Citation Nr: 1336107 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 08-13 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a pulmonary disorder claimed as asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served during the Vietnam Era from May 1968 to November 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Hartford, Connecticut Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals an appellant brief dated October 2013 that is pertinent to this appeal. All other documents are either duplicative of the evidence in the claims file or irrelevant to the issues on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein have been accomplished. 2. The Veteran's pulmonary disorder claimed as asbestosis did not originate during the Veteran's active service and is not related to his active service. CONCLUSION OF LAW The criteria for the establishment of service connection for a pulmonary disorder, claimed as asbestosis, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in October 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in April 2012. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Legal Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may 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. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting from asbestos exposure. 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). In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of 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. VAOGCPPREC 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis An April 1968 entrance examination noted normal lungs and chest and the Veteran reported he had never had tuberculosis or asthma or experienced shortness of breath, chronic cough or coughed up blood. Service treatment records are negative for complaints of a pulmonary disorder. In a November 1970 separation examination, the examiner also noted normal lungs and chest. The Veteran wrote that "since my last physical my condition has not changed, my physical [sic] is good." A VA medical record dated June 1972 noted that the Veteran smoked one pack per day. A May 1996 private medical opinion stated "I have reviewed the x-ray and asbestos exposure history of [the Veteran]. It is my opinion, to a reasonable degree of medical certainty, that the claimant has ... consistent asbestos." He noted that bilateral interstitial lung disease was related to his asbestos exposure. There is an attached document that reportedly provides information from an April 1996 X-ray film. It is interpreted by the same examiner. Both lungs were apparently found to have "parenchymal abnormalities consistent with pneumoconiosis." It appears these were noted in all lung fields. There were no "plural abnormalities consistent with pneumoconiosis." No other lung pathology was found. VA medical records dated February 2005 and March 2007 show x-rays noting essentially clear lungs. There was reportedly a faint pleural thickening along the left apex which was stable. No new active cardiopulmonary disease found. VA medical records dated October 2006 and March 2007 noted that the Veteran smoked one-half pack per day and that his lungs were clear. In a letter dated October 2007, the Veteran stated that he believed he had been exposed to asbestos in service because he had worked as a mechanic where he repaired brake shoes and clutches containing asbestos. After service, he worked as a diesel machinist for a railroad from 1976 to 1989. The Veteran commented that he was tested for asbestos after being contacted by a law firm that represented victims of work-related asbestos exposure. In an August 2008 VA Form 9, the Veteran claimed that a prior computerized tomography (CT) scan verified that he had asbestos. A June 2008 VA medical record noted that the Veteran had been exposed to asbestos and complained of shortness of breath. The June 2008 CT scan noted an impression of "mild biapical paraseptal emphysema. Minor focal right anterior basilar pleural thickening. No other pleural-parenchymal abnormality." A VA medical record dated January 2009 noted that the Veteran smoked one-quarter pack per day and a VA medical record dated April 2009 noted that the Veteran smoked one-half pack per day. Both records reported clear lungs. In a March 2009 Regional Office hearing, the Veteran claimed that after service he worked for a railroad rebuilding train engines as a machinist but he believed that his primary exposure to asbestos occurred in service. He also noted that around the time he was in his 50s, he started noticing that normal activities like shoveling snow caused him to have "heavier" breathing and required him to take more frequent breaks to catch his breath. In an October 2011 VA examination, the Veteran was diagnosed with chronic obstructive pulmonary disease (COPD). The VA examiner opined that the Veteran's current disorder was less likely as not incurred in or caused by asbestos exposure. She reasoned that the Veteran's COPD was due to smoking because the radiographic and pulmonary function testing (PFT) findings were inconsistent with asbestos-related lung disease. She noted that the results from the May 1996 x-ray were likely inaccurate because x-rays are "not as sensitive a study for evaluating lung disease." She also noted that the most recent imaging study conducted at the VA examination did not document radiographical evidence of asbestos exposure and PFT showed a pattern "consistent with obstructive (due to smoking) rather than restrictive (seen is asbestos related lung disease) lung disease." She emphasized that neither of the Veteran's two CT scans reported findings consistent with asbestos-related lung disease. Although the Veteran has a current pulmonary disorder and was likely exposed to asbestos in service, the preponderance of the evidence weighs against a finding that the Veteran's current disorder is related to in-service asbestos exposure. The Board will address the elements of service connection in turn. First, the Veteran has a current disability because the October 2011 VA examiner diagnosed the Veteran with COPD. Second, however, the Veteran did not incur a pulmonary disorder in service. Service treatment records are negative for complaints related to breathing or the lungs. In the November 1970 separation examination, the examiner noted normal lungs and chest. The Veteran wrote that "since my last physical my condition has not changed, my physical [sic] is good." Finally, the Veteran's current disorder in not related to service or his in-service asbestos exposure. 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. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). The Veteran claims that in service he worked as mechanic and frequently repaired brake pads and clutches which contained asbestos. A review of the Veteran's DD 214 confirms that his military occupational specialty was Wheeled Vehicle Mechanic. In the October 2007 letter, the Veteran stated that after service he worked as a diesel machinist for a railroad from 1976 to 1989. The October 2011 VA examiner concluded that, based on this reported history, the Veteran likely had exposure to asbestos both in service and after service. Moreover, the Manual notes that servicing friction products, including clutch facings and brake linings, is a common form of asbestos exposure. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (f). The Board therefore finds that the Veteran was exposed to asbestos both in service and after service and that sufficient development has been accomplished to make such a determination. However, there is likely no relationship between the Veteran's current disorder and his in-service asbestos exposure. The October 2011 VA examiner opined that the Veteran's current disorder was less likely as not incurred in or caused by asbestos exposure. She reasoned that the Veteran's current COPD was due to smoking because there were no radiographic or PFT findings consistent with asbestos-related lung disease. The examiner also highlighted that the Veteran had two CT scans, neither of which reported findings consistent with asbestos-related lung disease. The most recent imaging study conducted at the VA examination did not document radiographical evidence of asbestos exposure and PFT testing showed a pattern "consistent with obstructive (due to smoking) rather than restrictive (seen in asbestos-related lung disease) lung disease." Other evidence supports the October 2011 VA opinion. VA medical records as early as June 1972 document that the Veteran smoked one pack per day. More recent VA medical records-from October 2006 to April 2009-show that the Veteran continued to smoke between one-half pack and one-quarter pack per day. VA medical records dated February 2005 and March 2007 also show x-rays noting clear lungs. Although the May 1996 private opinion asserted that the Veteran had asbestosis due to in-service exposure, the Board does not find that opinion as persuasive as the October 2011 VA opinion. As noted by the October 2011 examiner, x-rays are not a reliable basis to evaluate lung disease. Furthermore, subsequent X-rays did not reveal similar findings. Moreover, in the October 2007 letter, the Veteran stated that he was prompted to have his lungs tested only after being contacted by a law firm that represented victims of work-related asbestosis. Even after the May 1996 private doctor informed the Veteran of his opinion, it appears the Veteran did not seek treatment until about a decade later. Because the October 2011 VA examiner reviewed the claims file and the examination report is consistent with the other evidence of record, the Board finds that the Veteran was provided with an adequate examination. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the reasons stated above, the Board affords the October 2011 VA opinion more probative value than the May 1996 private opinion. The Veteran asserts in the August 2008 VA Form 9 that the June 2008 VA medical record shows a CT scan that establishes service-related asbestosis. That record noted an impression of "mild biapical paraseptal emphysema. Minor focal right anterior basilar pleural thickening. No other pleural-parenchymal abnormality." In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran has not established that he is a medical professional and therefore, although he is competent to report on symptoms he experiences through his senses, the Board does not find him competent to interpret a CT scan. In contrast, as a medical professional, the Board finds the October 2011 examiner to be competent to determine that the June 2008 CT scan is inconsistent with asbestosis. Since the October 2011 VA examiner noted that neither of the Veteran's CT scans (June 2008 and October 2011) reported findings consistent with asbestos-related lung disease, the Board does not find the Veteran's argument persuasive. Thus, the Board finds that the Veteran has not provided medical evidence sufficient to link his in-service asbestos exposure to his current disorder. VAOGCPREC 04-00. For the same reasons, the Board also finds that his current COPD is unrelated to service. 38 C.F.R. § 3.303. Therefore the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49. ORDER Entitlement to service connection for a pulmonary disorder claimed as asbestosis is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs