); see also DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. See VAOPGCPREC 4-00 (Apr. 13, 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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). Discussion The Veteran asserted on his January 2006 substantive appeal that his exposure to asbestos on a daily basis in service for four years contributed to and aggravated his breathing problems. He noted that chronic obstructive pulmonary disease can take years to develop and while cigarette smoking may be one cause, it is not the only cause. He said other causes included breathing in fumes, working in a dusty area and heavy exposure to air pollution for many years. The Veteran's service treatment records do not show diagnoses of, or treatment for, chronic obstructive pulmonary disease. When examined for separation from service in January 1957, the Veteran's lungs and chest were assessed as normal, and a chest x-ray was negative. There is no medical evidence showing the onset of any respiratory problem during the Veteran's period of service. 38 C.F.R. § 3.303. The available post-service treatment records are dated decades after the Veteran's separation from service and show that he was diagnosed with chronic obstructive pulmonary disease in March 2003. In this regard, hospital records from Palmetto Baptist Medical Center show that the Veteran was admitted in March 2003 due to dyspnea, chest pain, and hypokalemia. He reported being in his usual state of health until two weeks earlier when he developed intermittent cough and flu-like symptoms with significant cough. Prior to being admitted to this facility, it is noted that he was treated at Cannon Memorial Hospital for fatigue and chest pain. His prior medical history included hypertension, hypolipidemia, coronary artery disease, and residuals of a November 2001 angioplasty of left circumflex artery. His discharge diagnosis was chronic obstructive pulmonary disease with acute exacerbation and coronary artery disease. His discharge plan was to undergo an evaluation for COPD. A spirometry study performed in August 2003 was consistent with a combined obstructive/restrictive defect. Private treatment records in 2003 indicate that the Veteran had accumulated up to 150 pack years of cigarettes and was up to three packs a day before he quit smoking in 2001. These records also show that he was employed in a manufacturing plant as a production manager and was exposed to oil fumes. In specific regard to the assertion that the Veteran's COPD is related to asbestos exposure in service, the Board notes that he served aboard the USS Borie from approximately June 1953 until his discharge in January 1957, and served as a fireman apprentice, fireman, and boiler technician. Thus, VA has conceded in-service exposure to asbestos. See Board Decision/Remand dated in December 2009. However, merely conceding in-service asbestos exposure does not equate to a successful claim. Medical-nexus evidence is still required. Shedden; VAOPGCPREC 4-00. Upon review of the evidence of record, the Board finds that the preponderance of the evidence is against entitlement to service connection for chronic obstructive pulmonary disease, to include secondary to asbestos exposure. While VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure, and while chest x-rays performed in June and July 2003 showed small effusions/a small left pleural effusion, there is simply no medical evidence to suggest that the Veteran's chronic obstructive pulmonary disease was due to or a consequence of his exposure to asbestos in service. Rather, the only medical opinion on file addressing such a link weighs against the appellant's claim. In this regard, a VA examiner in May 2011, after reviewing the Veteran's claims file at length, opined that it was less likely than not that the Veteran's lung disease and COPD were related to his having been in service or the exposure to asbestos in service. He relayed the Veteran's documented 60+ pack-year history of tobacco abuse and noted that he had other problems predisposing him to lung disease and shortness of breath including cardiomyopathy, morbid obesity, congestive heart failure, coronary artery disease and sleep apnea with cor pulmonale. He opined that it was much more likely than not that his chronic breathing problems including COPD which eventually led to respiratory failure were related to his long history of tobacco abuse. Notwithstanding any other provision of law, a veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service for purposes of this title on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran's service. 38 U.S.C.A. § 1103 (West 2002). The VA examiner further opined that the Veteran developed breathing problems well after his discharge from service, completely unrelated to service predominantly because of his long history of smoking and tobacco abuse associated with his morbid obesity and sleep apnea with cor pulmonale. He said the Veteran's history and all the records correlate to support his opinion for the reasons he gave. He added that he did not believe there was objective supportive data to support a contrary opinion. Indeed, there is no contrary medical opinion on file. As for the assertions that the Veteran's chronic obstructive pulmonary disease is related to asbestos exposure, while lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology, Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009), the etiology of COPD is a medical matter for which lay testimony is not competent. Indeed, even if the Veteran's lay opinion was competent, the specific and reasoned opinion of the trained VA medical professional in May 2011 negating a nexus outweighs the deceased Veteran's general lay assertion of a nexus. This is in light of the medical examiner's training, expertise and specialized knowledge. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on the lack of probative evidence linking the Veteran's COPD to asbestos exposure, or otherwise to service, the Board can find no basis upon which to award service connection for such disability for accrued benefits purposes, as a crucial element of service connection has not been shown. Shedden, 381 F. 3d at 1167 (service connection requires evidence of a nexus between the claimed in-service disease or injury and the present disability). As the preponderance of the evidence is against the appellant's claim, the benefit of the doubt does not apply and the appellant's claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for COPD, for purposes of accrued benefits, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs