Citation Nr: 1336190 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-48 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as a result of asbestos exposure and/or as secondary to service-connected asbestosis. 2. Entitlement to service connection for a respiratory sleep condition, to include as a result of asbestos exposure and/or as secondary to service-connected asbestosis. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1949 to March 1953. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In June 2013, the Board remanded the case to the RO for additional evidentiary development. As discussed in more detail below, the Board finds there was substantial compliance with its remand orders as they relate to the issue of entitlement to service connection for COPD. Thus, the Board may proceed with a determination of this issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). However, there was not compliance with the Board's remand orders as they relate to the Veteran's claim for entitlement to service connection for a respiratory sleep condition, resulting in a necessary remand. Id. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013); 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a respiratory sleep condition, to include as a result of asbestos exposure and/or as secondary to service-connected asbestos is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's COPD was first demonstrated many years after service and has not been shown by competent evidence to be causally related to service or his service-connected asbestosis. CONCLUSION OF LAW The criteria for service connection for COPD, to include as a result of in-service asbestos exposure and as secondary to the Veteran's service-connected asbestosis, have not been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); 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). See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Appropriate notice was provided in an April 2008 letter and October 2009 statement of the case. The claim was subsequently readjudicated, most recently in an August 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. As for the duty to assist, the Veteran's service treatment records (STRs) and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not claimed to be in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). The record does not otherwise indicate any additional relevant medical treatment records that have not been obtained and associated with the Veteran's file. The case was previously remanded in June 2013 to obtain updated VA medical treatment records and a new VA respiratory examination. It appears there was substantial compliance with the prior remand orders and the Board may continue with its adjudication. See Stegall, 11 Vet. App. at 271. Medical records from March 2013 to July 2013 from the Roseburg VA Medical Center (VAMC) were obtained. The Veteran was afforded a VA examination in July 2013. The VA examination was adequate as it relates to the Veteran's COPD claim as the examiner considered the entire record, noted the Veteran's medical history and provided explanations for the opinions stated. 38 C.F.R. § 3.159(c)(4); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Service Connection The Veteran contends he has COPD that is related to his military service, specifically his exposure to asbestos during service, or, in the alternative, that is related to his service-connected asbestosis condition. See Veteran's Statement in Support of Claim, January 2008; see also Veteran's VA Form 9, December 2009. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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 established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service-connection on a secondary basis requires evidence sufficient to show that: (1) a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, the nexus between in-service asbestos exposure or service-connected asbestosis and COPD, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, medical evidence will be required to establish a medical diagnosis of COPD and to address the questions of whether the Veteran's in-service asbestos exposure or service-connected asbestosis caused or aggravated his diagnosed COPD. In deciding 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's electronic claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). Initially, the Board finds that the record establishes the presence of a current disability. Records of treatment from the Roseburg VAMC document that the Veteran was diagnosed with COPD in September 2003 and has been continuously treated for this condition from 2003 to the present. See Roseburg VAMC, Addendum, September 2003 ("COPD is evident"); see also Roseburg VAMC, Primary Care Provider, November 2003 (assessment of COPD). The Board will now turn to the Veteran's contentions regarding asbestos exposure. Based on the facts in the record and October 2009 grant of service connection for asbestosis, it is conceded that the Veteran was exposed to asbestos during active duty. Thus, the presence of an in-service injury is demonstrated. The Board must now determine whether the Veteran's COPD is etiologically related to his active military service. Service treatment records do not indicate such a relationship; they are negative for evidence of a respiratory disability. The Veteran's respiratory system was found to be normal upon his June 1949 entrance examination and the Veteran signed a statement that he did not have asthma. A chest X-ray conducted during the June 1949 examination was negative. The Veteran provided a history of no asthma, no shortness of breath and no chronic cough. The Veteran's March 1953 separation examination noted that his lungs and chest were normal and a chest X-ray found his chest was normal. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that the Veteran did not experience any symptoms of the claimed condition for approximately 50 years after service. The Veteran has not reported continuity of symptoms since service and the first notation of COPD in the record is from 2003. See Roseburg VAMC, Addendum, September 2003 ("COPD is evident"); see also Roseburg VAMC, Primary Care Provider, November 2003 (assessment of COPD). This long period without problems weighs against the Veteran's claim for direct service connection for COPD. The Board also finds that the competent medical evidence of record weighs against the finding of a link between the Veteran's COPD and asbestos exposure or his asbestosis condition. Rather than connecting the Veteran's disability to service, asbestos exposure, or his asbestosis condition, the medical evidence finds that the Veteran's COPD is the result of his 57 year history of tobacco smoking. The record contains a non-speculative and highly probative VA medical examination that weighs against the claim. Pursuant to the Board remand, in July 2013, the Veteran underwent a VA respiratory examination, wherein he was diagnosed as having COPD since 2003. The examiner conducted a pulmonary function test and found the Veteran's asbestosis with restrictive lung disease is responsible for his decreased forced vital capacity (FVC), while his COPD is responsible for his decreased forced expiratory volume in 1 second (FEV1). Overall, the examiner opined that the Veteran's COPD was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale provided was that cigarette smoking is clearly the single most important risk factor in the development of COPD and the Veteran has a 57 pack/year history of tobacco use. The examiner also opined that asbestos and asbestosis do not cause or aggravate COPD. Thus, it is the Veteran's cigarette smoking, not his military service, which is the most likely cause of his COPD. This VA medical opinion was rendered following a complete review of the Veteran's electronic claims file and includes well-reasoned rationale supporting the examiner's conclusion. The opinion is therefore afforded significant probative value. See Nieves- Rodriguez, 22 Vet. App. at 300-01 (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Veteran's VAMC treatment records also contain evidence suggesting a link between his current COPD condition to his history of tobacco smoking. In November 2003, the Veteran's treating VA nurse practitioner found the Veteran had COPD and recommended that he stop smoking. See Roseburg VAMC, Primary Care Provider, November 2003. A February 2006 VAMC note states the Veteran has a 60 year one pack per day smoking history with COPD. Overall, the Veteran's treatment records from the Roseburg VAMC and the July 2013 VA medical examination weigh against his claim for service connection for COPD. This evidence clearly establishes that the Veteran's current COPD condition was not incurred during service, including as due to asbestos exposure, nor was incurred secondary to his service-connected asbestosis. The Board has considered statements of the Veteran connecting his current COPD diagnosis to asbestos exposure during service and his service-connected asbestosis. However, as a lay person, the Veteran is not competent to opine as to such a complex medical etiology. See Kahana, 24 Vet. App. at 435; see also Jandreau, 492 F.3d at 1377. The Board acknowledges that the Veteran is competent to testify as to observable symptoms, such as shortness of breath, but finds that his opinion as to the cause of his diagnosed COPD cannot be accepted as competent evidence. Id. In sum, the post-service medical evidence of record shows that the first evidence of the Veteran's claimed disability was approximately 50 years after his separation from active duty service. In addition, the weight of the competent evidence of record is clearly against a nexus between the claimed disability, the Veteran's active duty, exposure to asbestos and the Veteran's service-connected asbestosis. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for COPD, to include as a result of asbestos exposure and/or as secondary to service-connected asbestosis, is denied. REMAND The Board finds the Veteran's claim for entitlement to service connection for a respiratory sleep condition, to include as a result of asbestos exposure and/or as secondary to service-connected asbestos must be remanded for additional development prior to adjudication. Pursuant to the Board's June 2013 remand, the Veteran was afforded a new VA respiratory examination in July 2013. See 38 C.F.R. § 3.159(c)(4). However, the VA examiner did not diagnose the Veteran with any current respiratory sleep condition. The VA examiner stated she did not conduct a sleep apnea examination as the Veteran refused a sleep study in 2009 that was required to make the necessary diagnosis. Additionally, the VA examiner cited to new VA document that shows no causal relationship between asbestosis and sleep apnea. Overall, the VA examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness. This VA opinion is inadequate as it is partly based on the lack of testing by VA, is not based upon an adequate examination and provides an insufficient diagnosis and rationale. See Stegall, 11 Vet. App. at 270-71. Although the Veteran refused to undergo a sleep study in 2009, there is no indication that he was asked to undergo such a study in connection with the current examination or that he refused to do so. The VA document referenced by the examiner addressed a causal relationship between asbestosis and sleep apnea, but the examiner did not comment on whether asbestosis could aggravate sleep apnea. Thus, it is necessary to remand this claim and obtain an adequate VA respiratory examination. The VA treatment records in the file date to July 2013. As the Veteran is receiving treatment at VA and the records may be relevant to the claim, upon remand the Board will request the Veteran's complete VA treatment records from July 2013 to present. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain all updated pertinent VA medical treatment records from July 2013 to present. 2. After completion of the foregoing, schedule the Veteran for a VA respiratory examination. The claims file, including a complete copy of this remand, must be made available to the examiner for review prior to the examination. All appropriate tests and studies should be conducted and any consultations deemed necessary should be accomplished. The examiner should: (a) Obtain a sleep study, if necessary. (b) Identify all of the Veteran's current respiratory conditions, including any respiratory sleep conditions. (c) Determine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed respiratory sleep condition is related to service, to include due to exposure to asbestos. (d) Determine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed respiratory sleep condition was caused or aggravated by the Veteran's service-connected asbestosis. The examiner is advised that "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If any aggravation is present, the physician should indicate, to the extent possible, the approximate level of severity any sleep disability (i.e., a baseline) before the onset of the aggravation. A full rationale must be provided for all stated medical opinions. In providing the opinion, the examiner should address the significance of the Veteran's conceded in-service exposure to asbestos; the Veteran's June 1949 entrance examination finding his respiratory system normal and chest X-ray negative; the Veteran's July 2009 complaints of feeling tired during the day with no sleep restoration; the July 2009 VA physician's impression of fatigue and possible sleep apnea with the physician opining that generally patients with COPD have trouble sleeping, are fatigued during the day and it is unlikely that the Veteran has severe obstructive sleep apnea causing his problems; the March 2012 Roseburg VAMC finding of a sleep disorder due to a general medical condition, insomnia type; the July 2013 VA examiner's statement that a new VA document clearly states that asbestosis does not cause asthma, emphysema or sleep apnea; and the Veteran's claims that his current respiratory sleep condition was either caused or aggravated by his in-service exposure to asbestos or his service-connected asbestosis condition. Note: if the examiner concludes that any of the requested opinions cannot be provided without resort to speculation, the examiner should so state and explain why these opinions would be speculative and what, if any, additional evidence would permit such opinions to be made. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs