Citation Nr: 1335854 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 12-29 840 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD) claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to January 1959. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2012 rating decision in which the RO denied the Veteran's claim for service connection for COPD. In June 2012, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2012. In the October 2012 substantive appeal, the Veteran requested a Board video-conference hearing. His representative withdrew the request in writing in August 2013. The Virtual VA paperless claims processing system contains additional VA outpatient treatment records that were considered by the RO in the September 2012 statement of the case. In September 2013, the Vice Chairman of the Board, on his own motion, advanced 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) (2013). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The Veteran was not likely exposed to any, or any significant, friable asbestos as a deck seaman on operational Navy ships or at any other time in service. 3. The Veteran has not been diagnosed with asbestosis or other asbestos-related disability and competent, probative evidence on the question of etiology of the Veteran's current COPD weighs against the claim. CONCLUSION OF LAW The criteria for service connection for chronic obstructive pulmonary disease, claimed as due to asbestos exposure, are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 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) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he 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). 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 (here, the RO, to include the AMC). 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. A February 2012 pre-rating letter provided notice to the Veteran of what was needed to substantiate a claim for service connection, as well as provided general information concerning VA's assignment of ratings and effective date. The notice also explained the Veteran's and VA respective responsibilities to obtain relevant evidence. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal, and that o additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and the report of a March 2012 VA examination. The Board finds that the examination is adequate because it included a review of the history, a physical examination, a review of relevant clinical testing, and appropriate diagnoses with findings and rationale. Records of the award of disability benefits by the Social Security Administration were obtained but show that the basis of the award in 1984 was for the residuals of an injury and disability of the lumbar spine. As there was no mention of respiratory dysfunction, the Board finds that it is not necessary to request additional records from SSA. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that "there must be specific reason to believe [SSA] records may give rise to pertinent information to conclude that they are relevant"). The Board also finds that the development procedures of VA's Adjudication Procedures Manual (M21-1)for claims relating to asbestos exposure (referenced below)have been followed. Records of military duties and the Veteran's post-service occupations, the potential for exposure to asbestos, and the latency effects of this respiratory hazard have been considered. The Veteran has undergone VA treatment and examination to establish a diagnosis and causes for his respiratory disease. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim decided herein, the avenues through which he might obtain relevant evidence, and the Veteran's and VA's respective responsibilities obtaining relevant 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 any 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. Analysis The Veteran served as a U.S. Navy seaman with tours of duty at a Naval Air Station and aboard a destroyer and destroyer tender. He contends that his COPD was caused by exposure to asbestos on piping in his sleeping quarters and while chipping and painting during shipboard service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) an etiological relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the required elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). COPD is not among those diseases for which the presumption is available. The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of medical opinion) are limited to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). After a full review of the record, including the medical evidence and statements made by and on behalf of the Veteran, the Board finds that the claim for service connection for COPD, claimed as due to alleged in-service asbestos exposure, must be denied. At the outset, the Board notes that the Veteran does not contend, and the record does not suggest that the Veteran's COPD first manifested in service or for many years after service or that it is etiologically related to any in-service event other than alleged exposure to asbestos during his Naval service. 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 Procedures Manual (VA 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 criteria discusses below. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The VA 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). Notably, COPD is not among those diseases listed. The VA Manual also acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in the manufacture of roofing materials, commercial insulation, and servicing of friction products, such as clutch facings and brake linings. 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 VA 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 VA 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. See Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. Service treatment records are silent for any symptoms, diagnoses, or treatment for a respiratory disorder. No abnormalities of the lungs and chest were noted by a military physician on January 1959 discharge physical examination and a concurrent chest X-ray was negative. In June 1987, an SSA adjudicator noted the Veteran's report of working after active service as a roofer and insulator from 1959 to 1983 when he sustained a back injury at work. In a February 1998 clinical record, a private physician noted a history of emphysema and the Veteran's report that he smoked one to one and one-half packs of cigarettes for about 30 years before quitting nine years earlier. The physician did not note any current respiratory symptoms or limitations. In a July 1999 VA examination, a VA physician's assistant noted the Veteran's report of a history of smoking from his time in the Navy until 10 years earlier but also noted no respiratory symptoms or limitations. The earliest record in the file of VA outpatient medical care is in December 2007 when a primary care physician noted that the Veteran had an established diagnosis of COPD. The physician noted that the Veteran had no tobacco use for 30 years. The Veteran continued VA primary care through July 2012 that included regular home care visits by a VA advanced practice registered nurse (APRN). Records of this care reveal that the Veteran experienced shortness of breath on exertion and used home oxygen. In a February 2012 letter, the APRN noted, "To the best of my belief, [the Veteran's] COPD is more likely than not, directly related to his inhalation of asbestos during his service in the Navy." The APRN provided no additional comment or explanation in support of the conclusion. In June 2012, the Veteran authorized recovery of records of treatment at a private medical center including the results of a computed tomography scan obtained in March 2012. Records of care from this facility, dated from 2010 to 2013, were recovered and associated with the claims file. A facility representative noted that there was no record of a computed tomography scan. However, the records contain the results of chest X-rays in March and April 2012. Evaluators of the imaging studies compared the results to X-rays obtained in December 2010 and September 2011. In March 2012, the evaluator noted that there were chronic changes in the lungs that were hyperinflated with peribronchial cuffing centrally but with no focal infiltrates or acute findings. The April 2012 image showed no pulmonary edema. Pleural spaces were unremarkable with no calcified pleural plaques or other findings to suggest asbestos-related pleural disease. The same month, a pulmonary function test showed mild restriction with normal diffusing capacity. In April 2013, a VA physician noted a review of the claims file, the Veteran's report of shipboard exposure to asbestos, and his previous diagnosis of COPD. The Veteran reported that he had been diagnosed with COPD in approximately 2000 and had been using oxygen for five years. He reported working as a mechanic for 40 years but did not then mention roofing, insulating, or stopping work in 1983. The Veteran also reported that he smoked for only the last two years in the Navy. The physician noted that the Veteran was prescribed inhalers and corticosteroids in addition to home oxygen. The physician referred to the April 2012 X-ray and pulmonary function test and opined that the COPD was less likely than not incurred in service or caused by asbestos exposure. He noted that duties as a seaman involved minimal exposure. He explained that the objective evidence did not support a diagnosis of a disease caused by asbestos because X-rays showed no pleural plaques or asbestos related disease indications and because the pulmonary function test showed that diffusion capacity of the lung for carbon monoxide was not affected. He further noted that the Veteran minimized his smoking history during the examination. The medical evidence clearly establishes that the Veteran has a current respiratory disability, diagnosed as COPD. Therefore, a current disability, for purposes of establishing service connection, is shown. However, the collective record-to include the competent, probative medical opinion obtained in connection with this claim-simply does not support a finding that there exists a medical relationship between current COPD and services. The Board acknowledges the information in the VA Manual that symptoms caused by asbestos may not appear for decades. However, COPD is not among those diseases noted in the VA Manual that are known to be the result of asbestos exposure, and the Veteran has not been diagnosed with asbestosis or other asbestos related disease. Significantly, despite the Veteran's assertions of an in-service injury from exposure to asbestos in his military occupation, the Board finds that the Veteran was not likely exposed to any, or any significant, friable asbestos as a deck seaman on operational Navy ships or at any other time in service. The Veteran reported to a VA examiner in March 2013 only that he slept in the vicinity of insulated piping and that he performed chipping and painting in the ships anchor chain locker that "was all asbestos." He did not report duties involving the removal or installation of insulation aboard ship. Rather, service personnel records show that the Veteran performed duties as a deck seaman on an operational destroyer and destroyer tender. As observed by the VA examiner, the typical duties of sailors involve ship and line handling and maintenance and preservation of topside spaces and equipment. The duties do not involve maintenance of mechanical systems, piping, and ductwork which may expose a mechanic to friable asbestos fibers during insulation removal and reinstallation. As the purpose of asbestos insulation aboard ships is to protect people from hot surfaces and reduce heat transfer from the contained fluids, his contention is inconsistent with a tank or space for the storage of a large anchor chain. Although the Veteran is competent to provide evidence of his duties and experiences, the Board assigns low probative weight to his report of exposure to asbestos during service, as it is not consistent with his rating or the nature of his work. The Board further finds the most persuasive opinion to address the etiology of current COPD-that of the August 2103 VA examiner, who found that the Veteran's COPD was not caused by exposure to asbestos.-weighs against the claim. The Board places great probative weight on the opinion of the Apri1 2013 VA examiner. This physician reviewed the entire history of potential asbestos exposure, post service occupational exposure, treatment records, and diagnostic tests. The physician supported his opinion that the Veteran's COPD was not caused by asbestos by noting that there was no imaging or pulmonary function test indicators of asbestos related disease and also noted the Veteran's significant history of tobacco use. It is clear from the physician's rationale that without asbestos indications such as infiltrates and pleural plaques there is no evidence of asbestos fiber damage and thus no aggravation. The Board has also considered but has placed much less probative weight on the conclusion by the VA APRN who offered no explanation or supporting clinical evidence. Finally, as for the Veteran's own assertions, the Board acknowledges the Veteran's belief that his respiratory disease is caused by in-service asbestos exposure. Under certain circumstances, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, as to the specific issue in this case, whether COPD is caused by exposure to asbestos, falls outside the realm of common knowledge of a lay person as this requires medical training and consideration of clinical tests and imaging studies. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." In other words, in this case, the Veteran simply does have the training and expertise to persuasively establish the required elements of his claim solely on the basis of his own lay assertions. The weight of the competent, credible and probative evidence in this case indicates that the Veteran's current COPD first manifested many years after service and is not etiologically-related to claimed in-service asbestos exposure. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for chronic obstructive pulmonary disease, claimed as due to asbestos exposure, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs