Citation Nr: 1339650 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 09-48 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to service connection for pneumothorax, to include as a result of asbestos exposure. 2. Entitlement to service connection for residuals, adenocarcinoma of the cecum, claimed as a result of asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from March 1966 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. In June 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in August 2013. In August 2013, the Board informed the Veteran and his representative that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided them a copy of that opinion and indicated that the Veteran was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. Although to date the Veteran has not responded, in October 2013 his representative offered argument in support of his appeal. As such, the Board will proceed with the consideration of his case. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's pneumothorax was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including asbestos exposure. 2. The preponderance of the evidence shows that the Veteran's residuals, adenocarcinoma of the cecum, was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including asbestos exposure. CONCLUSIONS OF LAW 1. A pneumothorax was not incurred in or aggravated during service and was not proximately due to or the result of exposure to asbestos. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Residuals, adenocarcinoma of the cecum, were not incurred in or aggravated during service and were not proximately due to or the result of exposure to asbestos. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content, as to all claims. With respect to the Dingess requirements, in the August 2008 letter, the RO provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment, VA treatment records, and private treatment records. An opinion from a VHA specialist was obtained in August 2013, and the findings from the report are adequate for the purposes of deciding the claims on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims and no further assistance to develop evidence is required. II. Analysis 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. 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) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 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. See Department of Veterans Benefits, Veterans Administration, 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 VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (hereinafter "M21-1"). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 were rescinded and reissued as amended in a Manual rewrite (MR) in 2005. See 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." VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. 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. The Veteran served in the Navy and his personnel records show that his specialty was airman and that he served on the USS Ticonderoga. Therefore, the Board finds that he is presumed to have been exposed to asbestos during service. The service treatment records show that in November 1966 the Veteran was diagnosed with pneumonia of the right lower lobe. Chest x-rays showed persistent clearing lung fields, and the Veteran was noted to be improving rapidly. Later in November 1966 he was declared fit for duty. The Veteran's lungs and chest were normal at the December 1967 discharge examination. The Veteran wrote in a statement submitted in January 2008 that in 1976 or 1977 his left lung collapsed while he was swimming. He was told by a surgeon that the lung collapsed due to the in-service pneumonia and that he had a blister on the left lung that burst under stress. In a September 2008 statement, the Veteran denied smoking, and a May 2006 VA outpatient treatment record reflects that the Veteran was not a smoker. The Veteran was diagnosed with adenocarcinoma of the cecum in January 2008. In August 2013 an opinion was obtained from a VA pulmonologist who reviewed the record. He noted that the pathology report from the adenocarcinoma of the cecum tumor made no reference to asbestos particles or to bodies being present in the resected tissue. The physician felt it was extremely unlikely that the adenocarcinoma of the cecum was related to asbestos exposure during service. He noted that the organ most commonly affected by asbestos exposure is the lung and respiratory tract. The most common abnormality in persons exposed to moderate amounts of asbestos fibers is pleural thickening in a plaque-like distribution. The Veteran's radiographs showed no such evidence. While asbestos can affect the abdomen, the physician wrote that that was only true for mesothelioma of the abdomen. The physician continued that this was a totally different disease from adenocarcinoma of the colon. Medical literature was cited that indicates no risk to the gastrointestinal tract from exposure to asbestos. Furthermore, in the case of the Veteran there was no evidence of asbestos fibers in the resected tissue from the colectomy. The VA pulmonologist wrote in regards to the pneumothorax that the blister on the lungs that the Veteran reported having in the 1970s was the most likely cause. He noted that this was the most common cause of spontaneous pneumothorax and that pneumonia was in the right lung and the pneumothorax was in the left lung. If the prior pneumonia had a role in the pneumothorax it should have been in the same lung. Finally, several chest x-rays revealed no evidence of scarring or other damage of either lung. Therefore, it was less likely that the pneumothorax was due to the prior pneumonia. As for whether the pneumothorax was related to in-service asbestos exposure, the physician noted that the Veteran was an airman and had no direct exposure to high concentrations of asbestos fibers. Therefore, it was unlikely that the Veteran had any significant ill effects from asbestos exposure. While mesothelioma can be associated with small exposures, other asbestos related problems are more directly related to the amount of asbestos dust in the environment. The chest x-rays from service and 2008 do not show evidence of significant effects on the lungs from asbestos exposure. Therefore, it was extremely unlikely that the pneumothorax was due to the possible exposure to asbestos. For asbestos to have been causally related to the pneumothorax there should have been significant lung scarring associated with the process, and this has not been shown in any x-rays. The VA pulmonologist's August 2013 opinions are given probative value because he was informed of the pertinent facts, fully articulated the opinions, and supported the opinions with reasoned analyses. See Nieves-Rodriguez, 22 Vet. App. at 303-04; see also Stefl, 21 Vet. App. at 124. It is also noted that the post-service treatment records that have been associated with the claims file provide no indication that the Veteran's pneumothorax and residuals of adenocarcinoma of the cecum are related to service, including the in-service pneumonia, or are related to in-service exposure to asbestos. In light of the foregoing, the Board finds that the preponderance of the evidence is against entitlement to service connection for pneumothorax and residuals of adenocarcinoma of the cecum. In reaching this determination, the Board acknowledges the Veteran's report that a doctor told him in 1976 or 1977 that his left lung collapsed because of the in-service pneumonia. The Veteran is competent to report a diagnosis by a medical professional. However, the Board does not find the Veteran's report to be credible given the VA pulmonologist's opinion that pneumonia in one lung would not cause pneumothorax in the other lung. Pneumothorax and adenocarcinoma of the cecum require specialized training for a determination as to diagnosis and causation, and are therefore not susceptible of lay opinions on etiology. The Veteran's statements on etiology are therefore not afforded probative value. See Jandreau, 492 F.3d at 1376-77; citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.2006)) (though the Federal Circuit held that lay evidence may be competent to establish a diagnosis of a condition, it did not state that lay evidence may be used to determine medical etiology). In addition, the credible lay evidence does not show recurrent symptomatology since service given that pneumothorax and adenocarcinoma of the cecum did not occur for years after service. In sum, the Board finds that the weight of the evidence is against the claim of service connection for pneumothorax and residuals, adenocarcinoma of the cecum. As the preponderance of the evidence is against the claims, the Board must deny service connection and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for pneumothorax, to include as a result of asbestos exposure, is denied. Service connection for residuals, adenocarcinoma of the cecum, claimed as a result of asbestos exposure, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs