Citation Nr: 1339265	
Decision Date: 11/29/13    Archive Date: 12/13/13

DOCKET NO.  10-31 588	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service-connection for a respiratory disease.

2.   Entitlement to service-connection for a heart condition or disability also claimed as a heart murmur.


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. Grabia, Counsel


INTRODUCTION

The Veteran had active service from January 1963 to April 1982.  He had Vietnam service and received the combat action ribbon, among other decorations

This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.

The Veteran was afforded a videoconference hearing before the undersigned in May 2013.  A transcript of this hearing is in the file.

The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings-the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  During the May 2013 hearing, the Veterans Law Judge clarified the issues on appeal and asked questions aimed at substantiating the appeal and identifying any outstanding evidence.  The Veteran was offered an opportunity to ask questions regarding his claims.  The Board therefore concludes that it has fulfilled its duty under Bryant.

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 that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

The appeal as to the issues of service-connection for a respiratory disease other than interstitial lung disease, and heart condition or disability is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.

FINDINGSS OF FACT

1.  A respiratory disease, interstitial lung disease, is the result of asbestos exposure in service.

2.  COPD had its onset in active service


CONCLUSION OF LAW

The criteria for service connection for a respiratory disease, consisting of interstitial lung disease and COPD, have been met. 38 U.S.C.A. §§ 1103, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board grants service connection for a respiratory disability.  As this represents a complete grant of the benefit, no further notice or assistance is required to aid the Veteran in substantiating the claim.

Criteria

Establishing service connection generally requires 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.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996). 

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 which provided guidelines for considering asbestos compensation claims, which is now included in M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos."

The manual provisions acknowledge that inhalation of asbestos fibers and/or particles 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).  Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure.  As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others.  The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease.  M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f.

The manual further 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.  M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h.

A veteran's disability or death will not be considered service connected, if it is due to disease or injury attributable to use of tobacco products.  38 U.S.C.A. § 1103(a) (West 2002).  This provision does not preclude service connection for disability or death from a disease or injury that was otherwise shown to have been incurred in active military service.  38 U.S.C.A. § 1103(c) (West 2002).

Background

The Veteran's service personnel records show that he served aboard the U.S.S. New Jersey as a gunnery technician during the Vietnam War.  The Veteran's military occupational title is noted to be highly probable for exposure to asbestos.  In addition he served on several other naval vessels during his 20 years of service.

Service treatment records show that on a periodic physical examination in September 1981 revealed shortness of breath and pounding of the heart attributed to heavy smoking which occurred only after very strenuous activity.  A pulmonary function test (PFT) noted that the Veteran was a 2 pack a day smoker for over 20 years. The assessment was moderate flow obstruction of small airways, possibly due to smoking.

The April 1982 retirement physical examination also noted shortness of breath attributed to heavy smoking, which occurred only after very strenuous activity.  A PFT at that time was normal.  

In December 2008, the Veteran was admitted to a private hospital with severe COPD.  Treatment records dated in January and February 2008 note diagnoses of emphysema, cardiomegaly, pulmonary hypertension, cor pulmonale, and severe apnea.

An August 2009 VA examination noted the Veteran had been treated for COPD since December 2008.  He had no history of rheumatic heart disease, cardiac surgery.  Moderate flow obstruction of small airways during service attributed to heavy smoking was noted, as was the normal spirometry examination in April 1982 at discharge from service.  The examiner noted a diagnosis of COPD in 1998.  The examiner opined that COPD was less likely as not related to asbestos exposure.  He further noted that COPD was not a condition recognized to be associated with asbestos at this time.  

A May 2012 VA examination noted the September 1981 in service examination which noted, "shortness of breath and pounding heart attributed to heavy smoking, occurs only after very strenuous activity."  The April 1982 retirement examination also noted shortness of breath after heavy exercising.  A respiratory examiner had noted the Veteran had chronic COPD requiring oxygen therapy.  He had served on board ship and asbestos exposure was presumed.   He was treated with inhalation bronchodilator and anti-inflammatory medications. 

The examiner found the Veteran had severe COPD which was responsible for the vast majority of his PFT problems.  He might have had some interstitial lung changes as well; but at worst this was considered to be relatively minor compared to COPD.  None of the treatment records for the past 20 years indicated treatment for interstitial lung disease and PFTs never showed a pattern consistent with interstitial lung disease. 

The examiner opined that it was less likely than not that the Veteran suffered from lung disease caused by or as a result of military service.  He further noted that even though the Veteran had some X-rays that were read as showing interstitial lung changes on and off since discharge, the findings never involved the whole lung and were not consistent.  Interstitial lung disease when seen never rose to a level that would cause a significant decrease in lung function.  Furthermore the pattern of disease on PFT showed the cause of decreased lung function to be related to COPD, and not considered service connected.  The Veteran's exposure to asbestos and gunpowder was considered.  COPD was noted not to be a condition recognized to be associated with asbestos at this time.  

Analysis 

The record documents current lung disease identified as COPD and interstitial lung disease.   The abnormal PFT in service, along with the conceded asbestos exposure establishes an in-service event.

The May 2012, examiner seemed to recognize the interstitial disease, albeit minor, related to in-service asbestos exposure.  As noted, inhalation of asbestos fibers and/or particles can result in various conditions with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis).  M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f.  

The abnormal PFT and consistent reports of coughing in service provide evidence of the incurrence of COPD in service.  There is some evidence to the contrary.  The PFT at service exit was interpreted as normal.  The evidence is in relative equipoise.  Resolving reasonable doubt in the Veteran's favor, COPD is deemed to have been incurred in service.  The Veteran's claim for service connection for a respiratory disease is granted. 

ORDER

Service connection for a respiratory disease is granted.


REMAND

With regard to the claim for service connection for a heart disorder, the Veteran testified that he was treated following service at the Great Lakes Naval Base Hospital and also at a local VA Hospital (North Chicago VA Medical Center) from the time of his retirement from service in 1982 until approximately 2004.  None of these treatment records are part of the record.  VA has a duty to obtain relevant records of Government and private treatment. 38 U.S.C.A. § 5103A (b) (West 2002); Massey v. Brown, 7 Vet. App. 204 (1994).  These records are relevant to the appeal and efforts to obtain them should be conducted following the procedures under 38 C.F.R. § 3.159.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should obtain all relevant VA medical records, including from the North Chicago VA Medical Center, dated from April 1982 to the present, and any other medical records regarding treatment for the Veteran's heart condition as may be available from private sources that are identified by the Veteran, to include post service treatment records from the Great Lakes Naval Base Hospital.  

2.  Ask the Veteran to complete an authorization to obtain records of any cardiac treatment from private sources.  If the Veteran fails to provide any necessary authorization, tell him that he may obtain and submit the records himself.

3.  Efforts to obtain any Government or VA records must continue until they are obtained, unless it is reasonably certain that they do not exist, or that further efforts would be futile.

If any requested records cannot be obtained, inform the Veteran of this fact, of the efforts made to obtain the records and of any further actions that will be taken with regard to his claim. 

4.  Thereafter, schedule the Veteran's for a VA cardiology examination.  The claims file and any relevant records in Virtual VA must be made available to and be reviewed by the examiner. The examiner should provide the following opinions:

a.  Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed cardiac disability, including systolic heart murmur, had its clinical onset during active service or is otherwise the result of a disease or injury in service.

b.  Whether it is at least as likely as not (50 percent or greater probability) that any cardiac disability, including systolic heart murmur, had been aggravated (made worse) by a service connected disorder, to include a respiratory disability.   

The examiner should specifically address the evidence of record, and specifically address the significance, if any, of these clinical findings and why they are or are not indicative of cardiac disability. 

The examiner should additionally address how these findings relate to the Veteran's in-service "pounding of the heart" and post-service reports of congestive heart failure and systolic valve murmur.

The examiner must provide reasons for all opinions provided.

If the opinion cannot be resolved without resorting to speculation, the examiner must provide reasons as to why this is so and whether additional information would permit the necessary opinion to be provided.

3.  The Veteran is advised that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 

4.  If any benefit is not granted in full, issue a supplemental statement of the case.  The case should be returned to the Board for further appellate consideration, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matters 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. 2013).


____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs