Citation Nr: 1337946 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-17 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a dypenea to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Veteran and wife ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1972 to June 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In January 2011, the Veteran and his wife provided testimony before a Decision Review Officer at the RO. A transcript is included in the claims file. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file, which contains relevant VA records that have also been reviewed. FINDING OF FACT The weight of the evidence is against a finding that there is a nexus between a current diagnosis of dyspnea (claimed as breathing difficulties) and service, to include in-service asbestos exposure. CONCLUSION OF LAW Dyspnea was not incurred in or aggravated by service and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1103, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2009). Thus, any error related to this element is harmless. An October 2007 VCAA letter fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, this letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available, relevant service treatment records and VA medical records are in the file. The Board notes that in his original claim, the Veteran indicated private treatment for his breathing difficulties, but no private treatment records for his pulmonary disorder have been obtained. In an updated claim, the Veteran listed only VA treatment and, at the DRO hearing, the Veteran also only identified VA treatment of his breathing complaints. The RO requested the Veteran identify all relevant treatment providers in the October 2007 VCAA letter, however, neither private treatment providers nor authorizations were received. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). The Board concludes that all records identified by the Veteran as relating to the claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided a VA examination for his disability claims in January 2011. The examiner reviewed the claims file, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. The Board finds the examination report to be thorough and complete. Therefore, the Board finds the examination report and opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service connection A. Legal Criteria The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, 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 claims, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present 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). Certain diseases, to include organic diseases of the nervous system, such as hearing loss disability, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In cases involving asbestos exposure, the claim 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 several guidelines for compensation claims based on asbestos exposure. In 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See VA Department of Veterans Benefits (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 the VA Adjudication Procedure Manual with updates in 2005 and 2006. M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1MR), Part IV, Subpart ii, Ch.2 Section C, Topic 9 (Dec. 13, 2005) and Section H, Topic 29 (Sep. 29, 2006). The guidelines note that the latency period for asbestos-related diseases varies from 10 to 45 or more years between the first exposure and development of a disease and that the exposure may have been direct or indirect. The guidelines point out that 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. The guidelines further specify that asbestos fibers may produce asbestosis, pleural effusions and fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. With these claims, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether 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, keeping in mind the latency and exposure information discussed above. The VA General Counsel has held that relevant factors in the adjudication manual are not substantive, but must be considered by the Board in adjudicating asbestos-related claims. VAOPGCPREC 4-00. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; see also 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), citing Gilbert, 1 Vet. App. at 54. B. Factual Background Service treatment records (STRs) do not include any complaints of breathing problems. In an April 1985 reserve enlistment examination, lungs and chest were noted as normal. The Veteran denied shortness of breath, chronic cough, and asthma. In a February 1986 private treatment records, the diagnosis was bronchitis. In a September 2007 VA progress note, the Veteran complained of left-sided chest soreness that worsens with inspiration. The examiner noted a history of asbestos exposure. He stated he has had the condition for four years, it is intermittent and unchanged. The Veteran stated he saw his primary care provider four years ago and told he had "pleurisy." The Veteran also complained of shortness of breath when he walks 20 feet and stair climbing. It has slowly worsened over the past three to four years. He reported he lost 35 lbs, but his breathing is unchanged. The examiner noted a history of asbestos exposure. On examination, the lungs were clear to auscultation and resonant to percussion. In an October 2007 claim, the Veteran asserted that he was extensively exposed for long periods of time to asbestos in service. He went through 2 documented dry dock yard periods where asbestos was removed and restored to the boilers and piping. This was done over a period of several months. He removed fire brick and asbestos lagging from piping and re-installed it. He currently has difficulty breathing, shortness of breath, frequent lung infections. The Veteran reported he does not smoke or use tobacco products of any type. In an October 2007 VA progress note, the Veteran reported he started smoking when he was 18, however, totally quit tobacco when he was 40. He would smoke up to one half a pack of cigarettes a day. In a January 2008 VA pulmonary consultation, the Veteran complained of mild shortness of breath. The Veteran stated he gets short of breath on walking one to two blocks. He does not smoke, he quit at the age of 40. He reported he had a 2010 CT scan of the chest for left sided chest pain which showed bilateral pleural thickening and 6 mm left lower lobe pulmonary node. After a physical examination, the assessment was mild chronic dyspnea on exertion. The examiner noted that the etiology needed to be worked up. The examiner found that Veteran's marked obesity and degree of deconditioning are probably contributing to shortness of breath. The examiner indicated that it is a probability that he might have some component of COPD or asthma. During a January 2011 VA examination, the Veteran reported he had a gradual onset of shortness of breath with exertion over the last few years and worsening. He has episodes of "pleurisy" pain in right lower chest wall which lasts about two weeks. He has pain with breathing. He smokes one to one and half packs per day. The Veteran complained of soreness in the right lower rib cage, pain with lying on the right side and with taking a deep breath. Pulmonary examination showed no abnormal breath sounds. The examiner noted obesity is a condition that may be associated with pulmonary restrictive disease. An associated spirometry or pulmonary function test (PFT) report was suggestive of a mild restrictive ventilator defect. Lung volume should be done for further assessment if clinically warranted. The diagnosis was mild restrictive lung disease likely due to obesity. The examiner noted that CT scans of the lungs show stable pulmonary nodules on repeat scan, with no evidence of asbestos exposure. PFTs show mild restrictive disease most likely due to obesity. During a January 2011 DRO hearing, the Veteran testified that his VA treating physician stated that there is jaggedness going around the lungs and pleural lining, and that's an indication of asbestos. It is totally dormant and may not do anything. C. Analysis Initially, the Board concedes that the Veteran had exposure to asbestos in service. The Board further notes, however, that the Veteran's STRs do not show that he was found to have any pulmonary disorder. His lungs were normal at the time of his reenlistment for service, and there is no post-service medical evidence suggesting the presence of any pulmonary disorder until many years following the Veteran's discharge from service. Significantly, the record also includes no medical opinion suggesting that the Veteran's dyspnea is attributable to the Veteran's active service. To the contrary, the January 2011 VA examiner found no physical evidence of asbestos exposure and specifically states that the most likely cause of the Veteran's dyspnea was obesity. Consequently, the Board finds that entitlement to service connection for dyspnea is not warranted as the preponderance of the evidence is against service connection. VA must also consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence presented by the Veteran and his representative in the form of correspondence to VA and his aforementioned testimony, in which it has generally been argued that his dyspnea is related to his service. The Board considered the statements of record from the Veteran attempting to etiologically link his current breathing problems to his military service. The Board acknowledges that he can attest to factual matters of which he has first-hand knowledge, such as ongoing shortness of breath, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran has not asserted that his dyspnea had its onset in service and continued thereafter. Instead, he is asserting that it is related to exposure to asbestos in service. Laypersons, however, are not generally competent to render an opinion as to the cause or etiology of any current disability because they do not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Therefore the Board concludes that the Veteran's assertions are significantly outweighed by the opinion of the January 2011 medical professional. As discussed, the January 2011 VA examiner clearly reviewed the Veteran's medical history, interviewed the Veteran, and offered a detailed rationale for the expressed opinion. The VA examiner also conducted a thorough physical examination and reviewed the results of relevant diagnostic testing, including the results of pulmonary function tests and a CT scan of the chest. Thus, the Board finds the January 2011 VA opinion to be competent and the most persuasive of record. The Board has also considered the Veteran's testimony that a treating VA physician, Dr. G., explained to him that there is jaggedness going around the lungs and pleural lining, and that such findings are an indication of asbestos. It has been recognized by the Court that a lay person can be competent to state what a treating physician told him or her during the course of treatment and relate the substance of that information. See Jandreau v. Nicholson, 492 D. 3d at 1376-77. The Board notes, however, the it has reviewed the VA treatment records associated with the claims file and is unable to identify such a finding by Dr. G. In fact, the January 2008 VA pulmonary consultation previously noted was completed by Dr. G., and in that report Dr. G. did not indicate that he had identified any findings consistent with asbestos exposure. Dr. G. noted the same bilateral pleural thickening and 6 mm left lower lobe pulmonary in a 2008 CT scan that was also found by the January 2011 VA examiner in a 2010 CT scan but did not suggest that either was the result of asbestos exposure. Dr. G.'s assessment was mild chronic dyspnea on exertion and he concluded that the etiology needed to be worked up, but the physician also found that Veteran's marked obesity and degree of deconditioning are probably contributing to shortness of breath. Such conclusions are consistent with those of the January 2011 VA examiner. A subsequent May 2011 consultation report is also of record, which shows that the Veteran was seen for follow-up with Dr. G. At that time, Dr. G. noted that the nodule seen on CT scan was stable and that no further follow-up was needed with respect to the nodule. No indication was made in that report of any findings found to be consistent with asbestos exposure. Given the absence of any documented indication by Dr. G. of findings consistent with asbestos exposure, the Board finds the Veteran's recollection to be of little probative value, and far outweighed by findings of the January 2011 VA examiner. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. ORDER Entitlement to service connection for a dyspnea to include as secondary to asbestos exposure is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs