Citation Nr: 1336408	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  09-21 158	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to service connection for asbestosis.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Jonathan Tracy, Associate Counsel



INTRODUCTION

The Veteran served on active duty from December 1964 to December 1968. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.  
 
In a March 2011 decision, the Board reopened the Veteran's claim for service connection for asbestosis and denied entitlement to service connection for asbestosis and a cardiac condition.  The Veteran appealed the denial of entitlement to service connection for asbestosis to the United States Court of Appeals for Veterans Claims (Court).  In an October 2012 memorandum decision, the Court vacated the decision and remanded the claim for benefits based on service connection for asbestosis for readjudication.  The Veteran did not appeal the claim for entitlement to service connection for a cardiac condition.  Thus, the Board decision is final on that issue and it is not before the Board.

The Board remanded the claim in June 2013.  There has been substantial compliance with the mandates of the remand and the Board will proceed to adjudicate the appeal.  See Stegall v. West, 11 Vet. App. 268 (1998).

This appeal was processed using the paperless claims processing Veterans Benefits Management system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.


FINDING OF FACT

There has been no demonstration by competent medical evidence of record that the Veteran has asbestosis.



CONCLUSION OF LAW

The criteria for service connection for asbestosis have not been met.  38 U.S.C.A. § 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).


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, 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).

Notice was furnished to the Veteran in an April 2008 letter, prior to initial adjudication of this matter.  

The duty to assist has also been met and appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file includes service treatment records (STRs), private medical reports, Social Security Administration (SSA) records, VA medical records and the statements of the Veteran in support of his claim.  The Board notes that the Veteran asked VA to obtain certain other private medical records.  However, those records were unavailable.  On appeal, the Court held that VA satisfied its duty to assist the Veteran in attempting to obtain those records.  Neither the Veteran nor his representative have identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.   
  
The Veteran was afforded a VA examination in July 2006; however, the basis of the Court decision was a perceived ambiguity in the examination's findings.  The Board remanded the appeal for a new medical opinion and a VA examination was conducted in August 2013.  The Board finds that the August 2013 VA examination and opinions provided are adequate.  The examiner considered the Veteran's history and the current examination results, and provided rationales for the opinions offered.  Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). 

Hence, no further notice or assistance to the appellant is required.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Legal Criteria

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110 , 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. § 5107(b).

III.  Analysis

The Veteran seeks entitlement to service connection for asbestosis.  The Veteran asserts that he was exposed to asbestos during service aboard ships in the U.S. Navy and that he currently has asbestosis as a result of such exposure.   

The Veteran served aboard ships in the Navy and it is conceded that he was exposed to asbestos during service.  At issue is whether he currently has asbestosis.

The service treatment records do not show any findings related to asbestosis.  In January 1967, the Veteran was seen after experiencing "respiratory difficulty."  He reported sharp pains in the chest, especially with deep breathing.  Examination noted the chest was clear, breath sounds were normal in all areas, and there was no pain with pressure on the chest.  There were no further respiratory complaints noted in service, and the service separation examination in December 1968 noted normal lungs and a healthy chest upon examination by X-ray.  

A November 2005 private medical record noted complaints of chest pain and cough.  The Veteran reported a history of asbestos exposure in the Navy as well as afterwards while working at Gates Rubber Company.  The physician recommended that the Veteran go to VA for a chest X-ray.  

As detailed in the Court decision, the Veteran underwent a VA examination in June 2006 and the examiner provided an opinion dated in July 2006.  The examiner noted the Veteran's history of in-service and post-service asbestos exposure and report of chest pain, cough and dyspnea at rest.  Pulmonary function testing (PFT) and chest x-ray were described as normal.  The examiner opined that the Veteran was, more likely than not, exposed to asbestos and thus met the second criterion of the American Thoracic Society (ATS) criteria for the diagnosis of nonmalignant asbestos-related disease (causation).  Further, although PFTs were normal, the Veteran exhibited functional impairment as demonstrated by symptoms, and thus met the fourth ATS criterion for asbestosis.  However, the examiner found that there was no evidence of structural pathology (the first ATS criterion) consistent with asbestos-related disease to support a diagnosis of asbestosis as required by the ATS criteria and noted that the Veteran's "symptoms suggest Asthmatic Bronchitis."  The third ATS criterion is exclusion of alternative plausible causes for the findings.  The examiner thus opined that symptoms or other evidence of lung disease noted at the examination were less likely than not caused by or a result of asbestos exposure during either Navy or civilian occupation and the Veteran less likely than not has asbestosis.  A June 2006 note signed by the Chief of Pulmonary Medicine reviewed the findings of the PFTs and noted a diagnosis of "++++Asbestosis++++," and that "ATS criteria [have been] met."  

A December 2007 SSA examination report noted that asbestosis had "apparently previously [been] diagnosed and documented."  However, the SSA examiner indicated that accurate measurements could not be obtained because the Veteran was "splinting" his respirations, due to back pain.  

The record contains written statements from D.S., M.D., dated in June 2009 and July 2009.  In the June 2009 statement, Dr. S. noted that the Veteran had been his patient since 1982 and had been treated for "respiratory problems stemming from asbestos exposure earlier in his life."  In the July 2009 statement, Dr. S. clarified that while the Veteran had reported a history of exposure to asbestos in service and in subsequent civilian employment, Dr. S. had "reached no conclusion regarding any of his past or current pulmonary symptoms as far as etiology including a history of asbestos exposure."  

In the October 2012 decision, the Court found that the June 2006 VA examination findings were ambiguous because the examining physician noted there was no evidence of structural pathology consistent with asbestos-related disease to support a diagnosis of asbestosis as required by the ATS criteria, but the Chief of Pulmonary Medicine noted a diagnosis of "++++Asbestosis++++" and that the ATS criteria for an asbestosis diagnosis had been met.  

Pursuant to the recent Board remand, a new VA examination was conducted in August 2013.  In reviewing the medical history, the examiner noted the Veteran's history of asbestos exposure in-service and after.  In response to the question whether the Veteran has or has ever been diagnosed with a respiratory condition, the examiner noted "asbestos exposure (by history), with NO evidence of asbestosis."  

The Veteran reported that he was not currently being treated for any respiratory condition, but was worried about his asbestos exposure.  The examiner noted the 2006 PFTs were normal, as read by a pulmonologist.  The examiner further commented that the word "asbestosis" appears in the 2006 PFT request, and "this was NOT the diagnosis, but the consideration for ordering the 2006 test."  The pulmonologist interpreted the 2006 PFT as normal and "this rule out the presence of asbestosis."  PFTs conducted as part of the current examination were normal.  "There is no diagnosis of asbestosis."  The current examination also included chest x-rays and high resolution computed tomography.  The examiner reviewed the record and diagnostic testing results and stated that the "Veteran does not have any active pulmonary disease at this point, and he has no evidence of asbestosis."  

The examiner reported that the August 2013 pulmonary function test results were also normal.  The pulmonary function test and the X-ray indicated to the examiner that the Veteran does not have asbestosis.

Based on a review of the record, the Board finds that service connection for asbestosis is not warranted because there is no evidence that the Veteran has asbestosis.  The 2103 VA examiner addressed the ambiguity in the 2006 VA examination and explained that the notation "++++Asbestosis++++" appears in the context of a request for a pulmonary function test, the results of which "were normal."  On review, the Board notes that the notation was dated in June 2006 and pre-dated the examiner's opinion, which was provided in July 2006.  

The December 2007 SSA examiner noted only that "asbestosis had apparently previously [been] diagnosed and documented," but was unable to complete diagnostic testing.  It appears that examination relied only on the Veteran's report of a previous diagnosis of asbestosis, which is not supported by the objective record.  

The initial statement of Dr. S. that appears to attribute a current respiratory problem to asbestos exposure was negated by that physician's subsequent statement that he had reached no conclusion as to the etiology of the Veteran's pulmonary symptoms.  

The Veteran's own statements to the effect that he has asbestosis have also been considered.  Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case, whether the Veteran has asbestosis.  Such an etiology finding falls outside the realm of common knowledge of a lay person because the actual diagnosis of asbestosis requires objective testing.  See Kahana v. Shinseki, 24 Vet.App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  The Board finds the VA examiner's opinion more probative because it was rendered by a physician, after an examination and review of the record and included a rationale for the opinion provided. 

The competent medical evidence from the 2013 VA examination report provides that the "Veteran does not have any active pulmonary disease at this point, and he has no evidence of asbestosis."  Absent competent and credible evidence of a current disability during the appeal period, service connection for asbestosis is not warranted.  Brammer v. Derwinski, 3 Vet. App. 223 (1992). 


ORDER

Entitlement to service connection for asbestosis is denied.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs